UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

__________________

No. 92-2503

__________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JOSE ANTONIO PUIG-INFANTE,

a/k/a ALEJANDRO MONTANA,

MARIA ABIGAIL PUIG,

JUAN ERNESTO CASTRO-CUELLAR,

ARACELI CASTRO, PERLA DE LOS SANTOS,

Defendants-Appellants.

______________________________________________

Appeal from the United States District Court for the

Southern District of Texas

______________________________________________

(April 13, 1994)

Before JOHNSON, GARWOOD and JOLLY, Circuit Judges.

GARWOOD, Circuit Judge:

Defendants-appellants were charged with and convicted of

participating in a conspiracy involving the importation of

marihuana from Mexico into the United States. Araceli Castro,

Per la De Los Santos, Maria Abigail Puig (Abigail Puig), Juan

Ernesto Castro-Cuellar (Juan Castro), and Jose Alejandro PuigInfante (Jose Puig) were convicted of conspiracy, importation, and

other drug charges. Appellants raise numerous issues on appeal.

We affirm in part, reverse in part, and vacate and remand in part.2 Facts and Proceedings Below

The story of this conspiracy begins sometime in 1986 or 1987,

in Monterrey, Mexico, when Don Roman (Roman) entered into an

agreement with Hector Villareal-Rojas (a/k/a Tito) to supply Tito

with marihuana from Mexico. The two agreed that Roman would

arrange for the marihuana to be driven from the interior of Mexico,

across the United States border, and into Houston. Tito arranged

on his own for distribution of the marihuana in Houston once it was

delivered to him.

In 1987, Roman was arrested and his part of the operation was

taken over by one of the delivery drivers, Alejandro Acosta

(Acosta), and his family. Acosta would arrange to transport the

marihuana from the interior of Mexico to the vicinity of Monterrey,

Mexico, where it would be stored while awaiting transportation to

the border city of Nuevo Laredo, Mexico, and ultimately into the

United St ates through Laredo, Texas. Initially, Acosta was

assisted by his wife, Martha Idalia Garcia-Bernal (a/k/a Martha

Acosta), by his sisters, appellant Araceli Castro, appellant Perla

De Los Santos, and appellant Abig ail Puig (collectively, the

sisters), and by his brother-in-law, appellant Juan Castro, as well

as by various minor participants. Acosta's wife, sisters, and

brother-in-law supplied the drivers to transport the marihuana (in

what were known as runs or loads) from Monterrey to Nuevo Laredo,

across International Bridge No. 2 into the United States at Laredo,

through the United States Border Patrol checkpoint station on

Interstate 35, and on to Houston. Additional such runs were made

to Florida, Georgia, and San Antonio, Texas.3

The organization developed a standard operating procedure.

First, drivers were recruited and briefed on the procedures by one

of the sisters. Aided by friends and relatives, the sisters would

provide the drivers with documents and permits for travel in the

Mexican interior. The drivers would then travel to Sabinas or

Montemorelos, Mexico, where the vehicles were load ed with

marihuana. An amount of marihuana ranging from forty to one

hundred pounds would be divided into two-pound plastic bundles that

were painted black to minimize detection and concealed in the

fenderwells, under the front and rear bumpers, in the spare tire

compartments, and in false gas compartments in the late model

vehicles. The vehicles used for the runs were purchased by the

organization and registered in the name of one of the drivers, to

conceal the true ownership and purpose of their use.

After loading the marihuana, the drivers would return to Nuevo

Laredo, wash their vehicles, and remove their Mexican travel

sticker so that border patrol agents would not realize that they

had been to the interior. From Nuevo Laredo they would cross the

international border into Laredo. Once across the border, the

drivers repor ted their safe passage to one of the sisters or to

Martha Ac osta; they reported again after they passed through the

checkpoint at Cotulla, Texas. The loads were then delivered to

Tito in Houston. After Tito unloaded the vehicles and weighed the

marihuana, either he or the driver reported the number of pounds to

the Acosta sisters in Laredo. The driver would then return to

Laredo, often with cash payments for the load.

Appellant Jose Puig entered the conspiracy shortly after his1 Two drivers employed by the Castros and Perla De Los Santos,

Bruce Coggins (Coggins) and Mario Sergio Cruz (Cruz), agreed to

cooperate with the DEA. Coggins agreed to become a DEA informant

after he was apprehended by United States Customs agents while

trying to cross the International Bridge with a carload of

marihuana. While working with the DEA, Coggins began driving

loads for Jose Puig. During his tenure as a driver for the

organization, Coggins tape recorded several conversations he had

with the Puigs and Castros. Additionally, Coggins introduced an

undercover DEA agent to Juan Castro, who later offered the agent

a job running loads of marihuana. Cruz agreed to become an

informant for the DEA after he was apprehended by Border Patrol

with sixty-three pounds of marijuana in the trunk of the vehicle

he was driving. Thereafter, Cruz tape-recorded several

4 release from the Webb County Jail on October 14, 1988. In December

of 1988, Alejandro Acosta was arrested; after his arrest he

directed his end of the operation from prison, and Tito began

dealing directly with the sisters. After Acosta's arrest, the

Puigs established a modus operandi somewhat distinct from Perla De

Los Santos and the Castros, picking up their marihuana in different

locations in Mexico and generally delivering the contra band to

Georgia or Florida. Perla De Los Santos and the Castros continued

to make their deliveries to Houston.

I n February 1989, the Drug Enforcement Administration (DEA )

seized a vehicle containing a load of marihuana which was

registered in the name of one of the drivers, Gloria Valles

(Valles). When confronted by the DEA, Valles agreed to become a

paid informant. As part of the arrangement, Valles tape recorded

a number of conversations with the appellants and also assisted the

DEA in introducing in to the conspiracy a confidential informant.

In addition to the inroads into the conspiracy made through Valles,

t he DEA was also able to secure the cooperation of tw o other

drivers who worked for the o rganization, 1 as well as to introduceconversations he had with Araceli Castro, Perla De Los Santos,

and Juan Castro.

2 The indictment also charged eleven additional coconspirators, each of whom eventually pleaded guilty to the

charges, pursuant to plea agreements.

5 other undercover DEA agents into the conspiracy.

DEA surveillance lasted two years and the investigation

produced a substantial amount of information about the conspiracy.

On August 8, 1991, a grand jury indictment was returned against

appellants Araceli Castro, Perla De Los Santos, Abigail Puig, Jose

Puig, and Juan Castro charging twenty-four violations of Title 21

Controlled Substances Act and Title 18 Racketeering Act

. 2 The

indictment alleged that the appellants were participants in a

conspiracy lasting from 1987 to 1991. Specifically, all of the

appellants were charged with conspiracy to import in excess of

1,000 kilograms of marihuana, in violation of 21 U.S.C. §§ 963,

952(a) and 960(a)(1), and with conspiracy to possess with intent to

distribute in excess of 1,000 pounds of marihuana, in violation of

21 U.S.C. §§ 846 and 841(a)(1). They were also charged with aiding

and abetting the imp ortation of marihuana, in violation of 21

U.S.C. §§ 952(a) and 960(a)(1); aiding and abetting the possession

of marihuana with intent to distribute, in violation of 21 U.S.C.

§ 841(a)(1); and, aiding and abetting money laundering, in

violation of 18 U.S.C. §§ 2, 1956(a)(1) (A)(i). Araceli Castro,

Perla De Los Santos, and Abigail Puig were also charged with

engaging in a Continuing Criminal Enterprise, in violation of 21

U.S.C. § 848. Finally, Juan Castro and Araceli Castro were charged

with knowingly employing a minor to assist them in avoiding3 The district court ordered that all of Juan Castro's

sentences run concurrent with the remaining time on his December

19, 1991, conviction in separate proceedings in the Western

District of Texas for marihuana trafficking.

6 detection and apprehension for the conspiracy to possess with the

intent to distribute and the underlying possession offenses, in

violation of 18 U.S.C. § 2 and 21 U.S.C. § 861(a)(1).

The case was tried before a jury in the United States District

Court for the Southern District of Texas, and on April 2, 1992, the

jury returned a guilty verdict on all counts against all appellants

except Perla De Los Santos. Perla De Los Santos was acquitted on

the Continuin g Criminal Enterprise charge, one count of

importation, and one count of possession with intent to distribute,

but was convicted of all remaining charges.

The district court, with one exception n oted below, adopted

the findings and recommendations of the presentence investigation

reports (PSRs) for all of the app ellants, and sentenced them

accordingly. The court sentenced Perla De Los Santos to concurrent

sentences totalli ng 240 months, followed by 8 years' supervised

release. Araceli Castro was sentenced to concurrent sentences

t otalling 292 months, followed by 5 years' supervised release.

Ju an Castro was sentenced to concurrent sentences totalling 285

m onths, followed by 10 years' supervised release. 3 Abigail Puig

was sentenced to concurrent sentences totalling 292 months,

followed by 10 years' supervised release. Finally, after modifying

the PSR's finding regarding the amount of marihuana attributable to

Jose Puig under the Sentencing Guidelines, the court sentenced Jose

Puig to concurrent sentences totalling of 292 months, followed by7

10 years' supervised release. Following sentencing, the

appellants each timely filed a notice of appeal to this court.

Discussion

On appeal, appe llants assert numerous claims of error,

including the following contentions: (1) the existence of a

material variance between the indictment and the proof adduced at

trial; (2) the government's failure to adequately prove certain of

the money laundering charges; (3) the failure of the court to make

proper findings under the Sentencing Guidelines; (4) the improper

enhancement of sentences for prior convictions; (5) the

insufficiency of evidence to support the conviction for employment

of a minor to assist in drug trafficking; (6) the insufficiency of

the evidence to support conviction for im portation of marihuana;

(7) the inclusion of prejudicial, explanato ry parentheticals in

transcripts of tape recorded conversations; and (8) i mproper

judicial comments at trial. We consider these issues in this

order.

I. Material Variance

Araceli Castro , Perla De Los Santos, Abigail Puig, and Jose

Puig argue that a material variance existed between the single

conspirac y alleged in the indictment and the evidence adduced at

trial. The appellants contend that the evidence proved the

existence not of a single, overarching conspiracy, but of several

separate and distinct conspiracies. Jose Puig, Abigail Puig, and

Perla De Los Santos claim that the evidence demonstrated not a

s ingle organization with a common goal, but instead two separ ate

marihuana importing and distributing networks that operated8

independently of each other, one run by the Castros and Perla De

Los Santos, the other run by the Puigs. Araceli Castro claims that

the evidence e stablished the existence of four or five distinct

networks competing for business.

"A material variance occurs when a variation between proof and

indictment occurs, but does not modify an essential element of the

offense charged." U nited States v. Thomas

, 12 F.3d 1350, 1357 (5th

Cir. 1994). "We will not reverse a conviction for such a variance

in the evidence unless 1) the defendant establishes t hat the

evidence the government offered at trial varied from what the

government alleged in the indictment, and 2) the variance

prejudiced the defendant's substantial rights." United States v.

Jackson

, 978 F.2d 903, 911 (5th Cir. 1992) (citing United States v.

Richerson

, 833 F.2d 1147 (5th Cir. 1987) and Berger v. United

States

, 55 S.Ct. 629 (1935)), cert. denied

, 113 S.Ct. 2429 (1993).

A. Variance

The indict ment charged two conspiracies lasting from 1987

through the date of the indictment: conspiracy to import marihuana

in violation of 21 U.S.C. § 963, and conspiracy to possess

marihuana with intent to distribute it in violation of 21 U.S.C. §

846. To establish conspiracy the government must prove beyond a

reasonable doubt (1) the existence of an agreement between two or

more persons to violate the narcotics laws, (2) that each alleged

conspirator knew of the conspiracy and intended to join it, and (3)

that each alleged conspir ator did participate in the conspiracy.

United States v. Maseratti

, 1 F.3d 330, 337 (5th Cir. 1993), cert.

denied

, 114 S.Ct. 1096 (1994); United States v. Carter

, 953 F.2d9

1449, 1454 (5 th Cir.), c ert. denied

, 112 S.Ct 2980 (1992). In

determining whether the gover nment proved a single conspiracy as

charged, we examine the following factors: 1) whether there was a

common goal, 2) the nature of the scheme, and 3) whether the

participants in the various dealings overlapped. J ackson

, 978 F.2d

at 911. "We must affirm the jury's finding that the government

proved a single conspiracy unless the evidence and all reasonable

inferences, examined in the light most favorable to the government,

would preclude reasonable jurors from finding a single conspiracy

beyond a reasonable doubt." U nited States v. DeVarona

, 872 F.2d

114, 118 (5th Cir. 1989).

Here, the government produced evidence that the sisters used

common sources of supply, the same method of importation, some of

the same drivers, and a common stash house in Houston. Moreover,

Tito, the buyer in Houston, testified that he received loads from

all three sisters: approximately forty loads from the Puigs,

thirty from the Castros, and twenty from De Los Santos. In sum,

the jury was presented with evidence from which it could reasonably

infer that the defendants were involved in a single conspiracy

between 1987 and 1991. Hence, the appellants failed to establish

a fatal variance between indictment and proof.

B. Prejudice

Even if the appellants could establish that some of the proof

at trial varied from the allegations in the indictment, they must

still prove that such a variance prejudiced their substantial

rights. In our cases addressing the prejudice to a defendant

resulting from variance between the allegations in the indictment10

and some of the proof adduced at trial, our concern is th at "the

indictment notifies a defendant adequately to permit him to prepare

his defense, and does not leave the defendant vulnerable to a later

prosecution because of failure to define the offense with

particula rity." U nited States v. Hernandez

, 962 F.2d 1152, 1159

(5th Cir. 1992) (citing United States v. Lokey

, 945 F.2d 825,

832-33 (5th Cir. 1991), and United States v. Richerson

, 833 F.2d

1147, 1155 (5th Cir. 1987)).In those cases where we have considered

an alle ged variance between a single-conspiracy indictment and

certain evidence arguably showing multiple conspiracies, "this

concern focuses on the danger of transference of guilt, i.e. , the

dange r that despite demonstrating his lack of involvement in the

conspiracy described in the indictm ent, a defendant may be

convicted because of his association with, or conspiracy for other

unrelated purposes with, codefendants who were members of the

charged conspiracy." H ernandez

, 962 F.2d at 1159 (citations

omitted).

This concern, however, may be eliminated when the trial court

gives the jury an instruction warning against the transference of

guilt. S ee United States v. Guerra-Marez

, 928 F.2d 665 (5th Cir.)

(noting that a precautionary instruction regarding transference of

guilt "provid[ed] a dequate safeguards for the rights of the

individual defend ants"), c ert. denied

, 112 S.Ct. 322 (1991); cf

.

Kotteakos v. United States

, 66 S.Ct. 1239 (1946) (overturning

convictions where indictment charged one conspiracy, proof

establ ished multiple conspiracies, and judge failed to give

cautionary instruction). Such an instruction "forcefully reminds11

the jury that it must acquit the defendant if it concludes that he

was not a member of a conspir acy charged against him, even if it

finds that he was a member of an uncharged conspiracy." H ernandez

,

962 F.2d at 1159. In the case s ub judice

, the district court gave

the jury a comprehensive multiple conspir acy instruction. The

court instructed the jury

"that proof of several separate conspiracies is not proof

of a single overall conspiracy charged in the indictment,

unless one of the several conspiracies which is proved is

a single conspiracy which the indictment charges. What

you must do is de termine whether the single conspiracy

charged in the indict ment exists between two or more

conspirators. If you find that no such conspiracy

exist ed, then you must acquit the defendant as to that

c harge or charges. However, if you are satisfied that

such a conspiracy existed, you must determine who were

the members of that conspiracy.

If you find that a particular defendant is a member

of another conspiracy, not the one charged in the

indictment, then you must acquit the defendant. In other

words, to find a defendant guilty you must find that he

was a member of the conspiracy charged in the indictment

and not some separate conspiracy."

The court's instruction safeguarded the appellants from the danger

that they could be convicted for the overarching conspiracy alleged

in the indictment solely by virtue of their participation in any

one of a number of multiple conspiracies.

We find that there was no material and prejudicial vari ance

between the indictment and the proof adduced at trial.

II. Money Laundering

Jose Puig, Abigail Puig, Araceli Castro, and Perla De Los

Santos contend that the evidence was insufficient to support their

convictions for money laundering under 18 U.S.C. §

1956(a)(1)(A)(i). In reviewing challenges to sufficiency of the

evidence, this Court views the evidence in the light most favorable4 Section 1956 provides, in relevant part:

"(a)(1) Whoever, knowing that the property involved in

a financial transaction represents the proceeds of some

form of unlawful activity, conducts or attempts to

conduct such a financial transaction which in fact

involves the proceeds of specified unlawful activity SQ

(A)(i) with the intent to promote the carrying on

of specified unlawful activity." 18 U.S.C. §

1956(a)(1).

5 Abigail Puig does not challenge her conviction on count

twelve (12) charging a November 1988 violation of 18 U.S.C. §

1956(a)(1)(B)(i).

12 to the jury verdict and affirms if a rational trier of fact could

have found that the government proved all essential elements of the

c rime beyond a reasonable doubt. S ee United States v. Ruiz

, 987

F.2d 243, 259 (5th Cir.), cert. denied

, 114 S.Ct. 163 (1993). All

credibility determinations and reasonable inferences are to be

resolved in favor of the jury's verdict. S ee id

. To secure a

conviction under section 1956(a)(1), the government must prove that

the defendant 1) conducted or attempted to conduct a financial

transaction, 2) which the defendant then knew involved the proceeds

of unlawful activity, 3) with the intent to promote or further

unlawful activity. 4 U nited States v. Ramirez

, 954 F.2d 1035, 1039

(5th Cir.), cert. denied , 112 S.Ct. 3010 (1992).

A. Jose Puig and Abigail Puig

The Puigs' conviction on count seventeen (17) under section

1956(a)(1) arises out of a marihuana run made to Florida in May of

1989. 5 Valles testified that Jose and Abigail Puig requested that

she accompany Abigail on a trip from Laredo to Florida. On May 22,

1989, Valles and Abigail Puig drove from Laredo to San Antonio,

Texas, where they picked up a load of marihuana. From San Antonio,13

Valles and Abigail Puig continued on to Okeechobee, Florida. After

arriving in Florida, they rented a hotel room and contacted Jose

Puig. The next day, two buyers, Terry and Lettie Willis, came to

the hotel room and gave Abigail Puig $47,000 in exchange for the

marihuana. After the exchange, Valles and Abigail Puig returned to

Laredo with the money. Valles testified that the last time she saw

the money it was still in the possession of Abigail Puig. There

was no evidence of what, if anything, happened to the money

thereafter.

The Puigs contend that, under these facts, they cannot be

convicted of a violation of secti on 1956(a)(1)(A)(i) because the

government failed to establish all of the requisite elements of the

offens e. Specifically, the Puigs argue that the government was

required to prove that they engaged in a financial transaction

involving the proceeds of an unlawful activity. And, although the

money Abigail Puig received in exchange for the marihuana was the

proceeds of unlawful activity, her mere subsequent transportation

of those proceeds by car does not constitute a "financial

transaction" within the meaning of the statute. We agree.

Section 1956 defines "financial transaction" as "a transaction

which in any way or degree affects interstate or foreign commerce

(i) involving the movement of funds by wire or other means or (ii)

involving one or more monetary instruments . . . ." 18 U.S.C. §

1956(c)(4)(A) (emphasis added). By definition, then, a "financial

transaction" must, at the very least, be a "transaction," i.e.

, "a

purchase, sale, loan, pledge, gift, transfer, delivery, or other

disposition" or some action invol ving a financial institution or6 The full text of section 1956(c)(3) provides:

"(c) As used in this section SQ

* * *

(3) the term 'transaction' includes a purchase, sale,

loan, pledge, gift, transfer, delivery, or other

disposition, and with respect to a financial

institution includes a deposit, withdrawal, transfer

between accounts, exchange of currency, loan, extension

of credit, purchase or sale of any stock, bond,

certificate of deposit, or other monetary instrument,

use of a safe deposit box, or any other payment,

transfer, or delivery by, through, or to a financial

institution, by whatever means effected . . . ." 18

U.S.C. § 1956(c)(3).

14 its facilities. 6 18 U.S.C. § 1956(c)(3).

Although it is clear that the transportation of money by car

is not a "purchase, sale, loan, pledge, or gift," whether such

transportation is a "transfer" or "delivery" is less clear.

However, the statute makes plain that for something (not involving

a financial institution or its facilities) to be a transaction, it

must be a "disposition." "Disposition" most commonly means "a

placing elsewhere, a giving over to the care or possession of

another." W EBSTER ' S T HIRD N EW I NTERNATIONAL D ICTIONARY , 654 (1961).

Considering the facts adduced at trial, we are persuaded that

there was no showing of any action concerning the sales proceeds

related to a financial institution, and, further, t hat the

government failed to demonstrate that Abigail Puig effected a

disposition of the proceeds of the sale. Indeed, there is no

evidence that Abigail Puig did anything with the money after she

and Valles returned to Laredo. The only evidence offered in this

regard was th e following exchange between the prosecutor and

Valles:15

"MR. MCCORMICK [the prosecutor]: After you got to

Laredo, what happened to the money if you know?

MS. VALLES: She kept the money. I don't know what

happened to it.

MR. MCCORMICK: The last time you saw it, where was it?

MS. VALLES: It was hidden in the car, under the dash of

the car.

MR. MCCORMICK: Did you take any of the money?

MS. VALLES: No, sir.

MR. MCCORMICK: Who was the last person that had control

SQ that you saw, that had control of that car when it had

the money in it?

MS. VALLES: Ab[igail Puig]."

The only permissible inference from the government's proof is that

Abigail was in poss ession of the proceeds of unlawful activity.

Nowhere is there any evidence that Abigail effected a disposition

of those proceeds; i.e., that s he "g[ave] over to the care or

possession of another" the money she had received in exchange for

the marihuana. Without such proof, her mere transportation of the

proceeds of unlawful activ ity is not a transaction within the

statute. For this reason, the government failed to establish the

facts necessary to find that Abigail Puig engaged in a financial

transaction within the meaning of section 1956. As the only basis

for Jose Puig's conviction of this ch arge was that he aided and

abetted Abigail's asserted violation, his count sevente en (17)

section 1956 convicti on is infirm for the same reason.

Accordingly, we reverse the Puigs' convictions under count

seventeen (17) for money laundering.

Our conclusion is consistent with that of the Sixth Circuit in16

Uni ted States v. Samour , 9 F.3d 531 (6th Cir. 1993). In a case

factually analogous to the instant case, the Samour court held that

"merely transporting [drug money concealed in automobile] does not

meet the definition of 'financial transaction' for purposes of the

money laundering statute." Id . at 536.

Our conclusion is also in accord with our reasoning in United

States v. Ram irez , 954 F.2d 1035 (5th Cir. 1992), in which we

concluded that the government's proof of the possession of drug

proceed s was insufficient to establish a financial transaction

under section 1956. In R amirez

, the defendant was convicted of

money laundering after DEA agents searched a house used by the drug

trafficking ring of which the defendant was a part and discovered

a shoe box containing $132,980 in cash. We concluded that although

"the jury could infer that the money found [in the house]

represented proceeds from illegal activity," the evidence did not

"allow the inference that Sanchez transferred, delivered, moved, or

otherwise disposed of the money as required by statute." Id . at

1039-40.

The government contends that "the delivery and transfer of

cash from [the Willises] to Abigail in Florida, and her subsequent

movement of these cash proceeds interstate, constitutes a financial

transaction." However, because the money did not become proceeds

of unlawful activity until the sale of the marihuana was completed

,

what the government describes as one transaction is a ctually two

separate actions: the first, the sale by the Puigs of the

marihuana to the Willises and their payment to Abigail Puig for

same, is a transaction (and an un lawful one) but is not shown to17

have been one which involved the proceeds of unlawful activity; the

second, Abigail Puig's transportation of the money from Florida to

Laredo, involves the proceeds of unlawful activity but is not a

transaction

.

The government also contends that because the f acts of the

case sub judice resemble those of United States v. Gallo

, 927 F.2d

815, 822 (5th Cir. 1991), and United States v. Hamilton , 931 F.2d

1046 (5th Cir. 1991), we must follow the results of those cases and

affirm the Puigs' conviction. In G allo

, the defendant (Gallo) was

convicted of violating section 1956 following his arrest while

transporting a box containing app roximately $300,000 cash in his

car on an interstate highway. Evidence offered by the government

suggested that the defendant had accepted delivery of the cash from

Cruz, a suspected drug trafficker, and that Cruz had been given the

money in exchange for twenty-five kilograms of cocaine. Based on

these facts, we concluded that the defendant's "transportation of

the proceeds of drug trafficking affected interstate commerce, and

that there is sufficient evidence to sustain his money laundering

conviction." G allo

, 927 F.2d at 823. The question whether the

evidence was sufficient to establish the "transaction" requirement

of the statute, however, was not addressed by the Gallo court.

In Hamilton , the defendant was convicted of money laundering

for mailing approximately $18,000 in drug a ctivity proceeds to

Perez, a drug dealer in California. On appeal we concluded,

without discussion, that "the terms of the statute prohibit mailing

the proceeds of drug sales." H amilton

, 931 F.2d at 1051.

Accordingly, we affirmed the conviction.18

Although the analysis of the transaction issue is minimal in

Hamilton and nonexistent in Gallo

, unlike the case sub judice

, both

Hamilton and Gallo clearly involve a "disposition" of the proceeds

of unlawful activi ty. In Gallo , proceeds of a drug sale were

delivered from Cruz to the defendant; in H amilton

, the defendant

attempted to deliver the proceeds of drug act ivity to Perez. We

conclude that Gallo and Hamilton are not controlling in the present

context.

B. Perla De Los Santos

Perla De Los Santos was convicted under section 1956(a)(1) for

purchasing an automobile with the proceeds of drug activity. She

appeals this conviction, cla iming that the evidence was

insuffici ent to prove that the money used to purchase the

automobile was the proceeds of unlawful activity.

The evidence showed that Perla De Los Santos participated in

the conspiracy alleged in the indictment and that, in furtherance

of the conspiracy, she purchased a 1984 Oldsmobile Cutlass Sierra

for $3,180 on August 29, 1988. On November 28, 1988, the vehicle

was seized by the DEA when the driver attempted to cross the border

with a load o f marihuana. Additionally, the government offered

evidence that for the years 1986 through 1990, Perla De Los Santos

and her husband, Emerico De Los Santos, filed only one income tax

return, that for 1990, filed April 15, 1991, claiming only $959.31

in income.

Although "proof of [a defendant's] limited income, by itself,

is insufficient to support" a conviction under section 1956, United

States v. Munoz-Romo

, 947 F.2d 170, 178 (5th Cir. 1991), vacated on19

other grounds , 113 S.Ct. 30 (1992), "[e]vidence of a differential

between legitimate income and cash outflow is sufficient for a

money-laundering conviction, even when the defendant claims income

from additional sources." U nited States v. Webster

, 960 F.2d 1301,

1308 (5th Cir.), cert. denied

, 113 S.Ct. 355 (1992) (citing United

States v. Jackson

, 935 F.2d 832, 839-42 (7th Cir. 1991)).

Moreover, "the jury is entitled to c onsider such proof in

combination with additional evi dence, such as 'evidence of [a]

defendant's drug trafficking.'" M unoz-Romo

, 947 F.2d at 178

(quoting United States v. Blackman

, 897 F.2d 309, 317 (8th Cir.

1990)). Viewing the evidence in the light most favorable to the

jury verdict, we will affirm Perla De Los Santos' conviction if a

rational trier of fact could have reasonably concluded that the car

was purchased with drug proceeds. S ee Ruiz

, supra , 987 F.2d at

259.

Here, the jury was presented with evidence fr om which they

could infer that Perla De Los Santos had minimal legitimate income

in the years (1986 through 1990) surrounding her 1988 purchase of

the vehicle for $3,180 cash. The government also presented

substantial evidence that De Los Santos was involved in a

continuing, self-funded drug organization, the operation of which

began well before and continued after August 29, 1988. Considering

the "differential between legitimate income and cash outflow" in

connection with the ample evidence that De Los Santos was engaged

as a principal in on-going, large scale drug trafficking activities

at and well before the time of the cash purchase of the automobile

for use in the consp iracy, we conclude that a rational trier of20

fact could reasonably infer that the funds used to purchased the

v ehicle were the proceeds of unlawful activity. We therefore

affirm Perla De Los Santos' conviction under section 1956.

C. Araceli Castro

Araceli Castro was convicted of money laundering for payments

made to Gloria Valles in June and August of 1988. At trial, Valles

testified that she was to be paid $3,000 to provide a driver to

Juan Castro and Araceli Castro for a drug run between Monterrey and

Laredo on June 21, 1988. After the run was completed, Valles went

to the Castro residence, where she waited with Araceli Castro while

Juan Castro left to get her payment. Shortly thereafter, Juan

Castro called the Castro residence from the Puig residence and put

Abigail Puig on the line to speak with Valles. Abigail Puig told

Valles that she did not have the entire, agreed-upon payment, and

asked Valles if she would accept half of the money at that time and

the balance later. Valles agreed to accept partial payment.

Fifteen minutes later, Juan Castro returned to the Castro residence

and, in the presence of Araceli Castro, gave Valles $1,500 cash

with the understanding that the money came from Abigail Puig.

In August of 1988, when Valles requested that Abigail Puig pay

her the b alance of the $3,000, Abigail Puig told Valles that she

and Araceli Castro had agreed to split the ex penses for the June

21, 1988, drug run. After several requests for the rest of the

money, Valles was instructed by Araceli Castro to come to the

Castro residence for payment. When Valles arrived, however,

Araceli Castro was not home, but her maid gave Valles $1,000 cash.

Later in the same month, Araceli Castro called Valles again and21

told her to come to her house to pick up a payment, and again the

Castros' maid gave Valles $1,000 cash.

In her appeal, Aracel i Castro argues nothing more specific

than that the government did not offer evidence that "she did any

particular thing with proceeds from drug trafficking." Giving her

the benefit of the doubt, we construe her argument on appeal to be

that the government failed to prove that the cash payments made to

Valles were the proceeds of unlawful activity. Thus, we must

determine whether there was enough evidence presented to the jury

to allow for the inference that the source of the payments made to

Valles was profits from the marihuana trade.

In addition to Valles' testimony regarding these payments, the

government presented evidence that for the years 1986 through 1990,

neither Abigail Puig nor the Castros filed income tax returns.

Moreover, the government presented substantial evidence of Araceli

Castro's and Abigail Puig's involvement as principals in the ongoing, large scale conspiracy well before and after the p ayments

made in June and August of 1988. Thus, as was the case with Perla

D e Los Santos, a rational trier of fact could infer from Abigail

Puig's and Araceli Castro's involvement in the conspiracy, coupled

with the differential between legitimate income and cash outflow,

that the cash payments made to Valles for her provision of a driver

for the consp iracy were the proceeds of unlawful activities.

Accordingly, we affirm Araceli Castro's conviction fo r money

laundering under section 1956.

Araceli Castro also complains that the district court erred in

failing to initially define "financial transaction" in its22

instructions to the jury regarding the money laundering count. In

the initial charge, the court gave the jury the s tatutory

definition of "transaction," stating that the term includes

"a purchase, sale, loan, pledge, gift, transfer, delivery

or other disposition and with respect to a financial

institution includes a deposit, withdrawal, transfer

between accounts, exchange of currency loans, extension

of credit, purchase of sale of stock, bonds, certificate

of deposit or other monetary inst rument or any other

payment, tr ansfer or delivery by, through or to a

financial institution . . . ."

The accuracy of this instruction is not challenged. While the jury

was deliberating, the government submitted a supplemental

instruction defining "financial transaction" using the language of

section 1 956(c)(4)(A). Araceli Castro's counsel joined in the

objection made by counsel for Jose Puig, who argued that the giving

of the supplemental instruction wou ld confuse the jury's

deliberations and undermine his chance for reversal on appeal. At

the reque st of defense counsel, the district court denied the

government's supplemental instruction.

Because Araceli Castro did not request th e instruction, and

indeed prevented the court from curing any inadequacy in the

initial charge, she failed to preserve the issue for appeal. Her

objection to the i nstruction's inclusion bars her present

contention under the doctrine of invited error. United States v.

Baytank (Ho uston), Inc. , 934 F.2d 599, 606-607 (5th Cir. 1991).

Our review of this claim, therefore, is limited to plain error at

the most. Plain error is error so obvious and substantial that

failure to notice it would affect the fairness, integrity, or

public reputation of the judicial proceedings and would result in7 The version of the Guidelines in effect from November 1,

1991, through October 31, 1992, applies to the appellants because

they were sentenced on June 22, 1992. United States v. Gross

, 979 F.2d 1048, 1050-51 (5th Cir. 1992) (citing 18 U.S.C. s

23 manifest injustice. United States v. Carreon , 11 F.3d 1225, 1240

(5th Cir. 1994). Even without the charge's inclusion of the

s pecific language of section 1956(c)(4)(A), we conclude that the

instructions, taken as a whole, were at least minimally adequate to

reflect the law. In any event, in the present context the

requested instruction's absence did not so seriously impair Araceli

Castro's ability to effectively present any defense as to amount to

plain error. Hence, no reversible error is shown.

III. Sentencing Issues

Jose Puig, Perla De Los Santos, and Araceli Castro appeal the

district court's finding of the quantity of marihuana attributable

to each of them respectively under the Sentencing Guidelines (the

Guidelines). Under section 2D1.1(a)(3) of the Guidelines, the

offense level of a defendant convicted of a drug trafficking

offense is determined by the quantity of drugs involved. This

quantity includes both drugs with which the defendant was directly

involved, and drugs that can be attributed to the defendant in a

conspiracy as part of his "relevant conduct" under section

1B1.3(a)(1) of the Guidelines. The commentary to section

1B1.3(a)(1) defines relevant conduct for conspiratorial activity as

the "conduct of others in furtherance of the execution of the

jointly-undertaken criminal activity that was reasonably

foreseeable by th e defendant." U.S.S.G. § 1B1.3(a)(1), comment.

(n.1) (Nov. 1991). 73553(a)(4)). In the 1991 Guidelines, the above-quoted language

was in the commentary to section 1B1.3(a)(1). In the 1992

amendments to the Guidelines, this language was incorporated into

the body of section 1B1.3, which now reads in relevant part: "in

the case of a jointly undertaken criminal activity [the defendant

may be held accountable for], all reasonably foreseeable acts and

omissions of others in furtherance of the jointly undertaken

criminal activity." U.S.S.G. § 1B1.3(a)(1)(B) (Nov. 1993).

24 For a particular defendant, however, "reasonable

foreseeability does not follow automatically from proof that [the

defendant] was a member of the conspiracy." U nited States v. Puma

,

937 F.2d 151, 160 (5th Cir. 1991), cert. denied

, 11 2 S.Ct. 1165

(1992). "The reasonable foreseeability required [under the

Guidelines] requires a finding separate from a finding that the

defendant was a conspirator." I d

. (citing United States v.

Warters

, 885 F.2d 1266, 1273 (5th C ir. 1989)). Thus, for a

sentencing court to attribute to a defendant a certain quantity of

drugs, the court must make two separate findings: (1) the quantity

of drugs in the entire conspiracy , and (2) the amount which each

defendant knew or should have known was involved in the conspiracy.

Id . at 159-60.

The sentencing court may make an approximation of the amount

of marihuana reasonably foreseeable to each defendant, and an

individual dealing in large quantities of controlled substances is

presumed to recognize that the drug organization with which he

deals extends beyond his "universe of involvement." U nited States

v. Thomas , 963 F.2d 63, 65 (5th Cir. 1992). When calculating the

amount foreseeable to a defendant, a court may consider the

defendant's relationship with co-conspirators and his role in the

conspiracy. U

nited States v. Devine

, 934 F.2d 1325, 1338 (5th Cir.25

199 1), c ert. denied

, 112 S.Ct. 954 (1992). In arriving at this

estim ate the court may consider any information that has

"'suffi cient indicia of reliability to support its probable

accuracy.'" Thomas , 963 F.2d at 64-65 (citations omitted).

We will uphold the factual findings made by a district court

in its determination of a defen dant's relevant conduct for

sentencing purposes unless that f igure is clearly erroneous.

United States v. Maseratti

, 1 F.3d 330, 340 (5th Cir. 1993);

United States v. Buckhalter

, 986 F.2d 875, 879 (5th Cir.), cert.

denied

, 114 S.Ct. 203 (1993). A factual finding is not clearly

erroneous if it is plausible in light of the record read as a

whole. U

nited States v. Sanders , 942 F.2d 894, 897 (5th Cir.

1991).

A. Araceli Castro

Araceli Castro was sentenced to a term of imprisonment of 292

months. Finding that she participated in an offense involving at

least 3,000 kilograms but less than 10,000 kilograms of marihuana,

the court calculated her base offense level at 34. Araceli appeals

h er sentence on two grounds. First, she contends that the trial

court erred by accepting the assertions set forth in the PSR

regarding the quantity of marihuana attributable to her. This

argument, however, is not supported by the facts.

In the PSR for Araceli Castr o, the probation department

concluded, inter alia

, that a minimum of 4,046 kilograms of

marihuana was attributable to (and reasonably foreseeable by) her.

P rior to sentencing, she filed objections to the PSR, contend ing

that the amount attributed to her was bas ed on unreliable26

testimony. The district court overruled these objections and

adopted the factual statements contained in the PSR. At the

sentenc ing hearing, in response to an objection by Castro's

counsel, the court stated explicitly that it had not merely

accepted the assertions of the probation officer; the court

explained that it based its decision to overrule the objections and

adopt the PSR on "the testimony [the court] heard from the witness

stand." Hence, Castro's contention that the district court relied

solely on the assertions of the probation depar tment is without

merit.

Next, Castro argues that the district court erred by failing

to make a specific finding regarding the amount of ma rihuana

foreseeable to her. On review of a sentence imposed pursuant to

section 1B1.3 of the Guidelines, we require the sentencing court to

make an express finding that the conspiratorial activity at issue

was reasonably foreseeable. P uma

, 937 F.2d at 160; Warters

, 885

F.2d at 1271-73. Moreover, Rule 32 of the Federal Rules of

Criminal Procedure "requires the court either to make specific

f indings as to all contested facts contained in the PSR that the

court finds relevant in sentencing, or determine that those facts

will not be considered in sentencing." U nited States v. Hooten

,

942 F.2d 878, 881 (5th Cir. 1991); F ED .R.C RIM .P. 32(c)(3)(D). Rule

32 does not, however, "require a catechismic regurgitation of each

fact determined and each fact rejected," United States v. Sherbak

,

950 F.2d 1095, 1099 (5th Cir. 1992); "instead, we have allowed the

district court to make implicit findings by adopting the PSR. This

adoption will operate to satisfy the mandates of Rule 32 when the27

findings in the PSR are so clear that the reviewing court is not

left to 'second-guess' the basis for the sentencing decision."

Carreon , 11 F.3d at 1230-31.

In Araceli Castro's case, the district court expressly adopted

the facts set forth in the PSR. Additionally, after Castro's

counsel questioned the factual basis for the PSR's calculation of

the amount of mar ihuana attributable to her, the court explained

that its decision to adopt the PSR's determination was based on the

court's assessment of the testimony presented by the government.

In so doing, the court resolved the sole factual issue from the PSR

which was contested by Castro, satisfying the requirements of Rule

32.

B. Perla De Los Santos

Perla De Los Santos was sentenced to a total of 240 months'

imp risonment. Finding that she participated in an offense

involving at least 3,000 kilograms but less than 10,000 kilograms

of marihuana, the district court set her base offense level at 34,

with a 4-point upward adjustment for being an organizer/leader in

a criminal activity involving 5 or more participants. She appeals

both the determination of her base offense level and the adjustment

for her role in the offense.

The PSR for Perla D e Los Santos concluded that a minimum of

4,046 kilograms of marihuana was attributable to her. De Los

Santos objected to this determination, contending tha t the trial

testimony supported a finding tha t only 400-700 kilograms of

marihuana should be attributed to her. Other than simply making

this assertion, however, she presented nothing to rebut the PSR's28

findings.

Although a district court must resolve disputed issues of fact

if it intends to use those facts as a basis for sentencing, see

F ED .R.C RIM .P. 32(c)(3)(D), the court can adopt facts contained in a

PSR without inquiry, if t hose facts had an adequate evidentiary

basis and the defendant does not present rebuttal evidence. U nited

States v. Rodriguez

, 897 F.2d 1324, 1328 (5th Cir.), cert. denied

,

111 S.Ct. 158 (1990). Furthermore, the defendant has the burden of

showing that information that the district court relied on in

sentencing is materially untrue. Id

.

Here, the district court adopted the PSR, which made the

explicit finding De Los Santos could reasonably foresee the entire

amount of marihuana trafficked by the conspiracy. The court

underscored this finding, stating that all five of the defendants

could have reasonably foreseen the actions of the members of the

conspiracy done in furth erance of it. This conclusion is

adequately supported by the record and is reasonable given the

nature of the conspiracy, which was a family organization, run by

Perla De Los Santos and her sisters, each of whom had an intimate

understanding of the operation.

Perla De Los Santos next contends that the district court

erred in its conclusion that she was an organizer or leader of the

conspiracy. As best we can understand, her contention that she is

less culpable is based on her acquittal on the charge of

participating in a continuing criminal enterprise.

In determining whether a particular defendant is an organizer

or leader, a court should consider such factors as29

"the exercise of decision making authority, the nature of

participation in the commission of the offense, the

recruitment of accomplices, the claimed right to a larger

share of the fruits of the crime, the de gree of

participation in planning or organizing the offense, the

nature and scope of the illegal activity, and the degree

of control and authority exercised over others."

U.S.S.G. § 3B1.1, comment. (n.3) (Nov. 1991).

Additionally, the commentary to section 3B1.1 notes that there can

"be more than one person who qualifies as a leader or organizer of

a criminal association or conspiracy." Id . We review a district

court's finding that a defendant was an organizer or leader under

the clearly erroneous standard. U nited States v. Watson

, 988 F.2d

544, 550 (5th Cir. 1993), cert. denied

, 114 S.Ct. 698 (1994).

Moreover, the district court need only determine factual findings

at sentencing by a preponderance of the evidence. U nited States v.

Angulo , 927 F.2d 202, 204 (5th Cir. 1991).

Here, there is ample evidentiary support for the finding that

Perla De Los Santos was an organizer of the conspiracy. Along with

her two sisters, Perla De Los Santos was a founding member of this

conspiracy. After Alejandro Acosta was arrested, Perla De Los

Santos and her sisters took over his position as overseer of

distribution. Additionally, there is evidence in the record that

Perla De Los Santos recruited participants, including Valles, into

the conspiracy; that she directed the actions of drivers and other

participants; and that she accepted some of the payments for

mar ihuana transactions. Thus, the district court's finding that

Perla De Los Santos was an organizer or leader is adequately

supported. S ee United States v. Peters

, 978 F.2d 166, 170 (5th

Cir. 1992); United States v. Liu , 960 F.2d 449, 456 (5th Cir.),30

cert. denied , 113 S.Ct. 418 (1992).

C. Jose Puig

Jose Puig was sentenced to a total of 285 months'

imprisonment. The district court set his base offense level at 34,

the level specified in section 2D1.1(a)(3) for participation in an

offense involving at least 3,000 kilograms but less than 10,000

kilograms of marihuana. Jose Puig appeals his sentence, contending

that the district court erred by attributing to him the entire

amount of marihuana trafficked by the conspiracy. He argues that

because he was incarcerated for a substantial portion of the life

of the conspiracy, he should be held accountable for less than the

4,086 kilograms attributed to him by the district court. Jose Puig

also argues that the district court failed to make specific

findings as to whether the conduct of his co-conspirators was

reasonably foreseeable to him.

When the conspiracy was formed, in December of 1987, Jose Puig

was incarcerated; when the c onspiracy ended, in August of 1991,

Puig was also incarcerated. He was released from custody on

October 14, 1988, arrested again on June 15, 1990, and remained

incarcerated throughout the remainder of the conspiracy. After his

release in October of 1988, Jose and Abigail Puig married and Jose

became an integral part of the operation of the conspiracy. Jose

and Abigail Puig extended the distribution area of the conspiracy,

importing marihuana from Mexico int o Georgia and Florida. Jose

Puig's direct and overt involvement in the conspiracy lasted until

June 15, 1990, when he was arrested in Houston while making a

delivery of 55 pounds of marihuana. At sentencing, the government31

conceded that this delivery was part of the instant conspiracy.

Jose Puig's PSR concluded that the entire amount of marihuana

involved in the conspiracy SQ i.e.

, a minimum of 4,086 kilograms SQ was

attributable to him. Jose Puig filed objections to the PSR, which

included, inter alia

, an objection to attributing to him any amount

of marihuana involved in the conspiracy before he was released from

prison. At the sentencing hearing, Jose Puig's counsel again

asserted the objection that Puig could not reasonably foresee

marihuana trafficked before he joined the conspiracy. In response,

the district court stated that "the greater portion of this

conspiracy and conspiratorial con duct occurred after [Jose Puig]

was r eleased [from jail on October 14, 1988]." Later, the court

stated:

"based on the evidence as I've heard it, the majority of

t he marijuana, if that S Q if that is the way I need to

address it. I'm not sure that there was significant

testimony of loads of marijuana before 1988 that would

concern me in sentencing him fair and equitably because

the majority of the people who testified in this case as

to spec ific loads that they hauled occurred in 1988 up

through 1990 or there abouts . . . ."

The plain meaning of "majority" and "greater portion" is "a number

greater than one half of a total." W E BSTER ' S T HIRD N EW I NTERNATIONA L

D ICTIONARY

, 1363 (1961) . As the sentencing court found that the

instant conspiracy involved approximately 4,000 kilograms of

marihuana, it is impossible for this Court to determine whether the

sentencing court found anything more than that the quantity of

marihuana foreseeable to Jose Puig was "a number greater than 2,000

kilograms." Because the Guideline range at which Jose Puig was

sentenced is triggered by a relevant conduct determination of 3,00032

kilograms, we must remand to allow the district court to clarify

its finding of the amount of marihuana attributable to Jose Puig.

Clearly, any amount of marihuana which was trafficked before

October of 1988 canno t be attributed to Jose Puig because

"'relevant conduct' as defined in section 1B1.3(a)(1)(B) is

prospective only, and consequently cannot include conduct occurring

before a defendant joins a conspiracy." C arreon

, 11 F.3d at 1235-

36. However, Jose Puig also contends that the marihuana

trafficking activities of his co-conspirators which occurred after

his June 15, 1990, arrest should not be attributed to him either.

If we interpret Jose Puig's contention to be that by virtue of

his 1990 arrest and incarceration he terminated his involvement in

the co nspiracy, his argument fails. Ordinarily, a defendant is

presumed to c ontinue involvement in a conspiracy unless that

defendant makes a "'substantial' affirmative showing of withdrawal,

abandonment, or defeat of the conspiratorial purpose." U nited

States v. Branch

, 850 F.2d 1080, 1082 (5th Cir. 1988) (citation

omitted), cert. denied

, 109 S.Ct. 816 (1989). Indeed, "[a] member

of a conspiracy continues to be responsible for acts committed by

c oconspirators even after the former's arrest unless he has

withdrawn from the conspiracy." United States v. Killian

, 639 F.2d

206, 209 (5th Cir.) (citations omitted), cert . denied , 101 S.Ct.

3014 (1981). To withdraw from a conspiracy, a defendant bears the

burden of demonstrating that he has committed "[a]ffirmative acts

inconsistent with the object of the conspiracy [that are]

communicated in a manner reasonably calculated to reach

conspirators." U nited States v. U.S. Gypsum Co.

, 98 S.Ct. 2864,33

2887 (1978); Killian

, 639 F.2d at 209. Because a defendant's

incarceration is not an affirmative act on the part of a defendant,

i t cannot, b

y itself

, constitute withdrawal or abandonment. See

Branch , 850 F.2d at 1083; Killian , 639 F.2d at 209.

Although Jose Puig has failed to demonstrate that he withdrew

from the instant conspiracy, his incarceration may still have had

some effect on the foreseeability of the acts of his coconspirators occurring after his June 15, 1990, arrest. The

reasona ble foreseeability required of section 2D1.4 requires a

finding separate from a finding that the defendant was part of the

conspiracy. U

nited S tates v Puma , 937 F.2d 151, 160 (5th Cir.

1991); see also U.S.S.G. § 1B1.3, comment. (n. 1)(Nov. 1993) ("the

focus is on the specific acts and omissions for which the defendant

is to be held accountable in determining the applicable guideline

range, rather than on whether the defendant is cr iminally liable

for an offense as a principal, ac complice, or conspirator").

Hence, upon remand, the district court should consider specifically

whether (and, if so, to what extent) Jose Puig's incarceration

limited the foreseeability to him of an y of the marihuana

transactions that took place after his June 15, 1990, arrest. The

court should consider this foreseeability in light of the nature of

the conspiracy, the nature of Jos e Puig's involvement in the

organization prior to his arrest, and the relationship or nexus

between the conspiracy's transactions occurring before his arrest

of which he is charged wi th knowledge and those which took place

after his arrest. The temporal proximity of the arrest to the

termination of the conspiracy may also be important; the longer the8 All three also contend that the government failed to timely

file a notice to enhance their sentences for prior convictions.

However, because we find that the district court did not

statutorily enhance the sentences, we need not reach this issue.

34 time between incarceration and termination, the more attenuated the

connection between the defendant and the conspiracy.

Thus the district court on remand will need to expressly find

the relevant amount of marihuana involved in the conspiracy after

October 1988 and the portion thereof reasonably foreseeable to Jose

Puig taking into account his June 1990 arrest.

IV. Enhancement For Prior Conviction

Jose Puig, Abigail Puig, and Juan Castro contend that the

district court erroneously enhanced their sentences for violation

of 21 U.S.C. § 841 (possession of more than 1 ,000 kilograms of

marihuana with the intent to distribute) and 21 U.S.C. § 960

(importation of more than 1,000 kilograms of marihuana). The

appellants claim that the court erred in concluding that they were

subject to a mandatory minimum sentence of 20 years for committing

a violation of the substantive provisions of sections 841 and 960,

involving 1,000 kilograms or more of marihuana, after one or more

prior felony drug convictions had become final. Specifically, the

appellants contend that the court was in error because the prior

convictions relied upon for enhancement by the district court were

not final at the time the appellants committed the substantive

offenses. 8

With regard to Juan Castro and Abigail Puig, their argument

fails because the district court did not rely on the statutory

enhancement provisions in fixing their sentences; rather, the court9 Abigail Puig also contends that enhancement of her sentence

based on the state conviction violates the Fifth Amendment

proscription against double jeopardy. Because we find that the

district court did not enhance her sentence, we need not address

this argument. We reject her implied contention (assuming,

arguendo only, that it has been adequately raised and preserved)

that double jeopardy prevents conduct for which she was convicted

under state law from being part of her continuing criminal

enterprise offense under 21 U.S.C. § 848(c). See, e.g., United

States v. Harrison , 918 F.2d 469, 474 (5th Cir. 1990).

35 sentenced the appellants according to the range established by the

Guidelines. Juan Castro's offense level was set at 38, with a

criminal history of I, resulting in a Guideline range of 235-293

months. The district court sentenced Castro to a 285-month term of

incarceration. Abigail Puig's offense level was 38, with a

criminal history of II, resulting in a Guideline range of 262-327

months. The district court sentenced her to a 292-month term of

incarceration. The sentences imposed on both Juan Castro and

Abigail Puig were well within the Guideline range, and were

authorized by the "unenhanced" penalty provisions of sections 841

and 960, which provide for a term of imprisonment of anywhere from

10 years to life. S ee 21 U.S.C. § 841(b)(1)(A); 21 U .S.C. §

960(b)(1)(G). Hence, the district court did not use the statutory

enhancement provisions to establish the sentences imposed on Juan

Castro and Abigail Puig. 9

The district court also sentenced Jose Puig to a term of

imprisonment that was within the Guideline range. Jose Puig's

offense level was 37, with a criminal history of IV, resulting in

a Guideline range of 292-365 months. As with Juan Castro and

Abigail Puig, the district court sentenced Jose Puig to a term of

imprisonment within the Guideline range: 292 months. However,10 The only convictions the court may rely upon for enhancement

are those enumerated in the government's "Information of Prior

Conviction," filed pursuant to 21 U.S.C. § 851. Section 851

provides in relevant part:

"No person who stands convicted of an offense . . .

shall be sentenced to increased punishment by reason of

one or more prior convictions, unless before trial . .

. the United States attorney files an information with

the court (and serves a copy of such information on the

person or counsel for the person) stating in writing

the previous convictions to be relied upon." 21 U.S.C.

§ 851(a)(1).

36 because Jose Puig's offense level may be reduced on remand, we

discuss briefly his argument regarding enhancement. We note that,

upon remand, t he district court could conceivably calculate for

Jose Puig a base offense level as low as 32, that applicable to

conduct involving at least 1,000 kilograms but less than 3,000

kilograms of marihuana. Adding 3 offense levels for the

uncontested findi ng that Puig was a supervisor or manager within

the conspiracy would produce a total offense level as low as 35,

resulting in a Guideline range of 235-293 months. Given the fivemonth disparity between the bottom of this possible Guideline range

and the twenty-year mandatory min imum sentence for violating the

substantive provisions of sections 841 and 960 after a prior felony

drug conviction, we provide the f ollowing discussion for the

benefit of the sentencing court.

The only conviction available to enhance Jose Puig's sentence

is his July 16, 1990, conviction for possession of marihuana. 10 As

s et forth above, on June 15, 1990, Jose Puig was arrested when

Texas police discovered fifty-five pounds of marihuana concealed in

the car he was driving, and on July 16 he pleaded guilty in state11 The enhancement provision of section 841 provides that, when

a person is convicted of knowingly or intentionally possessing

with the intent to distribute 1,000 kilograms or more of

marihuana,

"such person shall be sentenced to a term of

imprisonment which may not be less than 10 years or

more than life . . . . If any person commits such a

violation after a prior conviction for a felony drug

offense has become final, such person shall be

sentenced to a term of imprisonment which may not be

less than 20 years and not more than life imprisonment

. . . ." 21 U.S.C. § 841(b)(1)(A).

12 The enhancement provision of section 960 is similar to that

of section 841. Section 960(b)(1) provides that when a person is

convicted of knowingly or intentionally importing 1,000 kilograms

or more of marihuana

"the person committing such violation shall be

sentenced to a term of imprisonment of not less than 10

years and not more than life . . . . If any person

37 court to the charge of possession of more than five but less than

fifty pounds of marihuana, a second d egree felony, and was

sentenced to fifteen years' imprisonment. Jose Puig was

incarcerated at all times from June 15, 1990, until his conviction

in the case sub judice

.

For a sentencing court to enhance a defendant's sentence under

section 841, the defendant must " commit [] such a violation"

(involving the possession of more than 1,000 kilograms of marihuana

with the intent to distribute it) " after a prior conviction for a

felony drug offense has become final." 21 U.S.C. § 841(b)(1)(A)

(emphasis added). 11 Similarly, section 960 requires enhancement for

one w ho "commits such a violation" (involving the importation of

more than 1,000 kilograms of marihuana) "after one or more prior

[felony drug] convictions . . . have become final." 21 U.S.C. §

960(b)(1)(G). 12 A conviction becomes final when it is no longercommits such a violation after one or more prior

convictions for an offense punishable under this

subsection, or for a felony under any other provision

of this subchapter or subchapter I of this chapter or

other law of a State, the United States, or a foreign

country relating to narcotic drugs, marihuana, or

depressant or stimulant substances, have become final,

such person shall be sentenced to a term of

imprisonment of not less than 20 years and not more

than life imprisonment . . . ." 21 U.S.C. 960(b)(1).

13 At the sentencing hearing, the government did not tender any

evidence of Puig's post-incarceration conduct, although it

asserted that:

"We have evidence we're prepared to go forward with to

38 subject to examination on direct appeal. S ee United States v.

Morales , 854 F.2d 65 (5th Cir. 1988).

Jose Puig contends that because he was incarcerated from the

time of his June 15, 1990, arrest onw ard, and was thus unable to

commit an offense after his July 16, 1990, Texas conviction became

final, this state conviction may not be used to enhance his

sentence. The government argues that because Puig was part of a

conspiracy which continued after his July 16, 1990, Texas

conviction became final, and because he failed to affirmatively

w ithdraw from the conspiracy, Jose Puig continued to violate the

provisions of sections 841 and 960 while incarcerated pursuant to

his July 16, 1990, conviction. While we need not specifically

decide this issue, we note that the purpose of the recidivist

provisions of these statutes is the deterrence of future criminal

conduct and that it seems doubtful any deterrent purpose would be

served by enhancing Jose Puig's sentence without evidence that he

engaged in some conduct in furtherance of the conspiracy while

incarcerated after his state conviction became final. 13 C f

. Unitedthe effect that after [he] . . . pled guilty to [the]

state offense and was transferred to the Texas

Department of Corrections that Jose Antonio PuigInfante continued actively in the conspiracy and did a

number of acts which indicated that he had not

withdrawn from the conspiracy even after his arrest."

Although on remand the government will have an opportunity to

substantiate these unsworn assertions of its counsel, without

some substantiation they should not be considered by the district

court in making its factual findings. See United States v.

Alfaro , 919 F.2d 962, 966 (5th Cir. 1990).

39 States v. Rosenthal

, 793 F.2d 1214, 1244 (11th Cir. 1986) (holding

that defendant's incarceration did not constitute withdrawal when

e vidence showed that he was actively engaged in drug trafficking

operation while in prison), cert. denied , 107 S.Ct. 1377 (1987).

V. Employment of a Minor to Assist in Drug Trafficking

Juan Castro appeals his conviction under 21 U.S.C. §

861(a)(1), which makes it an offense for any person who is "at

least eighteen years of age to knowingly and intentio nally . . .

employ

. . . a person und er eighteen years of age to violate any

provisio n of" the Controlled Substances Act. Juan Castro was

convicted for hiring Irma Gonzalez to transport and import into the

United States sixty-six pounds of marihuana. Juan Castro contends

that the government failed to prove (1) that he was over eighteen

years of age, and (2) that Irma Gonzalez was under eighteen years

of age.

Viewing the evidence in the light most favo rable to the

verdict, Cast ro's contention is without merit. Gonzalez was

arrested while transporting a load of marihuana for Castro in

N ovember of 1988. The government introduced, without objection,

the testimony of Border Patrol Agent Mario Rebolledo and the40

testimony of Officer Alberto Juarez of the Webb County Sh eriff's

Department that Gonzalez was seventeen years old at the time of her

arrest. Moreover, Valles testified that she thought Gonzalez was

six teen years old at the time she was driving for Juan Castro.

With rega rd to Juan Castro's age, the government introduced into

evidence an Internal Revenue Service form which listed Juan

Castro's birthdat e as September 14, 1955. Given this undisputed

evidence, a rational jury could have easily concluded that Irma was

under, and Juan Castro over, eighteen years of age.

VI. Importation of Marihuana

Juan Castro also challenges his convi ction for aiding and

abett ing the importation of 99.8 kilograms of marihuana under 21

U.S.C. § 841(a)(1) and 18 U.S.C. § 2. To prove an importation

offense, "the government need only prove that the defendant

knowingly played a role in transporting contraband from a foreign

country into the United States." U nited States v. Gibson

, 963 F.2d

708, 710 (5th Cir. 1992) (mul tiple citations omitted). To

establish that Juan Castro aided and abetted the importation, the

government must show that he "'willfully associated himself in some

way with the criminal venture and willfully participated in it as

he would in something he wished to bring about.'" U nited States v.

Stanley

, 765 F.2d 1224, 1242 (5th Cir. 1985) (quoting United States

v. Phillips , 664 F.2d 971, 1010 (5th Cir. 1981)).

Juan Castro's conviction arises out of the December 10, 1988,

seizure of a marihuana load imported into the United States by

Bruce Coggins, a driver for the organization a nd a confidential

informant for the DEA. Coggins testified that while meeting with41

Juan Castro at a restaurant in Cielo De Flores, Mexico, Juan Castro

i nstructed him that the load was not ready but that he should

return at a later date to pick up the marihuana. A few days later,

on December 9, 1988, Coggins returned to the restaurant in Cielo De

Flores. When he arrived, he was met by several persons who took

him to anoth er location and loaded ninety-nine kilograms of

marihuana in the trunk of his car. He drove the load of marihuana

across the border and parked it at an apartment complex in Laredo,

where it was seized by law enforcement authorities. After he

dropped off the car, Coggins called Alfredo Castro, Juan Castro's

nephew, who then accompanied Coggins back to the apartment complex

to pick up the car. When Alfredo learned that the car was missing,

he cal led Juan Castro and Araceli Castro and told them what had

happened.

From this evidence, Juan Ca stro's substantial connection to

the load imported by Coggins could properly be inferred. A

rational jury could easily have found that Juan Castro "willfully

associated himself in some wa y with the [Coggins' importation of

m arihuana] and willfully participated in it as he would in

something he wished to bring about." Hence, the evidence was

sufficient to support Juan Castro's conviction for aiding and

abetting the importation of 99.8 kilograms of marihuana.

VII. Explanatory Parentheticals in Transcripts

Perla De Los Santos, Juan Castro, Jose Puig, and Abigail Puig

complain that the district court committed reversible err or by

allowing into evidence transcripts with parentheticals containing

the trans criber's interpretation of certain "code words." The42

government contends that the transcripts provided to the jury were

redacted to eliminate the exp lanatory parentheticals pursuant to

the instructions of the district court at trial.

At trial, the government offered into evidence recordings of

the original telephone co nversations between Valles and various

members of the conspiracy. At the pretrial conference, counsel for

Abigail Puig and Araceli Castro o bjected to admission of the

transcripts on the grounds that "the agent's analysis is contained

in the transcript" and that the transcriber had , throughout the

documents, defined several code words by placing the word

"marihuana" within parentheses. The district court responded that

the transcripts were not evidence and were only to be used to

assist the jury in its analysis of the tape recordings. The court

also noted that the defense had the right to "proffer what you

believe to be a different meaning for the particular [']code

word['] if you think it has a different meaning."

During the portion of the testimony of Valles when the

government offered the tape recordings into evidence, counsel for

Araceli Castro repeated her pretrial objection and argued that the

interpreter of the tapes should be su bject to cross-examination.

Overruling her objection, the court explained that the defense

could question Valles about the translation in the transcript.

After further discussion, defense counsel made clear that the only

objection to the transcripts was the inclusion of the explanatory

term "marihuana." Sustaining this objection, the court ordered the

government to eliminate from the transcripts to be provided to the

jury the parentheticals containing the word "marihuana." The14 Moreover, even assuming arguendo that not all of the

objectionable parentheticals were removed, given the overall

state of the evidence and the fact that Valles was available for

cross-examination on the subject, any error arising out of any

failure to remove all the parentheticals was harmless in this

case.

43 record reflects that the gov ernment i n fact removed the

parentheticals from the copies of the transcripts submitted to the

jury, and nothing presented by the appellants in this appeal

indicates otherwise. Hence, the appellants have no factual basis

for their appeal in this respect. 14

VIII. Neutral Judge

Finally, Araceli Castro complains th at the district judge

exceeded his role as a neutral magistrate during the direct

examination of Bruce Coggins. After Coggins was asked to identify

a photograph of the bundles of marihuana that were in the trunk of

his car, the transcript reflects the following exchange:

"Q: Does that show them after they have been unloaded,

sir?

A: Yes, sir.

Q: And does that accurately represent what they looked

like after they were unloaded?

THE COURT: Yes, sir, it does.

MR. HARRIS (prosecutor): If your Honor pleases, at this

time I would offer into evidence Government's Exhibit 5

and Government's Exhibit 211-A.

THE COURT: Any objection?

MR. MARTINEZ (counsel for Abigail Puig): No objection."

Both the wording and the context of the response to the

government's question su ggests that Coggins, and not the court,

answered the question, and that the attribution to the court was a44

transcript error. This interpretation is reinforced by the fact

that no objection was made by defense counsel. This probability

notwithstanding, because no objection was made, we review the

matter for plain error.

Plain error occurs when the error is so obvious and

substantial that failure to notice and correct it would affect the

fairness, integrity, or public reputation of judicial proceedings

and would result in manifest injustice. C arreon

, 11 F.3d at 1240.

Here, no such error has been demonstrated. Even if the statement

at issue was not the result of a transcript error, the question

a sked by the government was asked for the purpose of layin g the

evide ntiary predicate for the admission of the photograph of the

marihuana and was actually repetitive of the prior question. Thus,

any effect on the defendant's case was negligible. Additionally,

any prejudicial effect of the statement was mitigated by the

court's instructions, whi ch stated explicitly that the judge's

statements were not evidence. U nited States v. Gonzalez

, 700 F.2d

196, 198 (5th Cir. 1983).

Conclusion

We affirm the convictions and sentences of Araceli Castro,

Perla De Los Santos, and Juan Castro. As to Abigail Puig, we

reverse her conviction as to count seventeen (17), and affirm her

conviction on all other counts; because of our reversal as to count

17, her sentences on all counts are vacated and the cause as to her

is remanded for resentencing on all the remaining counts of

conviction. As to Jose Puig, we reverse his conviction as to count

seventeen (17), and affirm his conviction on all other counts; his45

sentences on all counts are vacated and the cause as to him is

remanded for resentencing consistent herewith on th e remaining

counts of conviction.

As to Araceli Castro, Perla De Los Santos, and Juan Castro:

AFFIRMED.

As to Abigail Puig: AFFIRMED in p art; REVERSED in part;

REMANDED for resentencing.

As to Jose Puig: AFFIRMED in part; REVERSED in part; REMANDED

for resentencing.