UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

______________

No. 91-2840

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UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

EMMA GONZALEZ-RODRIGUEZ,

Defendant-Appellant.

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Appeal from the United States District Court

for the Southern District of Texas

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( July 2, 1992 )

Before GOLDBERG, JONES, and DeMOSS, Circuit Judges.

GOLDBERG, Circuit Judge:

In this challenge to the sufficiency of the evidence, we must

unravel the argot of the drug trade to determine whether the

defendant joined a conspiracy to possess marijuana with intent to

distribute, used communication facilities to facilitate narcotic

transactions, and laundered proceeds derived from the drug trade.

I.

Defendant-appellant Emma Gonzalez-Rodriguez ("Emma") was
2

 

1 In the district court, Emma vigorously contested whether

the word used was "pot" or "pop."

 

2 We must view the evidence in the light most favorable to

the government because the jury rendered a verdict of guilty. 

United States v. Menesses, ___ F.2d ___, ___, slip op. 4888, 4894

(5th Cir. May 22, 1992); United States v. Sanchez, ___ F.2d ___,

___, slip op. 4768, 4772-73 (5th Cir. May 19, 1992).

romantically involved with one Mike Rena, Sr., owner of an auto

repair shop which, without dispute, served as a front for his drug

business. Rena had several people working under him, among them:

Joe Rena, who was arrested by police while transporting a large

quantity of marijuana in a rented, white Lincoln Continental;

Norma, who was in the white Lincoln with Joe; Jaime Gonzalez, who,

at some unspecified time, picked up a two-pound bag from Emma,

which reeked of marijuana, and delivered it to Rena; and Lydia,

another underling who was summoned to assist on several occasions.

The bulk of the evidence tying Emma to Rena's drug trade

consisted of audio-recorded phone conversations between Emma and

Rena, intercepted by the government pursuant to a court-authorized

wiretap. For the most part, the conversants did not speak in

explicit terms when discussing drug transaction, though on more

than one occasion they used the term "pot," a common slang term for

marijuana.1 This evidence, construed in the light most favorable

to the government,2 established that Emma discussed several

meetings and transactions relating to Rena's drug activity,

assisted Rena in making arrangements for the transportation of

certain drug quantities (including Joe Rena's thwarted effort in
3

the white Lincoln), and agreed to join Rena in picking up cash

derived from Rena's drug deals. To be sure, law enforcement agents

observed Rena and Emma board a commercial airplane at the Houston

airport. When they returned two days later, the agents approached

them and asked them whether they were carrying any cash. Emma and

Rena responded that they were, and each of them tendered

approximately $8,000 for the officers to count. The officers

returned the money to them and allowed them to continue on their

way without further interruption. In a conversation with another

conspirator about the incident at the Houston airport, Rena

expressed his relief that he had not picked up all of the cash,

confirming the illicit nature of the proceeds. 

A jury convicted Emma on eight counts: one count of conspiracy

to possess marijuana with intent to distribute, 21 U.S.C. § 846,

six telephone counts, 21 U.S.C. § 843(b), and one count of money

laundering, 18 U.S.C. § 1956. The district court sentenced her to

63 months on each of the eight counts, all to run concurrently. 

Emma contends that the evidence was insufficient to support

the convictions. She maintains that the government merely proved:

(1) that Emma was the girlfriend of Mike Rena, Sr., a drug dealer;

(2) that she and Rena were stopped in the Houston airport carrying

approximately $8,000 each; and (3) that at some unspecified time,

Jaime Gonzalez picked up a two pound bag from her, which smelled of

marijuana, and delivered it to Rena. According to Emma, those
4

facts cannot support the convictions on any of the eight counts.

She vigorously contests the significance of the wiretap evidence,

arguing that none of it established, beyond a reasonable doubt,

that she joined Rena's conspiracy, used a communication facility to

facilitate drug transactions, and knowingly laundered drug

proceeds. Although she concedes that her voice was properly

identified on six of the tapes, she disputes the identification of

her voice on the other tapes. She also contests the government's

suggestion that she was speaking in drug code.

II.

Our standard for reviewing the sufficiency of the evidence to

support a conviction is "whether a reasonable jury could find that

the evidence establishes the guilt of the defendant beyond a

reasonable doubt." United States v. Menesses, ___ F.2d ___, ___,

slip op. 4888, 4894 (5th Cir. May 22, 1992); United States v.

Sanchez, ___ F.2d ___, ___, slip op. 4768, 4772-73 (5th Cir. May

19, 1992). We view the evidence in the light most favorable to the

verdict, note 2, supra, and reverse the conviction only if the

evidence, viewed in that light, "gives equal or nearly equal

circumstantial support to a theory of guilt and a theory of

innocence of the crime charged." Menesses, slip op. at 4894

(quoting form other cases); Sanchez, slip op. at 4773 (same). We

need not rule out all hypotheses of innocence, however, for the

jury is entitled "to choose among reasonable constructions of the

evidence." Menesses, slip op. at 4894 (quoting United States v.
5

Bell, 678 F.2d 547, 549 (5th Cir. 1982), aff'd, 462 U.S. 356

(1983)). With this standard of review in mind, we turn to the

eight counts on which Emma stands convicted.

A. The Conspiracy -- 21 U.S.C. § 846

The law of drug conspiracy in this circuit is well-settled,

and aptly summarized in Judge Reynaldo G. Garza's recent opinion in

Sanchez:

To establish guilt of a drug conspiracy, it must be

proven that an agreement with intent to distribute

existed, that the defendant had knowledge of the

agreement, and that the defendant voluntarily

participated in the conspiracy. An agreement may be

inferred from concert of action, participation form a

"collocation of circumstances," and knowledge from

surrounding circumstances. Mere presence at the scene

and close association with those involved are

insufficient factors alone; nevertheless, they are

relevant factors for the jury.

Slip op. at 4773 (emphasis in original) (citations omitted).

Emma does not dispute that Rena was involved in the drug

trade, and that he conspired with others (Joe Rena, Jaime Gonzalez,

Norma, Lydia, and Tio) to possess marijuana for the purpose of

distributing it. Nor does Emma seriously contend that she was

unaware of Rena's drug activities. She was intimately familiar,

for example, with Joe Rena's failed attempt to transport a sizable

quantity of marijuana in the white Lincoln. Furthermore, Rena did

not hesitate to discuss his drug dealings with Emma. The existence

of the conspiratorial agreement and Emma's knowledge of it are

readily discernible from the record.
6

 

3 Emma is correct that there is no direct evidence of her

knowledge that the money was derived from drug activity. Emma

observes that Rena's statement to another coconspirator that he

was relieved that he did not pick up all the cash establishes

Rena's knowledge, not hers. Nevertheless, in light of the other

evidence establishing her knowledge of the drug activity, a

reasonable jury could have concluded, based on circumstantial

evidence, that Emma was not merely present and innocently holding

onto drug proceeds, but that her participation in the trip was a

"voluntary act[] in furtherance of the conspiracy." Sanchez,

slip op. at 4779.

Evidence of Emma's participation in the conspiracy, though not

overwhelming, nevertheless suffices to sustain the jury verdict, as

well. In several of the conversations with Rena, Emma agreed to

call other coconspirators to make arrangements for upcoming

transactions. She also undertook to make travel arrangements with

regard to the cash pick-up. See Sanchez, slip op. at 4778

(evidence sufficient to sustain conspiracy conviction where

"government introduced two intercepted conversations of [the

defendant] making plane reservations for her husband, Juan, the

principal conspirator, and [another] named co-conspirator"). With

respect to the Joe Rena's arrest while driving the white Lincoln,

she told Rena that she had tried to persuade Joe to rent a less

ostentatious vehicle so not to draw attention to himself while

cruising on the highway. Her possession of one half of the $16,000

cash which she and Rena picked up also establishes her

participation.3 Contrary to Emma's intimation, the taped

conversations were "more than two individuals lamenting or

discussing the occurrences of the day before," for "[w]ere this the

only evidence the jury could consider regarding [Emma'] status as

a co-conspirator, we would be loathe to affirm her conviction."
7

See Sanchez, slip op. at 4778 (internal quotations omitted). But

the evidence established more; it proved that Emma knowingly

participated in Rena's drug conspiracy.

B. The Telephone Counts -- 21 U.S.C. § 843(b)

In order to prove a violation of 21 U.S.C. § 843(b),

the Government must establish that the defendant

knowingly an intentionally used a communications

facility, e.g., a telephone, to facilitate the commission

of a narcotics offense. In order to establish the

facilitation element, the Government must show that the

telephone call comes within the common meaning of

facilitate -- `to make easier' or less difficult, or to

assist or aid. It is sufficient if a defendant's use of

a telephone to facilitate the possession or distribution

of controlled substances facilitates either his own or

another person's possession or distribution. 

United States v. Phillips, 664 F.2d 971, 1032 (5th Cir. Unit B

1981), cert. denied, 457 U.S. 1136 (1982). Use of a telephone to

direct coconspirators to take actions in furtherance of the

conspiracy violates § 843(b). See United States v. Townsend, 924

F.2d 1385, 1414 (husband directing wife to "separate everything"

before he returned in order to prepare for drug sales). Even

"giving assurances to [a coconspirator] about the security of a

large quantity of concealed [narcotics] that was at that time being

protected by underlings in the enterprise, facilitate[s] the

unlawful possession or attempted possession of [narcotics]."

Phillips, 664 F.2d at 1032. However, using a phone to ascertain

the status or progress of a drug transaction, without more, will

not suffice. See United States v. Rivera, 775 F.2d 1559, 1562

(11th Cir. 1985) (calls that "were simply to find out whether any

sales had been made, and if so where was the money he was supposed
8

 

4 We note that the district court allowed the jury to use

transcripts prepared by the government merely as an aid. Because

the transcripts identified Emma as the speaker in several

disputed conversations, and because there was some dispute

concerning the accuracy of the transcripts, the court wisely

instructed the jury on numerous occasions that the transcripts 

were not evidence but only there to guide the jury as they

listened to the tapes. See generally Stone, 960 F.2d at 437 n.8.

to get" did not suffice under § 843(b) because they did not

facilitate the possession of narcotics), cert. denied, 106 S.Ct.

1275 (1986); see also United States v. Jones, 839 F.2d 1041, 1047

(5th Cir.) (distinguishing Rivera), cert. denied, 108 S.Ct. 1999

(1988).

The thrust of Emma's challenge to these six counts is that the

government failed to identify her voice on several of the audio

tapes and that, even assuming that she was the conversant, the

government failed to prove that she facilitated a narcotics

transaction. She does not contend that the government failed to

establish the predicate for the admission of the tapes, that the

tapes were so unintelligible that the district court abused its

discretion by admitting them into evidence, or that the district

court erred by permitting the jury to use transcripts as an aid.

See United States v. Stone, 960 F.2d 426 (5th Cir. 1992). Rather,

she maintains that the government's evidence establishing her

identity as a speaker on some of the tapes was less than

persuasive,4 and that the government's evidence that she was

speaking in code was too imaginative for any jury to accept.
9

 

5 It bears repeating that Emma does not contend that the

government failed to follow the ritualistic methodology for

laying the foundation for the admission of the tapes. See Stone,

960 F.2d at 436 (citing United States v. Biggins, 551 F.2d 64, 66

(5th Cir. 1977)).

 

6 More often than not, Rena would do the talking and Emma

would respond "Oh," "Yeah," or "Uh-huh."

As to Emma's identification argument, the government directs

our attention to the testimony of the intercepting agents who

identified Emma's voice at trial. They testified that after

listening to the voices over a period of time, they came to

recognize the voices of the conspirators, including Emma. (3 R. 46-

48, 76-77) With respect to each tape, the government asked the

intercepting agent whether he could identify the voices, and the

agent responded that he could.5 Whether the female voice on any

particular tape belonged to Emma was therefore a question for the

jury to decide. Cf. Stone, 960 F.2d at 438 ("[I]t was the province

of the jury to decide whether the government's transcript was

accurate, and the obligation of the defendant to raise specific

challenges to the transcript before the jury.").

As to the substance of the conversations, we are satisfied

that a reasonable jury -- even one lacking in cryptological

expertise -- could have concluded that Emma was discussing matters

pertaining to the drug conspiracy. True, much of what Emma said

was monosyllabic and lacked syntactical precision.6 But much of it

also evidenced her efforts to facilitate the aims of the

conspiracy. And one law enforcement agent testified that Emma and
10

Rena, like many entrepreneurs of the drug trade, spoke in a dialect

designed to conceal the substance of their discussions.

Particularly because the evidence established that Rena was in fact

involved in the drug trade, the jury was free to accept (or reject)

the testimony of the law enforcement agent and conclude that Emma

and Rena's conversations were veiled in code -- that when Emma and

Rena were discussing "parts," "working on cars," and "fixing cars,"

they were actually referring to narcotics activity. See United

States v. Guerra-Marez, 928 F.2d 665, 675 (5th Cir.) ("jury could

have reasonably concluded that certain phrases used by [the coconspirators] were code words for controlled substances"), cert.

denied, 112 S.Ct. 322 (1991).

Turning to the individual counts, we conclude that the

evidence is sufficient to support five of the six telephone counts.

On February 19, 1990 (count 18), Emma and Rena discussed having

Emma contact Lydia about transporting some "pot." Emma also spoke

with Joe that evening about organizing "the troops." Both matters

aimed to facilitate the conspiracy.

On March 3, 1990 (count 21), Emma and Rena discussed Joe

Rena's delay in transporting the marijuana in the white Lincoln.

Although we have observed that a discussion about the status of

drug activity, without more, does not facilitate a conspiracy, see

Rivera, 775 F.2d at 1562, here, there was more. Emma and Rena

decided that Rena would have to reprimand Joe for renting a Lincoln
11

rather than some other, less extravagant vehicle. Emma told Rena

to "get after [Joe] you're the only one that can, he don't listen

to me." They were plainly discussing the need to correct the bad

working habits of one of their coconspirators.

On March 6, 1990 (count 23), Emma told Rena that she spoke

with someone whose name she could not disclose over the telephone,

and he instructed her to wire some money to him. Rena said that

would be okay and suggested that she contact Lydia, another

coconspirator, to assist. On March 7, 1990 (count 26), Rena and

Emma used a telephone to discuss and make flight arrangements to

pick up the $16,000 cash. They discussed the arrival of "parts" a

code word for the contraband. On March 16, 1990 (count 30), Emma

and Rena discussed the money she was holding and Emma wanted to

know what she should do with it. These conversation demonstrate

that Emma and Rena were making arrangements relative to drug

transactions, thus facilitating the conspiracy.

With respect to the conversations on March 15, 1990 (count

27), however, we find no evidence satisfying the facilitation

requirement of § 843(b). See Phillips, 664 F.2d at 1032 (use of

telephone must facilitate the underlying offense). Rena merely

informed Emma that "Tio" had been caught and that "they" had seized

"forty-five." This conveyance of information did not work to

facilitate the conspiracy; it was nothing more than a status

report, insufficient in and of itself to sustain the telephone
12

 

7 The statute provides:

Whoever, knowing that the property involved in a

financial transaction represents the proceeds of some

form of unlawful activity, conducts such a financial

transaction which in fact involves the proceeds of

specified unlawful activity--

knowing that the transaction is designed in whole

or in part-- 

to conceal or disguise the nature, the

location, the source, the ownership, or the

control of the proceeds of specified unlawful

activity; ...

shall be sentenced to a fine ... or imprisonment....

18 U.S.C. § 1956(a)(1)(B)(i).

count. See Rivera, 779 F.2d at 1563.

C. Money Laundering -- 18 U.S.C. § 1956(a)(1)(B)(i)

Emma was convicted of money laundering in connection with her

possession of the $8,000 cash in the Houston airport. The

provision of the money laundering statute under which she was

charged and convicted, 18 U.S.C. § 1956(a)(1)(B)(i),7 "required

that the government prove that [Emma] knowingly conducted a

financial transaction which involved the proceeds of marijuana

distribution and that [she] did so with the knowledge that the

transaction was designed to disguise the nature, source or

ownership of those proceeds." United States v. Martin, 933 F.2d

609, 610 (8th Cir. 1991). 

Emma contends first that she did not know that the cash she

was carrying were the "proceeds of marijuana distribution." We
13

 

8 The subsection continues:

... 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,

or any other payment, transfer, or delivery by, through

or to a financial institution, by whatever means

effected.

18 U.S.C. § 1956(b)(3).

reject this contention for much the same reason we rejected her

challenge to the sufficiency of the evidence as to the conspiracy

and telephone counts. We are satisfied that a jury could

reasonably have concluded that Emma was aware of the illicit origin

of the funds she was carrying. See supra note 3. We nevertheless

reverse the money laundering conviction for lack of evidence

establishing that Emma was engaged in a "financial transaction ...

designed to disguise the nature, source or ownership of those

proceeds." Martin, 933 F.2d at 610. 

The money laundering statute defines a transaction to include

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

disposition"8 of proceeds derived from specified illegal activity,

including drug transactions. 18 U.S.C. § 1956(b)(3). The

government cites our circuit's decision in United States v. Gallo,

927 F.2d 815, 822 (5th Cir. 1991), to support its theory that

evidence of Emma's possession of $8,000 cash in the Houston airport

was sufficient to prove a money laundering transaction. In Gallo,

the defendant (Gallo) was arrested while transporting a box
14

 

9 The Gallo opinion does not indicate whether Gallo was

convicted under subsection (A)(i) or (B)(i). In the case at bar,

Emma was convicted under subsection (B)(i).

containing approximately $300,000 cash in his car on an interstate

highway. He had just accepted delivery of the box from Cruz, a

suspected drug trafficker, and fingerprints on the box matched

those of Balcazar, another known drug dealer. Gallo made two false

exculpatory statements to law enforcement officers about the car

and the box of cash. Moreover, Cruz and Balcazar had made a

similar exchange on the same day, Cruz tendering $300,000 cash to

Balcazar in exchange for twenty-five kilograms of cocaine. 

On appeal from Gallo's money laundering conviction,9 we

addressed two issues: whether the evidence established his

knowledge that the funds in his possession were proceeds of

unlawful activity, and whether the transfer of currency in his car

"had any discernible impact on interstate commerce." We held that

[b]ased on the concert of action among [the

coconspirators], and Gallo's false statements, we

conclude that the jury could reasonably infer that Gallo

knew that he was transporting the proceeds of unlawful

activity.

Id. We held further:

reserving judgment on a case in which the connection

between the money and the drugs or illegal activity is

not so clear as it is here, we conclude that Gallo's

transportation of the proceeds of drug trafficking

affected interstate commerce....

Id. at 823. Significantly, we did not squarely address what

evidence would be necessary to satisfy the "transaction"
15

 

10 Apparently, that issue was not raised on appeal.

 

11 We note that the Seventh Circuit has held that "the

placing of money and/or withdrawing of money from a safe deposit

box where no record is made and no interest is paid on the amount

of money" did not amount to a financial transaction under 18

U.S.C. § 1956(c)(3). United States v. Bell, 936 F.2d 337, 341

(7th Cir. 1991).

requirement of the statute.10 

In United States v. Hamilton, 931 F.2d 1046, 1051-52 (5th Cir.

1991), we defined the term "transaction" to include the mailing of

drug proceeds.11 In that case, the defendant mailed approximately

$18,000 cash from Mississippi to California. The cash was proceeds

from drug activity. A jury convicted the defendant under

subsection (A)(i) of 18 U.S.C. § 1956(a)(1), which prohibits a

financial transaction intended to "promote the carrying on of a

specified unlawful activity." 18 U.S.C. § 1956(a)(1)(A)(i). On

appeal we held that "the terms of the [money laundering] statute

prohibit mailing the proceeds of drug sales, and absent clearly

expressed legislative intent to the contrary, that language must be

regarded as conclusive unless exceptional circumstances dictate

otherwise." Hamilton, 931 F.2d at 1051. Because the defendant was

charged and convicted under subsection (A)(i), not subsection

(B)(i) (under which Emma stands convicted), we did not explore the

requirement, unique to subsection (B)(i), that the transaction be

"designed ... to conceal or disguise the nature, the location, the

source, the ownership, or the control of the proceeds of specified

unlawful activity." 18 U.S.C. § 1956(a)(1)(B)(i).
16

The Tenth Circuit did in United States v. Sanders, 929 F.2d

1466, 1471 (10th Cir.), cert. denied, 112 S.Ct. 143 (1991),

reversing a money laundering conviction because the government

failed to prove the concealment element. In that case, the

defendants (husband and wife) used drug proceeds to purchase

automobiles, one of which was titled in their daughter's name.

They readily identified themselves to the salesperson and

conspicuously used the automobiles, "making the association of

these vehicles with the [defendants] obvious to law enforcement."

Id. at 1472. In reversing the convictions, the court

reject[ed] the government's argument that the money

laundering statute should be interpreted broadly to

encompass all transactions, however ordinary on their

face, which involve the proceeds of unlawful activity.

To so interpret the statute would, in the court's view,

turn the money laundering statute into a "money spending

statute." This interpretation would be contrary to

Congress' expressly stated intent that the transactions

being criminalized in the statute are those transactions

"designed to conceal or disguise the nature, the

location, the source, the ownership, or the control of

the proceeds of specified unlawful activity." 18 U.S.C.

§ 1956(a)(1)(B)(i). Thus, by the express terms of the

statute, a design to conceal or disguise the source or

nature of the proceeds is a necessary element for a money

laundering conviction. In other words, the purpose of

the money laundering statute is to reach commercial

transactions intended (at least in part) to disguise the

relationship of the item purchased with the person

providing the proceeds and the proceeds used to make the

purchase were obtained from illegal activities.

Id.; see also United States v. Edgmon, 952 F.2d 1206, 1211 (10th

Cir. 1991) ("These involved transactions, unlike the simple

automobile purchases in Sanders, certainly support a finding under

the money laundering statute of intent to conceal the origin and

nature of the proceeds of unlawful activity"), cert. denied, 1992
17

WL 127032 (1992). 

The Seventh Circuit, endorsing the Sanders court reasoning,

explained that:

[t]he conversion of cash into goods and services as a way

of concealing or disguising the wellspring of the cash is

a central concern of the money laundering statute. ...

To convict under 18 U.S.C. § 1956(a)(1)(B)(i) the

government must prove not just that the defendant spent

the ill-gotten gains, but that the expenditures were

designed to hide the provenance of the funds involved.

United States v. Jackson, 935 F.2d 832, 841 (7th Cir. 1991), cited

with approval in United States v. Webster, 960 F.2d 1301, 1308 (5th

Cir. 1992); see also United States v. Beddow, 957 F.2d 1330, 1334

(6th Cir. 1992) ("the government had the burden of proving beyond

a reasonable doubt that Beddow knowingly conducted a financial

transaction with the proceeds of drug distribution and that he did

so with the intent to conceal the nature or the source of the

proceeds....").

Like Sanders, we find no evidence in the record establishing

that Emma's possession (or transportation) of the $8,000 in drug

proceeds was "designed to conceal or disguise the nature, the

location, the source, the ownership, or the control of the proceeds

of specified unlawful activity." 18 U.S.C. § 1956(a)(1)(B)(i). In

the first place, the government did not introduce any evidence of

Emma's flight itinerary. All the jury knew was that Emma was

flying to some unknown destination to pick up something related to

narcotics activity, and that she was in possession of $8,000 cash
18

when she disembarked form the airplane in the Houston airport.

Moreover, Emma (and Rena) voluntarily cooperated with the law

enforcement officers when asked about the cash. She readily

disclosed that she was in possession of $8,000 and, indeed, turned

it over to the agents so that they could count it, hardly an effort

to conceal or disguise. Finally, there is no evidence that she

made "false exculpatory statements" to the agents. Contrast Gallo,

927 F.2d at 822 (defendant made two false exculpatory statements to

law enforcement officers). In the absence of evidence that Emma

endeavored to conceal or disguise, her conviction under 18 U.S.C.

§ 1956(a)(1)(B)(i) must be reversed.

III.

Having deciphered the patois of the narcotics trade, we

REVERSE the convictions on count 27 [telephone count] and count 102

[money laundering]. The convictions as to all other counts are

AFFIRMED.