F I LED

United States Court of Appeals

Tenth Circuit

February 21, 2007

Elisabeth A. Shumaker

Clerk of Court

PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

JORGE TORRES-LARANEGA,

Defendant-Appellant.

No. 05-2302

Appeal from the United States District Court

for the District of New Mexico

(D.C. No. CR-03-2112 MV)

Scott M. Davidson, Albuquerque, New Mexico, for Defendant-Appellant.

Kenneth J. Gonzales, Assistant United States Attorney (David C. Iglesias, United

States Attorney, with him on the brief), Albuquerque, New Mexico, for PlaintiffAppellee.

Before BRISCOE, McCONNELL, and GORSUCH, Circuit Judges.

GORSUCH, Circuit Judge.

Jorge Torres-Laranega was the leader of a rather brazen drug-trafficking

ring that transported multi-ton quantities of marijuana in tractor trailers from the

southwestern United States to the Chicago area. Despite four government

seizures of Mr. Torres-Laranega’s tractor trailers in a four month period (the
- 2 -

result of a federal informant working within his operation), Mr. Torres-Laranega

was actively planning yet another drug shipment when the government arrested

him and his confederates. Following a jury trial, Mr. Torres-Laranega was

convicted for engaging in a continuing criminal enterprise (“CCE”) under the

“drug kingpin” statute, as well as for possession with intent to distribute 1,000

kilograms or more of marijuana. See 21 U.S.C. §§ 848(a), 841(a)(1) and

841(b)(1)(A). 

Mr. Torres-Laranega raises only two issues on appeal, both seeking reversal

of his CCE conviction. First, he asserts that the district court’s jury instructions

improperly lowered the government’s burden of proof on the “substantial income”

element of the CCE charge. Second, he contends insufficient evidence exists to

suggest that he personally obtained substantial income or resources from the

enterprise. For reasons discussed below, we disagree and thus affirm the district

court’s judgment. 

I

This case began on April 7, 2003, when law enforcement detained Yolanda

Alarcon, a commercial truck driver, on her way from El Paso, Texas, to Las

Cruces, New Mexico, suspecting that her truck had recently been involved in

transporting a load of marijuana. Trial Tr. 373-75. In the course of that

encounter, Ms. Alarcon admitted that she was involved in a significant drugtrafficking operation and she eventually offered to serve as a paid government
 Beyond the facts recited here, our decisions on the appeals of two of Mr. 1

Torres-Laranega’s confederates contain additional details about the enterprise. 

See United States v. Mendivil, No. 05-2271, 2006 WL 3598301 (10th Cir.

Dec. 12, 2006) (unpub.); United States v. Diaz, No. 05-2348, 2007 WL 10752

(10th Cir. Jan. 3, 2007) (unpub.).

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informant. An eight-month investigation leading to the eventual arrest of 14

individuals followed.1 

The Enterprise

From 2001 until June 2002, Ms. Alarcon worked legitimately as a licensed

truck driver. During June 2002, she first met Mr. Torres-Laranega, the

enterprise’s ringleader and a wealthy man who owned two significant homes, a

plethora of luxury vehicles, and yet who, authorities later learned, filed no tax

returns for 2001, 2002 or 2003. Trial Tr. 656, 1655-58. Aware of his line of

work, Ms. Alarcon asked a friend to introduce her to Mr. Torres-Laranega in the

hope of being offered a job transporting narcotics because she thought it would be

“good, easy money.” Id. at 661. Mr. Torres-Laranega proved receptive and

stated that he would pay Ms. Alarcon $13,000 - $20,000 for every successful

tractor trailer load of narcotics delivered from the southwestern United States to

the Chicago area. Id. at 662. That very day, Ms. Alarcon agreed to drive a

tractor trailer for Mr. Torres-Laranega from El Paso to Las Cruces in return for

$800. Id. at 663-67. 
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A few months later, in August or September of 2002, Mr. Torres-Laranega

asked Ms. Alarcon to transport a tractor trailer that he owned from El Paso to a

ranch house in Las Cruces (the “ranch house”). Id. at 670-72. At the ranch

house, Mr. Torres-Laranega and his associates loaded the truck with drugs. Id. at

676-77. At Mr. Torres-Laranega’s instruction, Ms. Alarcon then moved the truck

from the ranch house to a truck stop also in Las Cruces. Id. at 677. A

confederate told Ms. Alarcon that the loaded truck was thereafter driven from Las

Cruces to Chicago, and there is no indication that this tractor trailer, and the load

of drugs it held, failed to reach its intended destination. Id. at 680. 

Around March of 2003, Ms. Alarcon was asked to assist Mr. TorresLaranega’s operation with another drug run, this time starting at a stash house on

Parker Road in Las Cruces (the “Parker stash house”). The Parker stash house,

for which Mr. Torres-Laranega paid the rent, served as a staging point for

marijuana originating in Juarez, Mexico. Id. at 680-90. Cars from Juarez would

deliver drugs to the Parker stash house; then, inside the house, conspirators would

package the marijuana into bundles and load them into tractor trailers headed for

Chicago. Id. at 687-88. In mid-March of 2003, Ms. Alarcon personally observed

a trailer she had previously driven being loaded with bundles at the Parker stash

house. Id. at 689. Within a couple of days, Ms. Alarcon’s son Memo, an active

participant in the enterprise, told her that he and Mr. Torres-Laranega took this

very truck to Chicago. Id. at 695-96. Memo remained in Chicago with Mr.
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Torres-Laranega for a week. Id. Again, there is no indication that any of the

drugs transported were seized by authorities. 

Ms. Alarcon was hardly the only driver employed by Mr. Torres-Laranega.

Juan Antonio Barraza explained to Ms. Alarcon in July 2003 that he and his

brother had recently driven a load of marijuana from El Paso to Chicago, and that

Mr. Torres-Laranega paid Mr. Barraza and his brother $7,000 for the trip. Id. at

765-77; 772-73. Evidence obtained by law enforcement corroborates this trip and

suggests it occurred in early July of 2003. See id. at 2283-87; Ex. 187 (fictitious

bill of lading used that trip); Ex. 741 at 11-20 (conversations with Mr. TorresLaranega and others discussing a traffic citation received by Mr. Barraza during

the trip); Ex. 952 (traffic citation for Mr. Barraza dated July 3, 2003).

In early April 2003, Mr. Torres-Laranega asked Ms. Alarcon to move yet

another truck from El Paso to the ranch house in Las Cruces. Trial Tr. 698-701. 

Mr. Torres-Laranega paid Ms. Alarcon $1000 for this drive. Id. at 701. The

route, however, required Ms. Alarcon to pass through a Department of

Transportation (“DOT”) inspection station just outside of Las Cruces. Id. at 703. 

During a routine stop, the DOT officer noticed that the bill of lading Ms. Alarcon

presented suggested she was carrying 18 washers when he observed only 16

washer-sized boxes in the trailer. Id. at 707. His suspicions were confirmed

when he accidentally fell on top of a box and discovered it was empty – there was

no washer within. Id. While there were no narcotics in the trailer at that time, a
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law enforcement narcotics detection dog alerted officers that there had recently

been narcotics in the trailer. Id. at 353-54, 710. The DOT officer then brought

Ms. Alarcon in for questioning and detained her for several hours. Id. at 710. 

Ms. Alarcon eventually told the officers about Mr. Torres-Laranega’s

operation and her involvement in the transportation of narcotics because she

“wasn’t going to lose [her] six-year-old son, for – that.” Id. at 710-11. 

Subsequently, Ms. Alarcon agreed to serve as a paid confidential informant. Id.

at 711, 2375-76. Unbeknownst to Mr. Torres-Laranega, from that point on, all of

Ms. Alarcon’s dealings with him were under the watch of the Federal Bureau of

Investigation (“FBI”). Id. at 2361-62.

The Seizures and Arrest

On May 18, 2003, Ms. Alarcon informed Agent Andrew Armijo of the FBI

that one of Mr. Torres-Laranega’s henchmen, Edgar Lopez-Hernandez, asked her

to move a partially “loaded” purple tractor trailer for himself and Mr. TorresLaranega. Id. at 156, 722-28. Specifically, Ms. Alarcon was to move the truck

around Las Cruces (from a truck stop to an auto repair shop and then back to the

truck stop) in order to complete the truck’s load of marijuana before its shipment

North. Id. at 724-28. At the repair shop, agents observed the rear cargo doors of

the trailer open and individuals working around the vehicle. Id. at 2363, 2372. 

Shortly thereafter, another participant in the enterprise, Martin Mendivil,

proceeded to take the tractor trailer northbound toward Chicago. At a permanent
- 7 -

U.S. Border Patrol checkpoint on Interstate 25, approximately 20 miles north of

Las Cruces, the trailer was searched and 1,417 kilograms of marijuana were

seized. Id. at 167, 239. Mr. Torres-Laranega subsequently paid for an attorney to

represent Mr. Mendivil in connection with charges arising from the seizure. Ex.

296 at 3-4. 

In early July of 2003, Ms. Alarcon informed Agent Armijo that Mr. TorresLaranega asked her to drive another tractor trailer from Chicago to Laredo, Texas,

so that it could be packed with marijuana for a return trip to Chicago. Trial Tr.

753. Mr. Torres-Laranega told Ms. Alarcon that he “give[s] all the people around

20,” Ex. 166f, and would pay her $15,000 to $20,000 to drive the load depending

upon whether it was a “good load.” Id. at 755; Ex. 166f at 2. Mr. TorresLaranega subsequently gave Ms. Alarcon $700 to fly from El Paso to Chicago on

July 10, 2003, Trial Tr. 741-42, and another $100 to treat herself and two

confederates to dinner in Chicago, id. at 769-70. Prior to beginning the drive to

Texas, Mr. Torres-Laranega gave Ms. Alarcon an additional $600 to cover

incidental travel expenses. Id. at 777-78. 

After Ms. Alarcon completed her portion of the drive, Jose Barraza manned

the truck for the return trip from Texas to Chicago. When the truck stopped for

gas in Indiana, a police officer with the Chicago Police Department approached

Mr. Barraza and requested, and received, permission to search the trailer. Id. at

1397-99. During the search, the officer uncovered and seized 681 kilograms of
- 8 -

marijuana. Id. at 1407-08. On Mr. Torres-Laranega’s bidding and at his expense,

Mr. Barraza flew from El Paso to Chicago in an attempt to retrieve the truck for

Mr. Torres-Laranega. See Ex. 243. In a recorded conversation between Mr.

Barraza and Mr. Torres-Laranega, Mr. Barraza makes reference to the fact that

Mr. Torres-Laranega “bought the [seized] trailer.” Ex. 285 at 2-3. 

Undeterred by the government’s two seizures (so far), Mr. Torres-Laranega

instructed Ms. Alarcon to register yet another tractor trailer, this time a grey

Freightliner which Mr. Torres-Laranega owned, under Ms. Alarcon’s name. Trial

Tr. 835-36. Ms. Alarcon paid the registration fees with $500 that Mr. TorresLaranega gave her for that purpose. Id. at 826-27. On July 17, 2003, Ms.

Alarcon accompanied Mr. Torres-Laranega to his home in El Paso where he

retrieved at least $8,000 in cash to pay for a refrigerated trailer to attach to the

grey Freightliner. Id. at 837-39. She observed that the home was gated with a

long driveway and an indoor swimming pool. Id. at 838. 

Subsequently, Ms. Alarcon and Mr. Torres-Laranega met Joe Diaz, a

member of the operation who regularly supplied tractor trailers to the enterprise,

in order to repair the refrigerated trailer purchased for the grey Freightliner. Id.

at 866-68. On August 6, 2003, a New Mexico Police Officer photographed Mr.

Diaz and Mr. Torres-Laranega attempting to jump start the grey Freightliner. Id.

at 1990-92, 1995-97. On that same day, two phone calls were intercepted

between various members of the enterprise discussing delivery and unloading at a
- 9 -

house in El Paso. Ex. 381; 388. In one call, Mr. Torres-Laranega discussed the

value and weight of the marijuana with Raul Espinoza. See Ex. 734 (Mr. TorresLaranega inquired, “How much is it going to be?” Mr. Espinoza replied, “it’s

eight hundred, it’s alright? Is it not?” to which Mr. Torres-Laranega responded

“Of course it is damn it! That’s a trip! Huh?”). 

The following day, August 7, 2003, in a conversation again between Mr.

Torres-Laranega and Mr. Espinoza, Mr. Torres-Laranega asked Mr. Espinoza to

tell a man that “we leave today, that we are unable to leave yesterday because . . .

well, for small issues.” Ex. 445 at 2. Later that day, 523 kilograms of marijuana

were seized by law enforcement in a house in El Paso. Trial Tr. 1912-19; Ex.

951. One of the individuals detained while fleeing the residence was Mr.

Espinoza. Trial Tr. 1769-70.

A month later, on September 9, 2003, Mr. Torres-Laranega instructed Ms.

Alarcon to drive the grey Freightliner from Las Cruces to El Paso to pick up

drugs for another journey to Chicago. Id. at 878-81. The following day, Ms.

Alarcon did just that. Id. at 883; see also id. at 2011. Upon arriving at a Love’s

Truck Stop in El Paso, Ms. Alarcon was met by two of her colleagues in the

trafficking ring. Id. at 883-84. Following Mr. Torres-Laranega’s direction that

Mr. Diaz would coordinate travel arrangements for Ms. Alarcon and her

companions in and around El Paso, the three of them left the truck stop together

in Mr. Diaz’s personal truck. Ex. 510. Subsequently, FBI agents observed
- 10 -

another member of the conspiracy drive the grey Freightliner to a warehouse in El

Paso and back it into a loading dock. Trial Tr. 1970-71. 

 That same day, September 10, 2003, in a recorded conversation, Mr. Diaz

asked another member of the operation, Cesar Miramontes, about the location of

the grey Freightliner and its security. Mr. Diaz also inquired in code whether the

drugs had been loaded – to which Mr. Miramontes responded, “UPS has

stopped . . . by there to deliver and all that.” Ex. 507 at 3. Two days later, the

grey Freightliner was searched by the authorities in El Paso at the location given

by Mr. Miramontes in his call with Mr. Diaz. See Trial Tr. 2017. During the

search, Mr. Torres-Laranega telephoned Ms. Alarcon and told her about the

investigation. Ex. 582. He instructed her not to answer the phone when the

police called, but that, if questioned, she should fabricate a story. Ex. 582; 583. 

He suggested she tell the police that she gave her truck keys to a “Jose Lopez” in

order to detail the truck. Mr. Torres-Laranega subsequently created business

cards for an auto detailer named “Jose Lopez” and a fictitious receipt for such

work, and gave both to Ms. Alarcon. Trial Tr. 900-04. 

Mr. Torres-Laranega was also in constant telephone communication during

the police search with Gabriel Fernandez, yet another member of the ring, who

relayed a minute-by-minute accounting of the investigation of the truck. Ex. 580;

582. During a recorded conversation, Mr. Torres-Laranega promised Mr.

Fernandez and another person a bonus of $20,000 each “if nothing happens and
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everything turns out all right.” Ex. 581. As it happened, however, a total of

2,340 kilograms of marijuana were found and seized by authorities. Ex. 951.

Remarkably, even after this fourth seizure, Mr. Torres-Laranega was

apparently not aware of the government’s investigation and instructed Ms.

Alarcon to register and insure another tractor trailer in her name to transport

narcotics. Trial Tr. at 920-21. He also provided Ms. Alarcon with $1,000 to hire

an attorney in an effort to retrieve the grey Freightliner seized by federal

authorities so that it could be used in future drug runs. Id. at 907, 2469. Ms.

Alarcon delivered the documents relating to the seized Freightliner to Mr. TorresLaranega’s gated home in Juarez, Mexico. Id. at 909-10. The gated home was

known as “La Fuente” because it had a “big water fountain” in front. Id. at 910-

11.

Authorities finally arrested Mr. Torres-Laranega and five of his coconspirators on November 19, 2003. Simultaneously, the FBI conducted a search

of Mr. Torres-Laranega’s residence in El Paso and discovered several documents

relating to the operation, including: (1) documents regarding Stallion

Transportation (a fictitious trucking company established by Mr. Diaz) which

leased two of the tractor trailers seized by authorities; (2) a traffic citation for

another confederate; and (3) a lease agreement for one of the seized tractor

trailers. Id. at 2234-45. Mr. Torres-Laranega was subsequently charged with

CCE, conspiracy to possess with intent to distribute a controlled substance, and
 The district court subsequently vacated the jury’s verdict on the 2

conspiracy count on the ground that it is a lesser included offense of a CCE

conviction. 

 The district court also sentenced Mr. Torres-Laranega to 120 months for 3

his possession with intent to distribute conviction, but ordered this sentence to

run concurrently with his CCE sentence. Finally, the court ordered Mr. TorresLaranega to a term of 10 years of unsupervised release following completion of

his sentence, and to pay a $200 assessment.

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possession with intent to distribute 1,000 kilograms or more of marijuana. On

February 23, 2005, after a month long trial, the jury returned a verdict of guilty

on all counts. Mr. Torres-Laranega was sentenced to 240 months in prison, the 2 

statutory minimum for a CCE conviction. See 21 U.S.C. § 848(a). Our

jurisdiction arises under 28 U.S.C. § 1291.3 

II

On appeal, Mr. Torres-Laranega asserts that the district court improperly

instructed the jury with respect to the “substantial income or resources” element

of the CCE offense. Under 21 U.S.C. § 848(c), a person is subject to conviction

for engaging in a continuing criminal enterprise if: 

(1) he violates any provision of [the federal drug laws] the

punishment for which is a felony, and 

(2) such violation is a part of a continuing series of violations of [the

federal drug laws] – 

(A) which are undertaken by such person in concert with

five or more other persons with respect to whom such

person occupies a position of organizer, a supervisory

position, or any other position of management, and
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(B) from which such person obtains substantial income

or resources.

Because Mr. Torres-Laranega failed to object to the district court’s CCE jury

instruction and did not proffer a competing instruction of his own, we will disturb

the district court’s judgment only if its instructions were infected by plain error;

that is, Mr. Torres-Laranega must show that the district court not only committed

error, but that such error was plainly evident; that it affected his substantial

rights; and that it seriously affected the fairness, integrity, or public reputation of

the judicial proceedings. United States v. Burbage, 365 F.3d 1174, 1180 (10th

Cir. 2004).

Mr. Torres-Laranega contends he meets this high standard for two reasons

meriting mention here. First, he argues that the jury was allowed to find the

substantial income element without proof that Mr. Torres-Laranega personally –

as opposed to the drug running operation generally – obtained the requisite

substantial income or resources. Appellant’s Br. 29. As it happens, however, the

district court specifically and expressly instructed that the question before the

jury was whether the defendant – that is, Mr. Torres-Laranega himself – obtained

substantial income or resources. See Jury Instruction No. 18 (the jury must find

beyond a reasonable doubt that “the defendant obtained substantial income or

resources from the series of violations . . . [t]he government may meet the

substantial income requirement . . . by direct evidence of the revenues realized
- 14 -

and resources accumulated by the defendant” (emphases added)). No more is

required. 

Second, and more substantially, Mr. Torres-Laranega charges that the

district court improperly fused the substantial income or resources element of

Section 848(c)(2)(B) with the separate managerial element of Section

848(c)(2)(A), effectively subsuming the former into the latter. Appellant’s Br.

26. With respect to the managerial element of Section (c)(2)(A), the district court

instructed that the jury had to find that

the defendant undertook [the series of violations of the federal drug

laws] in concert with five or more other persons with respect to whom

the defendant occupied a position of organizer, supervisor, or

manager . . . The term “organizer, supervisor, or manager” means that

the defendant was more than a fellow worker and that the defendant

either organized or directed the activities of five or more other

persons, exercising some form of managerial authority over them. 

The defendant need not be the only organizer or supervisor, and the

“five or more persons” may include persons who are indirectly

subordinate to the defendant through an intermediary . . . there is no

requirement for you to find the defendant was the dominant organizer,

supervisor, or manager of the enterprise.

Jury Instruction No. 18. With respect to the substantial income or resources

element of Section (c)(2)(B), the court instructed that

[t]he term “substantial income or resources” means income in money

or property which is significant in size or amount as distinguished

from some relatively insignificant, insubstantial, or trivial amount. 

The government need not prove a definite amount of net profit – it is

sufficient to show substantial gross receipts, gross income, or gross

expenditures for resources. The government may meet the substantial

income requirement either by direct evidence of the revenues realized

and resources accumulated by the defendant, or by such
- 15 -

circumstantial evidence as the defendant’s position in the criminal

organization and the volume of drugs handled by the organization.

Jury Instruction No. 18 (emphasis added); see also Trial Tr. 2727-29. We

understand Mr. Torres-Laranega as essentially contesting the italicized portion of

the latter instruction, suggesting that by allowing the jury to find substantial

income or resources from his position in the criminal organization in conjunction

with the volume of drugs handled by the organization, the court improperly

conflated two separate and distinct elements of the government’s proof.

We disagree. We begin by noting that, although the defendant challenges a

clause in one instruction, in reviewing an alleged error we are required to review

and assess the district court’s jury instructions as a whole without undue emphasis

on any particular clause. See United States v. Park, 421 U.S. 658, 674-75 (1975);

United States v. McConnel, 464 F.3d 1152, 1158 (10th Cir. 2006). In this case,

the jury instructions viewed as a whole tracked and recited each of the applicable

statutory elements for a CCE conviction; further, they clearly and correctly stated

the applicable legal standard under Section (c)(2)(B) – namely that “[t]he term

‘substantial income or resources’ means income in money or property which is

significant in size or amount as distinguished from some relatively insignificant,

insubstantial, or trivial amount.” Jury Instruction No. 18. 

Even if one could properly examine the italicized clause of which the

defendant complains in isolation, the district court’s instruction did not allow the
 To the extent that Mr. Torres-Laranega might be understood to suggest 4

that the challenged phrase in Jury Instruction No. 18 permitted the jury to find the

substantial income element by evidence either of the defendant’s position in the

organization or the volume of drugs handled by the organization, he does so for

the first time on appeal; having failed to present this issue to the district court in

the first instance, under our precedents Mr. Torres-Laranega must establish that

the district court did not merely err but committed plain error here as well. See

United States v. Shaffer, 472 F.3d 1219, 1227 (10th Cir. 2007). This Mr. TorresLaranega cannot do. His argument depends on a misconstruction of the

instruction; the clause at issue contains the conjunctive “and” – not a disjunctive

“or” – thereby clearly informing the jury that sufficient proof of both the

defendant’s position and the volume of drugs handled by the organization was

required. We are obliged as a matter of law to presume that the jury understood

and followed the district court’s direction on this score. See United States v.

Almaraz, 306 F.3d 1031, 1037 (10th Cir. 2002).

- 16 -

jury to infer that Mr. Torres-Laranega obtained substantial resources simply by

virtue of his position within the drug-trafficking organization. Before being

permitted to draw an inference that Mr. Torres-Laranega obtained substantial

resources, the district court required the jury to consider both the defendant’s

position within the organization and the volume of drugs handled by the

organization. This latter requisite is independent and additive to anything 4 

required under Section (c)(2)(A). It is also directly drawn from language

contained in a First Circuit decision, United States v. Hahn, 17 F.3d 502, 507 (1st

Cir. 1994), which was, in dicta, quoted by this Court in United States v. Maynard,

236 F.3d 601, 610 (10th Cir. 2000). 

The district court’s instruction, moreover, makes good sense of the

statutory language. Section (c)(2)(B) requires the jury to find that the defendant
 See United States v. Hutching, 75 F.3d 1453, 1458 (10th Cir. 1996) (this 5

Court will consider circumstantial evidence in determining if the government has

presented sufficient evidence supporting the defendant’s CCE conviction); Welch

v. City of Pratt, Kan., 214 F.3d 1219, 1224 (10th Cir. 2000) (jurors can use

evidence presented at trial along with their “common sense and experience to

draw sufficient inferences”); see also Jury Instruction No. 6 (“[Y]ou may make

deductions and reach conclusions that reason and common sense lead you to draw

from the facts which have been established by the evidence.”). 

- 17 -

“obtain[ed] substantial income or resources,” but does not command the

government to rely solely on direct evidence and does not otherwise define the

term. Here, as in virtually all matters at trial, the district court merely

emphasized that the government could prove its case by indirect or circumstantial

evidence and with reference to jurors’ common sense. Specifically, the district 5 

court’s challenged language permitted the government to prove its case based on

two inferences: first, that an organization that deals drugs in large volumes is

likely to have “substantial” income or resources to bestow on its participants, and,

second, that a person who holds a high-level position within such an organization

likely obtains a significant share of the organization’s income or resources. Both

of these propositions seem to us entirely faithful to the statutory language and

common sense. Using the district court’s reasoning in another setting, one might

infer from, say, the volume of business done by the Trump conglomerate, and

Donald Trump’s position as the head of those eponymous businesses, that Mr.

Trump himself obtains “substantial income or resources” from the enterprise. 
 Mr. Torres-Laranega briefly argues that the substantial income element of 6

the offense is not clearly defined and thus the statute should be held void for

vagueness. Appellant’s Br. 28. We have previously considered and rejected this

(continued...)

- 18 -

Direct proof it may not be, but a permissible and common sense inference it

surely is. 

To reject the district court’s instruction would, we think, also serve to

undercut the very purpose of the statute. In order to be successful, and thus avoid

detection, drug traffickers must camouflage all aspects of their businesses. The

ever evolving “arms race” between drug-trafficking enterprises and law

enforcement inspires and demands drug traffickers to become more sophisticated

in disguising not only their trafficking activity but also the resulting income. 

Aware of this, Congress deliberately chose to leave the term “substantial income

or resources” undefined and it is presumed to be aware of the law’s background

norm that, in such circumstances, the phrase will be read by jurors and courts

alike in accord with common sense inferences from daily life. See F.T.C. v.

Kuykendall, 466 F.3d 1149, 1154 (10th Cir. 2006) (“The starting point in

interpreting a statute must be the language employed by Congress, and we assume

that the legislative purpose is expressed by the ordinary meaning of the words

used.” (quotation omitted)). To require the government to proceed against drug

traffickers only when they can prove receipt of substantial income or resources by

means of more direct proof would be to disregard this principle. 

6 
(...continued) 6

line of argument, and we are bound by that result. See United States v. Dickey,

736 F.2d 571, 588 n.7 (10th Cir. 1984) (the term “substantial income,” read in its

statutory context, does not “fail to adequately warn an individual of the criminal

consequences of his action”).

 See also United States v. Zavala, 839 F.2d 523, 527 (9th Cir. 1988) 7

(holding that the large quantity of cocaine trafficked by the appellant’s enterprise

with a selling price of over $63,000 per kilogram provided sufficient evidence to

infer that “the appellant earned substantial income from the enterprise”); United

States v. Chagra, 669 F.2d 241, 257 (5th Cir. 1982) (defendant’s attainment

through the enterprise of several kilograms of cocaine and a large quantity of

marijuana, which would have brought “a handsome return” if not seized, would

alone have been sufficient to prove the substantial income or resources element),

`overruled on other grounds, Garrett v. United States, 471 U.S. 773 (1985);

United States v. Kirk, 534 F.2d 1262, 1278 (8th Cir. 1976) (holding that evidence

of the defendant’s role “as the leader of a large and active narcotics distribution

conspiracy” which distributed “large quantities of heroin and dealt with sufficient

money to be able to send agents to New York and California to buy heroin”

sufficient to permit the jury to find defendant obtained substantial income or

(continued...)

- 19 -

We find it noteworthy, too, that we are far from alone in reaching the

conclusion we do today. Circuit courts across the country faced with this issue

have ruled as we do, and we have been cited to no contrary authority. See Hahn,

17 F.3d at 507 (holding that the substantial income element may be met by

“circumstantial evidence [of] the defendant’s position in the criminal organization

and the volume of drugs handled by the organization”); United States v. Church,

955 F.2d 688, 697 (11th Cir. 1992) (evidence that “the organization reaped

approximately $140,000 [permitted the jury to] reasonably conclude that the

supervisors and managers of such a lucrative operation derived income from it”)

(quotation omitted).7 
(...continued) 7

resources from the operation) vacated in part on other grounds, 723 F.2d 1739

(1983); United States v. Sisca, 503 F.2d 1337, 1345-46 (2d Cir. 1974) (jury could

infer the defendant received substantial income or resources where the defendant

was the “operational kingpin” of a narcotics distribution network trafficking an

“enormous quantity of narcotics” and “substantial sums of money” changed

hands). 

- 20 -

III

Even if the jury was properly charged, Mr. Torres-Laranega argues there is

insufficient evidence in this record to show that he “obtain[ed] substantial income

or resources” from a “continuing series of violations.” See 21 U.S.C. § 848(c)

(reprinted above). We, of course, review such challenges de novo, but, out of

respect for the jury’s verdict and the district court’s judgment, in doing so we are

required to review the facts in the record in the light most favorable to the

prevailing party, here the government. See Almaraz, 306 F.3d at 1040.

At the outset, we ask what is the relevant “continuing series of violations”

subject to our review. The Supreme Court has instructed that the government

need not prove that a CCE defendant obtained substantial income or resources

from each violation that comprises the relevant series; rather, we are told, the jury

need find only that the defendant obtained substantial income or resources from

the series of violations viewed as a whole. See United States v. Richardson, 526

U.S. 813, 823 (1999). The Court in Richardson did leave open, however, the

question whether jury unanimity is required on which acts constitute “violations”
 To help dispel doubts about which violations the jury considered part of 8

the continuing series, the district court’s special verdict form required the jury to

find that the government proved beyond a reasonable doubt each element of the

CCE charge as “set forth in Instruction No. 18.” Verdict at 2. Instruction No. 18,

in turn, identified those acts charged in Counts 2 (conspiracy) and 3 (possession)

(continued...)

- 21 -

forming the requisite series for purposes of the substantial income or resources

and managerial control elements. Id. at 823-24. In Almaraz, we held that the jury

is not limited to considering as violations making up the requisite “continuing

series” only those acts for which it returns a unanimous guilty verdict. See 306

F.3d at 1037-39. Bound though as we are by these holdings, at least one further

question does remain unresolved: whether each of the violations constituting the

“continuing series” must be separately and specifically alleged in the indictment. 

See id. at 1039-1040. But, as in Almaraz, we believe the resolution of this

particular question can be left for another day. Id. In the case before us, the

indictment specifically charged that the violations of law constituting the

continuing criminal enterprise included: 

(i) possession of marijuana with an intent to distribute;

(ii) from June 8, 2002 through November 19, 2003, conspiring to

possess marijuana with an intent to distribute; and

(iii) possession with intent to distribute the marijuana found in each

of the four tractor trailers seized by the government. 

See Indictment at 1-2. For purposes of this appeal, we limit our review of the

sufficiency of the evidence to these specifically charged violations.8 
(...continued) 8

of the indictment as violations of the federal drugs laws which were part of the

continuing series. See Instruction No. 18 at 1. Thus, as in Almaraz, it appears in

this case that the district court went beyond what Richardson requires and

effectively ensured jury unanimity on each “violation” specifically identified in

the indictment.

- 22 -

 In doing so, we also bear in mind that, in constructing Section

848(c)(2)(B), Congress did not require proof of the defendant’s net income after

deductions for expenses and outlays; rather, it instructed us to examine only

whether the defendant obtained substantial “income,” a word which is ordinarily

understood to embrace gross receipts. See Dickey, 736 F.2d at 588 (“[I]t is

sufficient to show substantial gross receipts, gross income or gross expenditures

for resources.”); see also Webster’s Third New International Dictionary 1143

(2002) (income is “the value of goods and services received by an individual in a

given period of time”). 

Likewise, Congress instructed that Section (c)(2)(B) can be satisfied not

only with proof of “income” but also “resources,” a word that denotes not just

monetary receipts but also things in kind. See Webster’s Third New International

Dictionary 1934 (2002) (the definition of resource encompasses “immediate and

possible sources of revenue[: such as] rich natural” resources (emphasis added)). 

Thus, the fact that a defendant has not yet realized the monetary value associated

with his or her stock-in-trade is immaterial for assessing whether he or she has

obtained “substantial . . . resources.” Indeed, we do not doubt that any significant
- 23 -

retailer has “substantial resources,” if not income, tied up in its stocked

merchandise. Who can question that the tons of merchandise sitting on shelves in

any Wal-Mart have significant value and are considered by the company, and any

Wall Street analyst for that matter, to be substantial resources? So long as a

reasonable jury could infer from the proof presented that the defendant’s drug

stockpile was itself obtained through the alleged continuing criminal enterprise –

that is, “gain[ed]” or “attain[ed]” through the enterprise, see Webster’s Third New

International Dictionary 1559 (2002) – Section (c)(2)(B) is satisfied whether or

not the monetary value of those resources was ever realized. See United States v.

Herrera-Rivera, 25 F.3d 491, 499 (7th Cir. 1994) (“Money or drugs are both

‘resources’ within the meaning of the [CCE] statute.”); United States v. Graziano,

710 F.2d 691, 697-98 (11th Cir. 1983), cert. denied, 466 U.S. 937 (1984) (holding

that marijuana is a “resource” and that the defendant “obtained” constructive

possession of a “substantial” amount of this resource when he arranged for the

transportation of 4,800 pounds of marijuana from South Carolina to New York

City); United States v. Henderson, No. 02-3426, 78 Fed. Appx. 91, 93 (10th Cir.

Oct. 15, 2003) (unpub.) (holding that drugs purchased with money from prior

drug deals constitute “resources”). 

Here, the jury had before it ample evidence that Mr. Torres-Laranega

obtained substantial income or resources from the conduct charged in the

indictment. For example, the jury received evidence of four separate inchoate
- 24 -

transactions in which the government seized almost 5,000 kilograms worth of

marijuana from Mr. Torres-Laranega’s enterprise. Evidence was also presented to

the jury that, pursuant to the conspiracy charged as part of the continuing criminal

enterprise, Mr. Torres-Laranega acquired for distribution vast quantities of

marijuana through drug couriers traveling into the United States from Mexico. 

See supra at 4. The jury was free to infer that the 5,000 kilograms of drugs

seized by the government were obtained by Mr. Torres-Laranega in this manner

and, thus, that Mr. Torres-Laranega “obtained,” “gained” or “attained” substantial

resources through a violation charged in the indictment as part of the continuing

criminal enterprise. See supra at 23 (collecting cases); see also United States v.

Webster, 639 F.2d 174, 182 (4th Cir. 1981) (holding that “given the quantity of

drugs which were shown to have been moving in and out of [the defendant’s]

possession, the jury would have been justified in concluding that the defendant

had received tens of thousands or even hundreds of thousands of dollars from his

drug business”). 

The jury also received evidence of at least three successful drug runs made

by the enterprise during the course of the conspiracy alleged as part of the

continuing series of violations. See supra at 3-5, 21 n.8. Twice Ms. Alarcon

observed large quantities of marijuana depart from Las Cruces bound for Chicago. 

Id. There was also evidence that in early July of 2003, Mr. Barraza and his

brother successfully delivered a load of marijuana in a commercial tractor trailer
- 25 -

to Chicago on behalf of Mr. Torres-Laranega. See supra at 5. This is more than

sufficient as a matter of law; indeed, evidence of substantial income resulting

from a single significant successful transaction in a series of violations can,

standing alone, satisfy the CCE statute. See, e.g., United States v. Gonzalez, 940

F.2d 1413, 1424 (11th Cir. 1991), cert. denied, 502 U.S. 1047 (1992).

In addition, Ms. Alarcon testified that the going rate for driving tractor

trailers full of marijuana for Mr. Torres-Laranega during the course of the

conspiracy was $13,000 - $20,000 per delivery. Mr. Torres-Laranega did in fact

pay Ms. Alarcon, Mr. Mendivil, Mr. Barraza and others, thousands of dollars for

driving trucks and related transportation expenses. See supra at 3-9. Mr.

Torres-Laranega further promised bonuses of $20,000 to Mr. Fernandez and

another co-conspirator if the police did not seize a tractor trailer full of

marijuana. Still further evidence suggested that Mr. Torres-Laranega owned at

least two tractor trailers involved in the trafficking. And, of course, Mr. TorresLaranega paid for the legal bills of Mr. Mendivil when he was arrested while

transporting marijuana, as well as the costs associated with efforts to retrieve

seized tractor trailers from law enforcement authorities. We have previously held

that evidence of such significant expenditures by a defendant in connection with

his or her drug operation supplies a sufficient basis for a jury to infer the

defendant’s receipt of substantial income or resources from a drug enterprise. See

United States v. Rivera, 837 F.2d 906, 924-25 (10th Cir. 1988) (holding that
- 26 -

evidence solely of defendant’s large cash expenditures relating to the drug

enterprise – payment to employees transporting drugs and expenditures for large

transportation equipment such as aircraft and trucks – sufficient to meet the

substantial income or resources element), vacated in part on other grounds, 874

F.2d 754 (1989).

Mr. Torres-Laranega responds to this particular point by suggesting that his

expenditures “on behalf of the organization” were “business expenses” and thus

cannot be used even as circumstantial evidence that he attained substantial income

or resources from the enterprise. But, to put things in proper context, we feel

compelled to state the obvious: Mr. Torres-Laranega was the business. That is,

from the evidence adduced at trial, a reasonable juror surely could have

concluded that Mr. Torres-Laranega was, in essence, the “business’s” owner and

primary beneficiary. Further, the “business” did not have the imprimatur of any

state or other authority capable of bestowing it with an independent legal

existence; whatever assets or income – or expenses – “the business” had or

incurred were necessarily those of Mr. Torres-Laranega himself. 

Finally, neither Mr. Torres-Laranega nor his wife filed any tax returns for

the years 2001, 2002 or 2003. Yet, Mr. Torres-Laranega owned two homes, one

with an indoor swimming pool, and various luxury vehicles. Given the volume of

drugs under his control, the evidence of prior successful runs, the assets he

possessed, the money he expended in aid of the enterprise, and the lack of
- 27 -

evidence of Mr. Torres-Laranega having any legitimate job, the jury very

reasonably could have inferred that trafficking drugs was his full time, and rather

lucrative, occupation during the period of time encompassed by the conspiracy

charged in the indictment. This too suffices to support the jury’s verdict under

Section (c)(2)(B). See United States v. Wilson, 116 F.3d 1066, 1088 (5th Cir.

1997) (holding that the government is not required to present specific amounts

earned from the conspiracy; “the jury may infer substantial income from outward

evidence of wealth in the absence of other, legitimate sources of income”),

reversed on other grounds, 161 F.3d 256 (1998) (en banc); see also United States

v. Escobar-De Jesus, 187 F.3d 148, 174 (1st Cir. 1999) (jury entitled to conclude

that defendant obtained substantial income or resources where evidence

demonstrated that for a four-year period the defendant made expenditures of over

$238,000 for which no income source could be identified; in one year spent

$300,000 in cash; and had a net worth of over one million dollars). 

t t t

The district court’s judgment is AFFIRMED.