* Pursuant to Local Rule 47.5, the Court has determined

that this opinion should not be published and is not precedent

except under the limited circumstances set forth in Local Rule

47.5.4.

UNITED STATES COURT OF APPEALS

For the Fifth Circuit

No. 97-50269

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

VERSUS

RICARDO ARMENDARIZ;

SALVADOR TREVINO, also known as Minio;

BEATRICE ARMENDARIZ,

Defendants - Appellants.

Appeal from the United States District Court

For the Western District of Texas

(EP-96-CR-366-1)

July 13, 1998

Before WIENER, BARKSDALE, and DeMOSS, Circuit Judges.

DeMOSS, Circuit Judge:*

Defendants Beatrice Armendariz, Ricardo Armendariz, and

Salvador Treviño were among the parties charged in a multiple-party

indictment charging, inter alia, counts of conspiracy to possess
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and distribute marijuana and conspiracy to launder money. The

charges stemmed from a drug-running operation that smuggled

marijuana across the Mexican border and used commercial cargo

trucks to distribute the drugs across the country.

Mrs. Armendariz was convicted on one count of conspiring to

launder money instruments. She was given a special assessment of

$100 and sentenced to 168 months of imprisonment, to be followed by

three years of supervised release. She was fined $1,000 and

ordered to forfeit $5,000,000 in cash and property.

Mr. Armendariz and Mr. Treviño were each convicted on multiple

counts of conspiring to possess with intent to distribute a

quantity of marijuana, conspiring to launder monetary instruments,

and possessing with intent to distribute a quantity of marijuana.

They were each given a special assessment of $500 and sentenced to

concurrent sentences of 262 months, 240 months, 60 months, and 262

months of imprisonment. Their prison terms are to be followed by

five years of supervised release. They were each fined $200,000

and ordered to forfeit $5,000,000 in cash and property.

Beatrice Armendariz, Ricardo Armendariz, and Salvador Treviño

timely appealed.
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I. Sufficiency of the evidence
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Each of the defendants challenges the sufficiency of the

evidence adduced at trial in support of the government’s charges of

a conspiracy to launder money.

The standard of review applicable to the defendants’

sufficiency challenges is “whether a rational trier of fact could

have found that the evidence established guilt beyond a reasonable

doubt.” United States v. Stevenson, 126 F.3d 662, 664 (5th Cir.

1997). “All evidence and inferences from the evidence are to be

viewed in the light most favorable to the government.” Id. “The

evidence need not exclude every reasonable hypothesis of innocence

or be wholly inconsistent with every conclusion except that of

guilt, and this court will accept all credibility choices that tend

to support the verdict.” Id.

Count Two of the Second Superseding Indictment charged the

defendants with conspiring to violate 18 U.S.C. § 1956(a)(1)(A)(i).

The statute provides:

(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--

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

carrying on of specified unlawful activity;

* * *

* * *

shall be sentenced to a fine of not more than

$500,000 or twice the value of the property

involved in the transaction, whichever is greater,
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or imprisonment for not more than twenty years, or

both.

18 U.S.C. § 1956. The elements of the conspiracy offense are:

(1) agreement to commit the crime; (2) knowledge of the agreement;

(3) one overt act by a coconspirator in furtherance of the crime;

and (4) voluntary participation. See United States v. Fierro, 38

F.3d 761, 768 (5th Cir. 1994), cert. denied, 514 U.S. 1030, 115 S.

Ct. 1388 (1995); see also 18 U.S.C. § 1956(h) (“Any person who

conspires to commit any offense defined in this section or section

1957 shall be subject to the same penalties as those prescribed for

the offense the commission of which was the object of the

conspiracy.”). Notably with respect to the arguments presented by

the defendants, a conviction of conspiracy may be supported by

circumstantial evidence. See, e.g., Fierro, 38 F.3d at 767-68.

“It is not necessary to prove that the defendant was familiar with

every single detail of the conspiracy in order to prove intent, but

the Government must show knowledge of the conspiratorial agreement

and association with the plan.” United States v. Saenz, 747 F.2d

930, 938 (5th Cir. 1984), cert. denied, 473 U.S. 906, 105 S. Ct.

3531 (1985).

A. Beatrice Armendariz

Mrs. Armendariz unsuccessfully moved for a directed verdict of

innocence at the close of the government’s case. On appeal, she

argues, without any supporting authority:
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An examination of the records reveals that there

was little or no evidence produced against

Appellant, Beatrice Armendariz, directly. The

evidence produced at trial was against her codefendants primarily resulting in an inference that

the jury could easily follow in arriving at a

guilty verdict.

To the contrary, the record contains ample evidence supporting

the jury’s determination of Beatrice Armendariz’s guilt. First,

there is strong circumstantial evidence that Mrs. Armendariz was

fully aware of the illegal activities that surrounded her. For

example, there is evidence that her husband was active in marijuana

trafficking and received hundreds of thousands of dollars in drug

sale proceeds as payment for his role. See United States v. Cota,

953 F.2d 753, 760 (2d Cir. 1992) (an intimate business relationship

with a conspiracy ringleader is evidence of knowledge of the

unlawful activity from which proceeds used in a money laundering

conspiracy were derived). Also, the Armendarizes spent and

deposited much more money than their reported income. The jury

could infer that Mrs. Armendariz was not completely ignorant of her

husband’s activities or the source of their household income.

The jury heard evidence that Mrs. Armendariz was present while

thousands of dollars in drug proceeds were counted at the home of

Ricky Juarez. “Although mere association or presence by themselves

are insufficient to prove knowing participation in the agreement,

when combined with other relevant circumstantial evidence these

factors may constitute sufficient evidence to support a conspiracy
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conviction.” United States v. Brito, 136 F.3d 397, 409 (5th Cir.)

(citation omitted), cert. denied, 118 S. Ct. 1817 (1998); see also

United States v. Vergara, 687 F.2d 57, 61 (5th Cir. 1982).

Furthermore, there is evidence in the record that Mrs.

Armendariz actively participated in the scheme. Her job was to

find names that could be used for the receipt of wire transfers of

drug money. For example, there is evidence that she called a

connection in Florida to confirm the receipt of funds and that she

received an $8,000 wire transfer from a coconspirator, Jose

Delgado. Based on these facts, the jury could have inferred her

knowledge of the illegality of the money because there is no reason

to receive legitimate funds in the names of other individuals. The

jury also heard evidence that upon an instruction from her husband

that he needed “$10 for gas,” Mrs. Armendariz drove from Odessa to

El Paso and delivered $10,000 to him. This money was packaged in

the same fashion as the loads of currency transported and handled

by the coconspirators, and it was the precise amount needed to pay

for the transportation of marijuana from Mexico to the border.

Mrs. Armendariz does not challenge the existence of the

conspiracy or the presence of overt action, and the evidence is

plainly sufficient to support a jury finding that she had knowledge

and participated in the scheme. All of the elements of the crime

were proven, so the district court did not err in entering a guilty
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verdict against her on the one charge of conspiring to launder

money instruments.

B. Ricardo Armendariz and Salvador Treviño

Mr. Armendariz and Mr. Treviño did not make separate arguments

that the evidence presented by the government was insufficient to

support their money laundering conspiracy convictions. They did,

however, purport to adopt all of Mrs. Armendariz’s arguments

pursuant to FED. R. APP. P. 28(i). We have previously held that

under this Rule “an appellant may not adopt by reference

fact-specific challenges to his conviction.” United States v.

Morgan, 117 F.3d 849, 853 (5th Cir. 1997), cert. denied, 118 S. Ct.

454 (1998). A detailed evidence sufficiency analysis is simply

unnecessary with respect to these defendants because of their

failure to brief the argument.

II. Severance

Mrs. Armendariz and Mr. Treviño unsuccessfully moved to sever

their cases from that of their codefendants because Mr. Armendariz

had a prior drug-related conviction. Mr. Armendariz did not move

for severance. Mrs. Armendariz and Mr. Treviño now claim that

their defenses were prejudiced as a result of the district court’s

refusal to sever. Mrs. Armendariz briefed the argument. Mr.

Treviño simply adopted the argument by reference. We note once
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again that Mr. Treviño’s adoption of another defendant’s factspecific argument is an unavailing move under FED. R. APP. P. 28(i).

See Morgan, 117 F.3d at 853.

The district court’s decision not to sever defendants for

separate trials is reviewed for abuse of discretion. See United

States v. Capote-Capote, 946 F.2d 1100, 1104 (5th Cir. 1991), cert.

denied, 504 U.S. 942, 112 S. Ct. 2278 (1992). “[A] defendant is

not entitled to severance unless he can demonstrate specific

compelling prejudice that actually results in his having received

an unfair trial.” Id. “Any possible prejudice must, moreover, be

balanced against the public’s interest in efficient judicial

administration.” United States v. Hernandez, 962 F.2d 1152, 1157

(5th Cir. 1992).

Mrs. Armendariz argues that it was prejudicial to her to be

tried along with her husband because he had been previously

convicted of drug-related offenses. While Mrs. Armendariz was only

charged with one count of conspiring to launder money, her codefendants were also charged with possession of marijuana,

possession of marijuana with intent to distribute, conspiracy to

distribute marijuana, and money laundering. She thus argues that

both a quantitative and a qualitative disparity in the evidence

produced against her required severance, citing United States v.

Rocha, 916 F.2d 219 (5th Cir. 1990), cert. denied, 500 U.S. 934,

111 S. Ct. 2057 (1991).
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The Federal Rules of Criminal Procedure provide:

If it appears that a defendant or the

government is prejudiced by a joinder of offenses

or of defendants in an indictment or information or

by such joinder for trial together, the court may

order an election or separate trials of counts,

grant a severance of defendants or provide whatever

other relief justice requires. 

FED. R. CRIM. P. 14. The Supreme Court has commented on the

application of this rule, noting:

[A] district court should grant a severance under

Rule 14 only if there is a serious risk that a

joint trial would compromise a specific trial right

of one of the defendants, or prevent the jury from

making a reliable judgment about guilt or

innocence. Such a risk might occur when evidence

that the jury should not consider against a

defendant and that would not be admissible if a

defendant were tried alone is admitted against a

codefendant. For example, evidence of a

codefendant’s wrongdoing in some circumstances

erroneously could lead a jury to conclude that a

defendant was guilty. When many defendants are

tried together in a complex case and they have

markedly different degrees of culpability, this

risk of prejudice is heightened. Evidence that is

probative of a defendant’s guilt but technically

admissible only against a codefendant also might

present a risk of prejudice. Conversely, a

defendant might suffer prejudice if essential

exculpatory evidence that would be available to a

defendant tried alone were unavailable in a joint

trial. The risk of prejudice will vary with the

facts in each case, and district courts may find

prejudice in situations not discussed here. When

the risk of prejudice is high, a district court is

more likely to determine that separate trials are

necessary, but . . . less drastic measures, such as

limiting instructions, often will suffice to cure

any risk of prejudice.

Zafiro v. United States, 506 U.S. 534, 539, 113 S. Ct. 933, 938

(1993) (citations omitted). Our Court has entertained an argument
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for severance in a case where, as Mrs. Armendariz alleges, there is

a “great disparity" in the evidence offered against different codefendants. United States v. Harrelson, 754 F.2d 1153, 1175 (5th

Cir.), cert. denied, 474 U.S. 908, 106 S. Ct. 277 (1985). This

Court has further reasoned, however, that a mere quantitative

difference is “clearly insufficient in itself to justify severance;

a qualitative disparity must be shown as well.” Id. (citation

omitted); see United States v. Neal, 27 F.3d 1035, 1045 (5th Cir.),

cert. denied, 513 U.S. 1008, 115 S. Ct. 530 (1994).

The brief submitted by Mrs. Armendariz contains no support for

its bare allegation that at trial there was “not only a

quantitative but also a qualitative disparity" in the evidence

produced against her as compared to the evidence presented against

her codefendants. Our review of the record brings us to the

opposite conclusion. The jury heard no evidence of Ricardo

Armendariz’s prior marijuana convictions, so there was no prejudice

to the other defendants. More importantly, the jury was instructed

to compartmentalize the evidence against each defendant on each

count. See Zafiro, 506 U.S. at 539, 113 S. Ct. at 938 (limiting

instructions are a less drastic measure than severance which “often

will suffice to cure any risk of prejudice”). In addition, the

jury acquitted one of the defendants, demonstrating that it did

differentiate among different defendants. This trial lasted nine

days, and judicial economy would have been disserved by permitting
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separate trials. Our Court has affirmed denials of severance in

cases where there was a much stronger disparity in the evidence

presented. See, e.g., Harrelson, 754 F.2d at 1174-76. We are not

compelled to reverse the district court’s decision in this case.

Mrs. Armendariz failed to demonstrate “specific compelling

prejudice that actually result[ed] in h[er] having received an

unfair trial.” Capote-Capote, 946 F.2d at 1104. She has not,

therefore, articulated an interest which might outweigh “the

public’s interest in efficient judicial administration.”

Hernandez, 962 F.2d at 1157. Mrs. Armendariz’s failure to

demonstrate prejudice precludes any conclusion that the district

court abused its discretion. The same conclusion must be drawn for

Mr. Treviño, who simply adopted Mrs. Armendariz’s argument by

reference. Mr. Treviño makes no separate argument comparing the

evidence offered against him to the evidence offered against his

codefendants. On the facts of this case his argument that there

was a disparity in the evidence is no more compelling.

III. Admissibility of Evidence of Witnesses’ Prior Convictions

Mr. Armendariz and Mr. Treviño contend that the district court

erred by refusing to allow two of the government’s witnesses to be

cross-examined about prior convictions. One witness, Manuel

Castro, was convicted in 1978 for embezzlement. The other witness,

John Bennett, was convicted in 1963 for conspiring to steal a motor
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vehicle, in 1974 for interstate theft, and in 1982 for interstate

transportation of stolen property.

The district court excluded this evidence pursuant to the

Federal Rules of Evidence, which provide:

Rule 609. Impeachment by Evidence of Conviction of

Crime

(a) General rule. For the purpose of

attacking the credibility of a witness,

(1) evidence that a witness other than an

accused has been convicted of a crime shall be

admitted, subject to Rule 403, if the crime

was punishable by death or imprisonment in

excess of one year under the law under which

the witness was convicted, and evidence that

an accused has been convicted of such a crime

shall be admitted if the court determines that

the probative value of admitting this evidence

outweighs its prejudicial effect to the

accused; and

(2) evidence that any witness has been

convicted of a crime shall be admitted if it

involved dishonesty or false statement,

regardless of the punishment.

(b) Time limit. Evidence of a conviction

under this rule is not admissible if a period of

more than ten years has elapsed since the date of

the conviction or of the release of the witness

from the confinement imposed for that conviction,

whichever is the later date, unless the court

determines, in the interests of justice, that the

probative value of the conviction supported by

specific facts and circumstances substantially

outweighs its prejudicial effect. However,

evidence of a conviction more than 10 years old as

calculated herein, is not admissible unless the

proponent gives to the adverse party sufficient

advance written notice of intent to use such

evidence to provide the adverse party with a fair

opportunity to contest the use of such evidence.
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* * *

FED. R. EVID. 609 (emphasis supplied). The district court’s

evidentiary rulings are reviewed for abuse of discretion. See,

e.g., United States v. Acosta, 763 F.2d 671, 693 (5th Cir.), cert.

denied, 474 U.S. 863, 106 S. Ct. 179 (1985). The Fifth Circuit has

required district courts to be “extremely cautious in admitting

evidence of remote convictions.” United States v. Cathey, 591 F.2d

268, 275 (5th Cir. 1979) (citation omitted). Moreover, “[e]rror

may not be predicated upon a ruling which admits or excludes

evidence unless a substantial right of the party is affected.”

FED. R. EVID. 103(a).

Mr. Armendariz and Mr. Treviño contend that the prior

convictions of Mr. Castro and Mr. Bennett were relevant to their

credibility as witnesses, and therefore this evidence was necessary

to their defense. The defendants complain that the government

portrayed Mr. Castro as a disabled ex-Marine who is bankrupt, but

otherwise a good citizen. They also complain that Mr. Bennett was

portrayed as one who cooperated with the government out of the

goodness of heart who was unaware of what possible sentence he was

facing in his own case. They claim they needed the priorconvictions evidence to impeach these witnesses’ testimony.

The problems with this point of error are legion. First, the

defendants failed to provide notice to the government of their

intent to use the prior-convictions evidence as required by FED. R.
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EVID. 609(b). Second, all of those convictions are more than ten

years old, and the defendants have not established that "the

probative value of the [witnesses’] conviction[s] supported by

specific facts and circumstances substantially outweighs [their]

prejudicial effect.” FED. R. EVID. 609(b). Finally, it is

impossible to conclude that the defendants were prejudiced by the

exclusion of Mr. Bennett’s and Mr. Castro’s older convictions

because the record is full of other evidence that Mr. Bennett was

continually involved in criminal activity (including crossexamination about more recent convictions), and both Mr. Castro and

Mr. Bennett were extensively cross-examined about their deals with

the government.

To the extent that the defendants wanted to impeach the

credibility of these witnesses for bias, they were able to do so by

exploring the details of their bargains with the government.

Evidence of prior convictions would have added little, if anything,

on that score. To the extent that the evidence was sought for

simple character assassination, however, Rule 609 embodies a policy

judgment that convictions over ten years old are presumably not

probative of any relevant character trait except under the

circumstances embodied in the exception to the rule, in other

words, where the district court determines that “the probative

value of the conviction supported by specific facts and

circumstances substantially outweighs its prejudicial effect.”

FED. R. EVID. 609(b).
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Given that there is no apparent abuse of discretion in the

district court’s refusal to admit evidence of certain convictions

under Rule 609(b), and given that the defendants have failed to

demonstrate that this ruling affected their substantial rights, we

conclude that there was no error.

IV. Sentencing

Finally, Mr. Armendariz and Mr. Treviño contest their

sentences. They lodge several complaints on appeal. First, they

contest the amount of marijuana used to calculate base offense

levels. They characterize the evidence supporting the amount used

in sentencing as “vague, uncorroborated and untrustworthy.”

Second, they challenge the evidence used to apply four-level

leadership-role upward adjustments as “untrustworthy testimony of

the informants.” Third, they dispute the calculated amount of

gross proceeds, which “is based upon the testimony of Agent

Shuster, which in turn is based upon the testimony of informants.”

Finally, Mr. Armendariz contests his criminal history

categorization because there is no credible evidence of his

involvement in any offense prior to his probation discharge date.

Plainly, these are not legal arguments directed to the

district court’s application of the Sentencing Guidelines. Rather,

they are challenges to the factual determinations used by the

district court to calculate the defendants’ sentences. These
g:\opin\97-50269.opn

factual determinations are reviewed for clear error. See

Stevenson, 126 F.3d at 664. Factual findings for sentencing

purposes need only be supported by a preponderance of evidence, see

United States v. Herrera-Solorzano, 114 F.3d 48, 50 (5th Cir.

1997), and our independent review of the record convinces us that

the district court’s factual findings were not clearly erroneous.

Moreover, the district court relied on the factually detailed

presentence report, which “generally bears sufficient indicia of

reliability to be considered as evidence by the trial judge in

making guideline determinations, especially when there is no

evidence in rebuttal.” United States v. Hornsby, 88 F.3d 336, 339

(5th Cir. 1996). The defendants failed to offer or adduce evidence

showing that the factual statements in the presentence report were

materially inaccurate, untrue, or unreliable. Thus, we conclude

there is no error in the sentence imposed on Mr. Armendariz and Mr.

Treviño.

V. Conclusion

For the aforementioned reasons, the judgment of the district

court is AFFIRMED.