* The Honorable Wiley Y. Daniel, United States Dist rict Judge for the

District of Colorado, sitting by designation. 

## F I L E D United States Court of Appeals Tenth Circuit 

### MAR 11 1997 

### PATRICK FISHER Clerk PUBLISH UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

_____________________ UNITED STATES OF AMERICA,
Plaintiff-Appellee and Cross-Appellant,

v. DOLORAS CONTRERAS, Defendant-Appellant and Cross-Appellee. Nos. 95-2070 & 95-2126

_____________________ Appeal from the United States District Court for the District of New Mexico (D.C. No. CR-92-486-15-JC)

_____________________ Charles L. Barth (John J. Kelly, United States Atto rney, with him on the briefs), Assistant United States Attorney, Albuquerque, New Mexico, for PlaintiffAppellee and Cross-Appellant. Vicki Mandell-King (Michael Gordon Katz, Federal Pu blic Defender, with her on the briefs), Assistant Federal Public Defender for the Districts of Colorado and Wyoming, for Defendant-Appellant and Cross-Appellee

.

_____________________ Before BALDOCK, and BRORBY, Circuit Judges, and DANIEL, * District Judge. BRORBY , Circuit Judge.-2- _____________________
Doloras Contreras was convicted in the United State s District Court for the District of New Mexico on four counts in a multi-de fendant, multi-count indictment. The trial court departed downward from the United States Sentencing Guidelines and sentenced Ms. Contreras to a 120-month term of imprisonment. Ms. Contreras appeals her conviction, and the Unite d States appeals the trial court's decision to depart downward. We exercise j urisdiction pursuant to 28 U.S.C. § 1291, and we affirm in part and reverse in part.

I. FACTUAL AND PROCEDURAL BACKGROUND Gabriel Rodriguez-Aguirre ("Mr. Aguirre") managed afamily-run organization specializing in the sale and distribut ion of large amounts of marijuana and cocaine. United States v. Denogean , 79 F.3d 1010, 1011 (10th Cir.), cert. denied, 117 S. Ct. 154 (1996). "Between 1984 and 1992, t he ... organization sold more than 20,000 pounds of mariju ana and over 20,000 pounds of cocaine to narcotics traffickers in New Mexico, Arizona, Utah, Kansas, Massachusetts, and elsewhere throughout the United States." Id. The organization used narcotics proceeds to purchase re al property and other assets. Id.-3-

Doloras Contreras is the daughter of Mr. Aguirre. From December 1986 until October 1992, Ms. Contreras lived at a reside nce located in Phoenix, Arizona. During this time, Ms. Contreras used her residence to store large amounts of marijuana, cocaine, and United States cu rrency derived from the sale of controlled substances. Ms. Contreras participat ed in the possession and conspiracy to distribute at least 3,080 pounds of c ocaine and was involved in laundering $365,400.00 of illegally-derived currenc y.

On October 19, 1992, the United States filed a civi l complaint for forfeiture of property in the District of New Mexico entitled United States v. Fifty-One Items of Real Property , etc. , No. CIV 92-1155-JC. Although Ms. Contreras was one of the named claimants, she never filed a claim or answer. Consequently, the United States District Court entered a partial defa ult judgment against Ms. Contreras and others named in the civil forfeiture complaint.

The United States filed another civil forfeiture ac tion against Ms. Contreras in January 1993 entitled United States v. 247 Horses , No. CIV 93-0102-JC. Once again, Ms. Contreras did not file a claim or answer , and the court entered a partial default judgment against Ms. Contreras.-4-

On October 20, 1992, the United States charged Ms. Contreras and twentyone others, including Mr. Aguirre, in a bill of ind ictment filed in the District of New Mexico. The twenty-three count bill of indictm ent charged Ms. Contreras with conspiracy to distribute more than 100 grams o f marijuana, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A) (1994), and three counts of money laundering in violation of 18 U.S.C. § 1956(a)(1)(B)(i) (Supp. 19 96). The United States based the money laundering counts on purchases of a resid ence in Glendale, Arizona, a Nissan Pathfinder automobile at Lou Grubb Chevrolet , and eleven horses. Ms. Contreras pled not guilty to the charges against he r and proceeded to trial with her co-defendants in January 1994.

The original trial of Ms. Contreras and her co-defe ndants lasted six months, becoming "the longest federal criminal trial ever h eld in the District of New Mexico." United States v. Rodriguez-Aguirre , 73 F.3d 1023, 1024 (10th Cir. 1996). After deliberating for more than six weeks, the jury was unable to reach a verdict on the majority of counts, and the trial ju dge declared a mistrial. Id. Neither the United States nor counsel for Ms. Contr eras objected to the mistrial.

In August 1994, the United States obtained a supers eding indictment against Ms. Contreras and nine of her co-defendants . In addition to the charges1 Amador Investors was a real estate business Ms. C ontreras became

involved with in 1990. (Vol. 40 at 4909-10.) Alth ough she performed no work for the company, Ms. Contreras received a salary fr om Amador Investors and used a company credit card for personal expenses. (Id. at 4910-11, 4913-16.)

-5- included in the original indictment, the supersedin g indictment contained additional charges against Ms. Contreras. Count II charged Ms. Contreras with conspiracy to possess with the intent to distribute cocaine, and conspiracy to distribute cocaine. Count XIX charged Ms. Contrera s with receiving income from the distribution of controlled substances, and inve sting this income in Amador Investors, 1 in violation of 21 U.S.C. § 854 (1994). Although Ms. Contreras moved to dismiss the superseding indictment due to vindictive prosecution, the trial court summarily denied her motion.

The United States retried Ms. Contreras and her co- defendants in November and December 1994. Prior to trial, the court rando mly selected a jury panel of approximately 250 jurors at random from voter regis tration lists for the Roswell Division of the District of New Mexico. The distri ct judge excused 132 jurors sua sponte after individually reviewing the juror questionnai res; the court directed only 115 jurors to report for jury service. Six days prior to trial, defense counsel were provided copies of juror questionnaires for th e panel that had been selected for service, and defense counsel learned the court had excused the remaining2Pursuant to the court's order that "one motion ma de by one defense

counsel applies to all [defendants]," all the defen dants, including Ms. Contreras, adopted the motions of Mr. Aguirre and Mr. Morales.

-6- jurors.

On the first day of trial, prior to jury selection, Mr. Aguirre filed a motion to stay the proceedings, and defendant David Morale s filed a motion to quash the jury venire. 2 The motions alleged the jury venire panel serious ly misrepresented the ethnic makeup of the District of New Mexico. S pecifically, the defendants claimed persons of Hispanic origin and American Ind ian background were underrepresented. The defendants sought a stay of the trial to allow time for an investigation of the ethnic background of all the j urors. In addition, Mr. Morales' counsel, Paul Kennedy, advised the court orally of United States v. Calabrese , 942 F.2d 218 (3d Cir. 1991), which Mr. Kennedy clai med stood for the proposition that it is reversible error for a courtto exclude a juror prior to voir dire "simply because a juror knows a defendant." M r. Kennedy claimed it appeared the court had excused at least one juror b ecause the juror stated he or she knew one of the defendants.

Following Mr. Kennedy's comments, the court held anevidentiary hearing-7-

and Nancy Metzger, jury administrator for the Feder al Court Clerk's office, testified. Ms. Metzger stated the jury panel of ap proximately 250 jurors had been selected at random from voter registration lists. Ms. Metzger testified the district judge reviewed the juror questionnaires and directe d her to excuse more than 100 specific jurors. Ms. Metzger stated she did not kn ow the ethnicity of either the excused jurors or the jurors who had reported for s ervice.

The court then stated it had reviewed the individua l juror questionnaires and "retained the stack of those who, for some reas on or other, claimed that they couldn't serve." The court explained: I think it goes without saying that the ones that w ere not summoned, I never looked at the last name, whether it was [a] Hispanic surname or whether it was not a Hispanic surname, or whethe r they were American Indians or not. As a matter of fact, I'm not real sure that that's part of the questionnaire -- Ms. Metzger confirmed the questionnaire forms did n ot direct the jurors to provide their ethnicity.

The district court denied the defendants' motion to stay the proceedings and the defendants' motion to quash the jury venire. H owever, the court allowed the defendants to supplement the record within ten days of the completion of the trial with information concerning the racial composition of the District of New Mexico3 Ms. Denogean was severed out of the second trial due to illness and

entered into a plea agreement by which she admitted her responsibility in possessing with the intent to distribute in excess of 100 kilograms of marijuana. The court sentenced Ms. Denogean to an 84 month term of imprisonment pursuant to Fed. R. Crim. P. 11(e)(1)(c).

-8- and the Roswell Division. None of the defendants c hose to supplement the record with such information.

The trial of Ms. Contreras and her co-defendants la sted approximately one month. On December 15, 1994, the jury returned a v erdict against Ms. Contreras on four counts -- conspiracy, investment of illicitdrug profits, and two counts of money laundering. At sentencing, the trial court a dopted the factual findings and guideline application in Ms. Contreras' presentence report. Thus, the court determined Ms. Contreras had a base offense level o f 38, a criminal history category of I, and a guideline range of 235 to 293 months. Nevertheless, the court found Ms. Contreras' guideline range to be su bstantially higher than that applied to co-defendant Paula Denogean, who the cou rt concluded "was at least equally or maybe even ... more culpable than [Ms. C ontreras]." 3 To avoid an "unwarranted disparity of sentences," the court granted Ms. Contreras' motion for a downward departure and sentenced Ms. Contreras to 120 months based upon an adjusted base offense level of 31 and a sentencing range of 108-135 months.4Ms. Contreras did not raise the jury selection is sue in her briefs on

appeal. However, on November 4, 1996, Ms. Contrera s filed a motion to adopt this issue from the briefs of her co-defendants, David Morales, Gabriel AguirreRodriguez, and Eleno Aguirre. We hereby grant Ms. Contreras' Motion to Adopt.

-9- II. ISSUES RAISED ON APPEAL Ms. Contreras' appeal raises four issues: (1) whether the United States obtained her criminal convictions in violation of t he Fifth Amendment's protection against double jeopardy; (2) whether the superseding indictment filed after the mistrial should have been dismissed on gr ounds of prosecutorial vindictiveness; (3) whether the evidence was suffic ient to support Ms. Contreras' conviction on Count XVIII, money laundering; and (4 ) whether the district court's
pre- voir dire jury selection procedures violated Ms. Contreras' constitutional rights or her rights under the Jury Selection and S ervice Act of 1968, 28 U.S.C. § 1861-1878 (1994) 4 . The government's cross-appeal raises one issue: whether the trial court erred in departing downward from th e applicable guideline range to avoid a perceived disparity in sentences between Ms . Contreras and co-defendant Paula Denogean. Ms. Contreras contends the governm ent's appeal should be dismissed as untimely filed.-10-

III. ANALYSIS A. Ms. Contreras' Appeal 1. Double Jeopardy Ms. Contreras first claims her criminal convictions should be dismissed because they were obtained in violation of the Fift h Amendment's prohibition against double jeopardy. According to Ms. Contrera s, the judicial forfeiture proceedings that preceded her criminal convictions served to adjudicate her personal culpability. Thus, upon entry of default judgment in these proceedings, Ms. Contreras contends jeopardy attached, precludin g the United States from instituting criminal proceedings against her based on the same underlying conduct.

Fed. R. Crim P. 52(b) provides a court of appeals w ith a limited power to correct errors that were not raised in district cou rt. United States v. Olano , 507 U.S. 725, 731 (1993). Under this rule, an appeals court has discretion to review a forfeited error if the error is "plain" and "affect [s] substantial rights." Id. at 732; see also Fed. R. Crim. P. 52(b). However, the court shouldnot exercise that discretion unless the error "'seriously affect[s] the fairness, integrity or public reputation of judicial proceedings.'" Olano , 507 U.S. at 732 (quoting United States v. Young , 470 U.S. 1 (1985). Here, Ms. Contreras' double j eopardy claim,5 Ms. Contreras alleges she asserted the double jeo pardy issue in "her

supplement to Aguirre's motion in arrest of judgment." Unfortunately, Ms. Contreras does not provide the court with the recor d cite to this alleged document, in violation of Tenth Circuit Rule 28.1. After an exhaustive search of the docket sheet and the entire record, the court has been una ble to locate any document entitled "supplement to Aguirre's motion in arrest of judgment." Furthermore, the court has been unable to find any place in the reco rd where Ms. Contreras raised the double jeopardy issue before the district court . Consequently, we review the double jeopardy issue for plain error.

-11- if established, would be a plain error affecting th e fairness of the district court proceedings. Thus, we exercise our discretion unde r Rule 52(b) and review Ms. Contreras' double jeopardy claim for plain error. 5

In United States v. Ursery , ___ U.S. ___, ___, 116 S. Ct. 2135, 2138-39 (1996), the government instituted civil forfeiture proceedings against defendant Guy Ursery's home, alleging the home had been used to facilitate the processing and distribution of marijuana. The government subs equently charged Mr. Ursery with manufacturing marijuana, and a jury convicted him on the charge. Id. On appeal, the Sixth Circuit reversed Mr. Ursery's cri minal conviction on the grounds the conviction violated the Fifth Amendment's Doubl e Jeopardy Clause. Id. Thereafter, the Supreme Court granted certiorari to determine the issue of whether a civil forfeiture constitutes punishment for purpo ses of the Double Jeopardy Clause. Id. at 2138. In analyzing this issue, the Court noted that "[s]ince the-12-

earliest years of this Nation, Congress has authori zed the Government to seek parallel in rem civil forfeiture actions and criminal prosecutions based upon the same underlying events." Id. at 2140 (citations omitted). Concluding Congress intended in rem civil forfeiture to be a "remedial civil sanction, distinct from potentially punitive in personam civil penalties such as fines," the Court ruled civil forfeitures are neither "punishment" nor "cri minal" for purposes of the Double Jeopardy Clause. Id. at 2141-42, 2149. Consequently, the Court held th e government could constitutionally pursue both civil forfeiture and criminal charges against Mr. Ursery. Id. at 2149.

Since civil forfeiture proceedings do not constitut e punishment under the Double Jeopardy Clause, Ms. Contreras was not place d in jeopardy by either of the civil forfeiture proceedings brought against he r. Only the criminal proceedings subjected Ms. Contreras to punishment f or purposes of double jeopardy. Thus, Ms. Contreras' criminal conviction s did not violate the Fifth Amendment's Double Jeopardy Clause.

This court's holding in Denogean , a case involving Ms. Contreras' codefendant, Paula Denogean, also is dispositive of M s. Contreras' double jeopardy claim. 79 F.3d at 1010. There, Ms. Denogean argue d her drug-related conviction-13-

violated the Double Jeopardy Clause because it was obtained subsequent to civil forfeiture proceedings. Id. at 1012. We dismissed Ms. Denogean's appeal on th e grounds she failed to judicially contest the United States' forfeiture action. Id. at 1013. Relying on prior Tenth Circuit case law, we held "a defendant's failure to judicially contest a civil forfeiture action is fat al to her double jeopardy challenge to a subsequent criminal proceeding." Id.

Similar to Ms. Denogean, Ms. Contreras did not cont est the civil forfeiture proceedings brought against her. Thus, under Denogean , Ms. Contreras was a non-party who was not placed at risk by the forfeit ure proceedings. "[W]ithout risk of a determination of guilt, jeopardy does notattach, and neither an appeal nor further prosecution constitutes double jeopardy ." Id. (internal quotation marks omitted).

2. Prosecutorial Vindictiveness Ms. Contreras next argues the district court shouldhave dismissed the superseding indictment due to prosecutorial vindict iveness. Following the mistrial, the government filed a superseding indict ment expanding the charges against Ms. Contreras to include possession with th e intent to distribute and distribution of cocaine, and to include another cou nt against Ms. Contreras-14-

relating to her investment of funds in Amador Inves tors. Ms. Contreras contends the new charges were known to the government prior to the first trial and were motivated by vindictiveness.

The Supreme Court has stated the very purpose of in stituting criminal proceedings against an individual is to punish; the refore, the mere presence of a punitive motivation behind prosecutorial action doe s not render such action constitutionally violative. United States v. Goodwin , 457 U.S. 368, 372 (1982). However, "[t]o punish a person because he has done what the law plainly allows him to do is a due process violation 'of the most b asic sort.'" Id. (quoting Bordenkircher v. Hayes , 434 U.S. 357, 363 (1978)).

While a prosecutor may penalize a defendant for vio lating the law, a prosecutor may not punish a defendant for "exercisi ng a protected statutory or constitutional right." Goodwin , 457 U.S. at 372. Therefore, our focus in analyzing a claim of prosecutorial vindictiveness m ust be whether "'as a practical matter, there is a realistic or reasonable likeliho od of prosecutorial conduct that would not have occurred but for hostility or puniti ve animus toward the defendant because he exercised his specific legal right. '" United States v. Raymer , 941 F.2d 1031, 1042 (10th Cir. 1991) (emphasis added) (quoti ng United States v. Gallegos--15-

Curiel , 681 F.2d 1164, 1169 (9th Cir. 1982)).

Since vindictive prosecution claims often turn on t he facts of the case, we review a district court's factual findings under th e clearly erroneous standard, while we review the legal principles guiding the di strict court de novo . Raymer , 941 F.2d at 1039 (citing United States v. Schoolcraft , 879 F.2d 64, 67 (3d Cir.), cert. denied, 493 U.S. 995 (1989)). To establish a claim of vi ndictive prosecution, the defendant must show either: (1) a ctual vindictiveness or (2) a reasonable likelihood of vindictiveness, which thenraises a presumption of vindictiveness. Raymer , 941 F.2d at 1040. Once the defendant successfull y establishes either, the burden shifts to the prosec ution to justify its decision with "legitimate, articulable, objective reasons." Id. If the defendant is unable to prove actual vindictiveness or a realistic likeliho od of vindictiveness, a trial court need not reach the issue of government justificatio n. Id.

In the present case, Ms. Contreras does not assert an actual vindictiveness claim; rather, she contends the circumstances surro unding the enhancement of charges were such that a reasonable likelihood of v indictiveness exists. We disagree.-16-

Generally, where, as here, a modification in a char ging decision follows a mistrial occurring for neutral reasons, such as a h ung jury, and without objection from the government, no presumption of vindictivene ss is raised because there is no reason why the prosecutor would consider the def endant responsible for the need for a new trial. United States v. Doran , 882 F.2d 1511 (10th Cir. 1989). Nevertheless, the Supreme Court has refused to adop t per se rules in the prosecutorial vindictiveness context. Id. at 1521. Consequently, to determine whether a reasonable likelihood of vindictiveness e xists, we must look to the totality of the objective circumstances surrounding the prosecutorial decision. Id.

In Doran , the defendant was tried on two counts in a multi- defendant, multi-count indictment. 882 F.2d at 1513-14. Duri ng the trial, the defendant's attorney was hospitalized, and the court declared amistrial. Id. at 1513. Thereafter, the defendant filed a motion to dismiss the indictment under the Speedy Trial Act, and the district court orally dis missed that motion. Id. Contemporaneous with the defendant's appeal of the motion to dismiss, the government filed a superseding indictment adding fi ve counts against him. Id. Following the defendant's trial and conviction on t he charges in the superseding indictment, the defendant appealed to this court ar guing, inter alia, prosecutorial vindictiveness motivated the additional counts. Id. at 1518, 1527.6We found only two facts in Doran supported an inference of

vindictiveness: (1) the United States added the ch arges after Doran asserted his speedy trial rights, and (2) the United States had already spent considerable time analyzing the evidence and determining the appropri ate charges prior to the first trial. Id. These facts were insufficient to create a presump tion of prosecutorial vindictiveness. Id. at 1521-23.

-17- Because the government added the new charges agains t Mr. Doran after the assertion of his speedy trial rights, we applied a "totality of the circumstances" test to conclude there was no reasonable likelihood that improper prosecutorial vindictiveness motivated the government to impose the new charges. 6 Id. at 1520- 21.

In the instant case, the objective circumstances su rrounding the prosecutor's decision to increase the charges against Ms. Contre ras are as follows. The district court declared a mistrial in the original trial of Ms. Contreras after more than six weeks of jury deliberations. Rodriguez-Aguirre , 73 F.3d at 1024. The court declared a mistrial because the jury was unable to reach a verdict, and neither the prosecution nor the defense objected to the mistria l. Following the mistrial, the government received some negative publicity from th e media. Prior to Ms. Contreras' second trial, the government filed a sup erseding bill of indictment adding new charges against her. The government was aware of the information pertinent to the added cocaine charges prior to Ms. Contreras' first trial.-18-

We find the above circumstances, coupled with the f act Ms. Contreras failed to exercise a specific legal right, insuffic ient to create a presumption of prosecutorial vindictiveness. The United States fi led the superseding indictment after a mistrial was declared, without objection, f or neutral, uncontrollable reasons. Consequently, the specter of prosecutoria l animosity is not raised. Although the United States suffered some adverse me dia coverage following the mistrial, we are not persuaded the superseding indi ctment was filed in retaliation for the negative publicity. Given the fact a presu mption of prosecutorial vindictiveness was not raised in Doran where additional charges were filed contemporaneous with the assertion of the defendant 's Speedy Trial rights, we do not see how such a presumption could arise in this case from negative press coverage. Moreover, we do not believe a presumptio n of vindictiveness flows from the United States' knowledge of Ms. Contreras' involvement in cocaine trafficking prior to the first trial. The overall complexity of this multi-indictment, multi-defendant case "permit[s] a reasonable infere nce that given extra time to analyze the evidence, the Government legitimately d ecided the new theory of liability was appropriate." See Doran , 882 F.2d at 1522. We therefore conclude Ms. Contreras has failed to create a presumption of prosecutorial vindictiveness.-19- 3. Money Laundering Finally, Ms. Contreras argues the evidence at trial was insufficient to support her conviction on Count XVIII, money launde ring. In reviewing the sufficiency of the evidence in a criminal case, "'[ t]he evidence --both direct and circumstantial, together with reasonable inferences to be drawn therefrom -- is sufficient if, when taken in the light most favorab le to the government, a reasonable jury could find the defendant guilty bey ond a reasonable doubt.'" United States v. Sanders , 929 F.2d 1466, 1470 (10th Cir.) (quoting United States v. Hooks , 780 F.2d 1526, 1531 (10th Cir.), cert. denied, 475 U.S. 1128 (1986)), cert. denied, 502 U.S. 846 (1991).

The jury in this case convicted Ms. Contreras of vi olating 18 U.S.C. § 1956(a)(1)(B)(i) in purchasing a Nissan Pathfinde r. To obtain a conviction under this statuts, the government is required to p rove the following four elements beyond a reasonable doubt: (1) the defendant engaged in a financial transactio n; (2) the defendant knew the property involved in the transaction represented the proceeds of unlawful activities; (3) the property involved was in fact the proceeds of unlawful activity; and (4) the defendant knew the transaction was designed"in whole or in part ... to conceal or disguise the nature, the location, th e source, the ownership, or the control of the proceeds of specified unlawful activ ity."-20-

18 U.S.C.A. § 1956(a)(1)(B)(i) (Supp. 1996); United States v. Garcia-Emanuel , 14 F.3d 1469, 1473 (10th Cir. 1994). On appeal, Ms . Contreras contends the United States failed to prove the fourth element of money laundering -- that is, Ms. Contreras purchased the Nissan Pathfinder with the intent to conceal. According to Ms. Contreras, the purchase of the aut omobile demonstrates no more than "money spending"; the evidence only indicates Mr. Aguirre "openly and conspicuously" purchased the car for his daughter's personal use.

In enacting 18 U.S.C.A. § 1956(a)(1)(B)(i), Congres s did not intend to create a statute punishing mere "money spending." See Sanders , 929 F.2d at 1474. Rather, Congress designed the money launderi ng statute to "reach commercial transactions intended (at least in part) to disguise the relationship of the item purchased with the person providing the pr oceeds and that the proceeds used to make the purchase were obtained from illega l activities." Sanders , 929 F.2d at 1472. A money laundering conviction need n ot be supported by evidence of the launderer's intent to conceal his or her identitywhile conducting the transaction. Garcia-Emanuel , 14 F.3d at 1473. "'[T]he statute is aimed broadl y at transactions designed in whole or in part to concea l or disguise in any mannerthe nature, location, source, ownership or control of t he proceeds of unlawful activity.'" Id. (emphasis in original) (quoting United States v. Lovett , 964 F.2d-21-

1029, 1034 n.3 (10th Cir.), cert. denied, 506 U.S. 857 (1992)).

As we noted in Garcia-Emanuel , separating money laundering from mere money spending is often a formidable task. 14 F.3dat 1474. In ascertaining whether the requisite intent to disguise or conceal was present, we consider a variety of types of evidence including: statements by a defendant probative of intent to conceal; unusual secrecy surrounding the transaction; structuring the transaction to avoid attention; depositing illegal profits in the bank account of a legitimate business; highly irregular features of t he transaction; using third parties to conceal the real owner; a series of unusual fina ncial moves cumulating in the transaction; and expert testimony on practices of c riminals. Id. at 1475-76. Of course, this is not an exclusive list of factors fo r a court to consider when determining whether a defendant possessed the intent to disguise or conceal. Id. at 1476.

The evidence in the present case reveals Ms. Contre ras purchased a Nissan Pathfinder from co-defendant Art Rubio, a salesman at Lou Grubb Chevrolet. The car was purchased by way of a $25,000.00 Bancom er check. The check, made payable to Lou Grubb, was signed by a Bancomerofficial and drawn on the account of Texas Commerce Bank in El Paso, Texas. The check lists no remitter,-22-

and it is impossible to determine the funds' source from the face of the check. Given the vague and highly unusual attributes of th e check used to purchase a vehicle for personal use, a reasonable jury could h ave concluded the evidence demonstrated Ms. Contreras' intent to disguise the illicit source of the funds. Thus, we find sufficient evidence supports Ms. Contreras' conviction on Count XVIII, money laundering.

4. Jury Selection Ms. Contreras contends the district court's sua sponte excusal of over half of the jury panel, prior to voir dire , violated the Jury Selection and Service Act, as well as Ms. Contreras' constitutional rights. W e review Ms. Contreras' statutory challenge and constitutional claims separ ately.

a. Jury Selection and Service Act Ms. Contreras first contends the district court's p re- voir dire excusals violated the Jury Selection and Service Act of 1968 . In general, "[t]he trial judge is vested with a wide discretion for determining th e competency of jurors and his judgment will not be interfered with except in the case of an abuse of discretion." United States v. Porth , 426 F.2d 519, 523 (10th Cir.) (internal quotationmarks omitted), cert. denied, 400 U.S. 824 (1970). However, to the extent Ms.-23-

Contreras' contentions rest on statutory interpretations of the Jury Selection and Service Act, we review the district court's decisio ns de novo to determine whether the jury selection process failed to substantially comply with the Jury Selection and Service Act. 28 U.S.C. § 1867 (1994); United States v. Bailey , 76 F.3d 320, 321 (10th Cir.), cert. denied, 116 S. Ct. 1889 (1996).

The Jury Selection and Service Act of 1968 governs the selection of grand and petit juries in federal court, and "seeks to en sure that potential grand and petit jurors are selected at random from a representative cross section of the community and that all qualified citizens have the opportunity to be considered for service." United States v. Bearden , 659 F.2d 590, 593 (5th Cir. 1981) (citing 28 U.S.C. § 1861), cert. denied, 456 U.S. 936 (1982). To achieve these objectives, the Jury Selection and Service Act requ ires each United States District Court to devise a written plan for the random selec tion of jurors. 18 U.S.C. § 1863. While the Jury Selection and Service Act p rovides the district court with a reasonable degree of flexibility in designing a p lan to accommodate local conditions, the regulation prescribes a general pro cedural scheme to be followed. Id. ; Bearden , 659 F.2d at 594.

Section 1866(c) of the Jury Selection and Service A ct sets forth the-24-

circumstances under which a qualified juror may be removed from service. The section provides, in pertinent part, as follows: [e]xcept as provided in section 1865 of this title or in any jury selection plan provision ..., no person ... shall b e disqualified, excluded, excused, or exempt from service as jurors : Provided, That any person summoned for jury service may be (1) exc used by the court, or by the clerk under supervision of the cou rt if the court's jury selection plan so authorizes, upon a showing of und ue hardship or extreme inconvenience, ... or (2) excluded by the c ourt on the ground that such person may be unable to render impartial jury service or that his service as a juror would be likely to disr upt the proceedings, or (3) excluded upon peremptory challenge as provid ed by law, or (4) excluded pursuant to the procedure specified by lawupon a challenge by any party for good cause shown, or (5) excluded upon determination by the court that his service as a ju ror would be likely to threaten the secrecy of the proceedings, or othe rwise adversely affect the integrity of jury deliberations. 28 U.S.C. § 1866(c). This section further provides that a juror may not be excluded under category (5) unless the court determ ines, in open court, that such an exclusion is warranted. Id.

A party challenging the jury selection process unde r the Jury Selection and Service Act must make his challenge "before the voi r dire examination begins, or within seven days after the defendant discovered orcould have discovered, by the exercise of diligence, the grounds therefor, whiche ver is earlier." 28 U.S.C. § 1867(a). The motion must contain a "sworn statem ent of facts which, if true, would constitute a substantial failure to comply wi th the [Jury Selection and-25-

Service Act]." 18 U.S.C. § 1867(d). The Jury Sele ction and Service Act's procedural requirements are designed to give the di strict court an opportunity to evaluate the alleged noncompliance and to correct s uch noncompliance before precious judicial resources are invested in a trial . Strict compliance with these procedural requirements is essential. See United States v. Kennedy , 548 F.2d 608, 612-14 (5th Cir.), cert. denied, 434 U.S. 865 (1977).

In the present case, we must first determine whethe r Ms. Contreras sufficiently complied with the procedural requireme nts of the Jury Selection and Service Act. The United States contends Ms. Contre ras' challenge to the district court's jury selection process is barred by the def endants' failure to file a sworn affidavit with their motions challenging the select ion of the jury. Although Ms. Contreras concedes a sworn statement of facts was n ot filed with the defendants' motions, she argues such an affidavit should be exc used in this case. According to Ms. Contreras, the testimony elicited from the c ourt and the jury administrator on the first day of trial served as an adequate sub stitute for the sworn affidavit requirement. See Calabrese , 942 F.2d at 222.

As noted, courts have strictly enforced the procedu ral requirements of the Jury Selection and Service Act, including the swornstatement requirement. In-26-

Kenned y, the Fifth Circuit concluded the district court's emergency use of volunteer jurors constituted a substantial failure to comply with the Jury Selection and Service Act. 548 F.2d at 612. Nevertheless, t he court affirmed the defendant's conviction because the defendant failed to accompany his motion challenging the jury panel with a sworn statement. Id. at 613. Finding Congress left no room for "ad hoc review" of the sworn state ment requirement's usefulness, the court explained: In the [Jury Selection and Service] Act, Congress s et out a uniform, relatively strict scheme for jury selection. Congr ess included a new remedy for substantial violations of the Act, regar dless of whether the litigant challenging the jury had been prejudic ed by the jury selection. As a price for this remedy, Congress wa s entitled to exact strict compliance with formal procedural rules. Id.

Similarly, in United States v. Cooper , 733 F.2d 1360, 1362, (10th Cir.), cert. denied, 467 U.S. 1255 (1984), defendant Darryl Threat, wh o was convicted of aiding and abetting the passing of counterfeit m oney, argued to this Circuit the jury selection process did not insure "a jury selec ted at random from a fair cross section of the community." Id. at 1366. In reviewing Mr. Threat's contention, we noted "a defendant is required [under Section 1867( d)] to submit a sworn statement of facts ..., which if true would constit ute a failure to comply with the provisions of the [Jury Selection and Service] Act. " Id. at 1366. Finding no-27-

evidence that Mr. Threat filed a sworn affidavit wi th the district court, we rejected Mr. Threat's claim and affirmed his convic tion. Id; see also United States v. Maldonado , 849 F.2d 522, 523 (11th Cir. 1988) (defendant fai led to preserve objection to jury selection because no swo rn statement was submitted with motion); United States v. LaChance , 788 F.2d 856, 876 (2d Cir.) (untimely motion that did not contain sworn statement of fact s properly denied), cert. denied, 479 U.S. 883 (1986) ; United States v. Wellington , 754 F.2d 1457, 1468 (9th Cir.) (defendant's failure to file sworn state ment precluded relief), cert. denied, 474 U.S. 1032 (1985); United States v. Foxworth , 599 F.2d 1, 3 (1st Cir. 1979) (report filed with motion was not sworn and therefore precluded challenge to jury selection process).

Other circuits have so strictly construed the swornstatement requirement they have dismissed a Jury Selection and Service Ac t claim where a defendant has filed a sworn statement, but the sworn statement ha s been insufficient to satisfy § 1867(d). For example, in United States v. Paradies , 98 F.3d 1266, 1277-78 (11th Cir. 1996), petition for cert. filed, (U.S. Feb. 21, 1997) (No. 96-1346), the defendants filed a sworn statement along with a tim ely motion objecting to the district court's sua sponte excusal of over seventy potential jurors prior to voir dire . However, the Eleventh Circuit concluded the defe ndants' challenge to the7The clerk testified immediately after the defenda nts objected to the

district court's exclusions.

-28- jury selection process was barred because the swornaffidavit did "not state facts which, if true, would [have] constitute[d] anyviolation of the Jury Selection Act." (Emphasis in original.) Id. at 1278-79; see also United States v. Percival , 756 F.2d 600, 614-15 (7th Cir.1985) (trial court proper ly denied challenge to jury selection where sworn statement did not constitute substantial failure to comply with Jury Selection and Service Act).

Notwithstanding the enormous weight of authority to the contrary, Ms. Contreras contends her failure to file a sworn stat ement is not fatal to her claim under the Jury Selection and Service Act. Relying upon the Third Circuit's decision inCalabrese , Ms. Contreras contends the evidentiary hearing he ld on the first day of trial served as an adequate substitute for the sworn affidavit requirement. In Calabrese , the district court excused twelve jurors prior to voir dire because the jurors stated they knew one of the def endants. 942 F.2d at 221. The defendants timely objected to the district court's exclusions, but failed to file a sworn statement of facts. Id. at 222. To satisfy the requirements of § 1867(d), the defendants relied upon the sworn testimony of the clerk of court who had granted the allegedly unwarranted exclusions. 7 Id. The Third Circuit held the-29-

clerk's sworn testimony satisfied the sworn stateme nt requirement. Id. Noting the clerk's testimony "contained undisputed facts, suff icient to provide the district court with a basis for making a decision," the dist rict court held the clerk's sworn testimony sufficiently complied with the procedural requirements of the Jury Selection and Service Act. Id.

It appears the Third Circuit is the only court thathas recognized a substitute to the sworn affidavit requirement. Ms. Contreras has not provided any case law other than Calabrese in support of her position, and our independent research has failed to unearth any other cases reco gnizing an exception to the sworn statement requirement. Based on our thoroughreview of all relevant authorities, we conclude the exception created by t he Third Circuit in Calabrese is contrary to the overwhelming weight of authority , and we refuse to recognize this exception. 28 U.S.C. § 1867(d) unequivocally requires a motion challenging jury selection procedures to contain "a sworn state ment of facts which, if true, would constitute a substantial failure to comply wi th the [Jury Selection and Service Act]." Congress has determined the procedu res prescribed under § 1867 "shall be the exclusive means" by which a person may challenge jury selection procedures. 28 U.S.C. § 1867(e).-30-

The circuit courts, including the Tenth Circuit, have overwhelmingly interpreted the Jury Selection and Service Act's sw orn statement requirement strictly. Based on the plain language of § 1867(d) , and the previously cited cases strictly interpreting this provision, we refuse to recognize the substitute to the sworn statement requirement recognized by the ThirdCircuit in Calabrese . As a result, Ms. Contreras' claim under the Jury Selecti on and Service Act is precluded due to the defendants' failure to accompany their m otions challenging the jury selection process with a sworn affidavit.

b. Sixth Amendment Fair-Cross-Section Claim Ms. Contreras argues the district court's pre- voir dire excusal of over half the jury panel resulted in a venire panel that unde rrepresented Hispanics, thus violating her Sixth Amendment rights. We review th e district court's factual determination that the jury panel did not underrepr esent Hispanics for clear error. United States v. McKinney , 53 F.3d 664, 670 (5th Cir.), cert. denied, 116 S. Ct. 261 (1995).

The Supreme Court has declared "the selection of a petit jury from a representative cross section of the community is anessential component of the Sixth Amendment right to a jury trial." Taylor v. Louisiana , 419 U.S. 522, 528-31-

(1975). Although a petit jury need not "mirror the community," jury panels or venires "must not systematically exclude distinctiv e groups in the community and thereby fail to be reasonably representative thereo f." Id. at 538. To establish a prima facie violation of a defendant's right to a jury drawn f rom a fair cross section of the community, the defendant must show: (1) the group alleged to be excluded is a "distinctive" group in the community; (2) the representation of this group in jury venires is not fair and reasonable inrelation to the number of such persons in the community; and (3) the underrepresentation is due to systematic exclusion of the group in the jury-selection proces s. Duren v. Missouri , 439 U.S. 357, 364 (1979).

In the present case, Ms. Contreras cannot prevail o n her "fair-cross-section" claim because the defendants failed to establish th e second prong of the prima facie case. To show a jury panel has seriously und errepresented a distinctive group, the defendant must first demonstrate the per centage of the community made up of the group allegedly underrepresented, "f or this is the conceptual benchmark for the Sixth Amendment fair-cross-sectio n requirement." Id. After denying the defendants' motion to quash the jury ve nire panel on the first day of trial, the district court granted the defendants pe rmission to supplement the record with evidence concerning the racial composition of the Roswell Division of the-32-

District of New Mexico within ten days of the compl etion of trial. None of the defendants supplemented the record with such inform ation. Consequently, this court is unable to determine whether the number of Hispanics on the jury panel was not fair and reasonable in relation to the numb er of such persons in the New Mexico community.

Moreover, even if evidence existed tending to show Hispanics were seriously underrepresented on the jury panel, Ms. C ontreras would still lack sufficient evidence to establish a prima facie case. Ms. Contreras has failed to prove any underrepresentation of Hispanics due to their systematic exclusion in the jury selection process. The evidence before thi s court indicates the contrary. On the first day of trial, the district judge expla ined he never looked at the last names of the jurors he excused from service prior t o voir dire . Ms. Metzger confirmed that the juror questionnaires did not req uest the jurors to list their ethnicity. There is simply no evidence that any of the jurors were excused because of their ethnicity. Since Ms. Contreras ha s not established a prima facie case of a fair-cross-section violation, her claim m ust fail.

c. Equal Protection Ms. Contreras argues the district court's pre- voir dire exclusions also8Ms. Contreras appears to argue an equal protectio n prima facie case is

established in light of the fact that there were si gnificantly more Hispanics on the original panel of jurors than there were on the pan el that remained after the district judge conducted his pre- voir dire excusals. Based upon the surnames of the excused jurors, 22 or 16.67 % of the 132 excuse d jurors were Hispanic. As for the 115 members of the jury venire, Ms. Contrer as estimates only thirteen, or 11.3 per cent, were Hispanic. Assuming we can accu rately calculate the number of Hispanics from the panel members' surnames, we d o not believe the disparity between the percentage of Hispanics excused prior t o voir dire and the percentage of Hispanics in the jury venire is statistically si gnificant. See United States v. Test , 550 F.2d 577, 587 (10th Cir. 1976) ( prima facie case of systematic exclusion not established by disparity of ten to sixteen perc ent) (relying on Swain v. Alabama , 380 U.S. 202, 205 (1965). -33- violated her equal protection rights. To establish a prima facie case of equal protection violation, Ms. Contreras must prove: (1 ) she is a member of a group capable of being singled out for discriminatory tre atment; (2) members of this group were substantially underrepresented on the ve nire; and (3) the venire was selected under a practice providing an opportunity for discrimination. United States v. Grisham , 63 F.3d 1074, 1081 (11th Cir. 1995) (citing Cunningham v. Zant , 928 F.2d 1006, 1013 (11th Cir. 1991)), cert. denied, 116 S. Ct. 798 (1996); see also Jefferson v. Morgan , 962 F.2d 1185, 1190 (6th Cir.) (citing Batson v. Kentucky , 476 U.S. 79, 95 (1986)), cert. denied, 506 U.S. 905 (1992). The defendant's failure to present evidence of the Hisp anic population in New Mexico also prevents Ms. Contreras from establishing an eq ual protection case. Without such evidence, there is simply no means by which th is court can determine whether Hispanics were substantially underrepresent ed on the jury panel. 8-34-

Moreover, it does not appear Ms. Contreras could pr ove the jury selection system provided an opportunity for discrimination. As stated, the record reveals ethnicity was not indicated on the juror questionnaires and the district judge testified he did not pay attention to the last names of the jurors h e excluded.

d. Sixth Amendment Right to Impartial Jury Ms. Contreras argues for the first time on appeal t hat the district court violated her Sixth Amendment right to an impartial jury by excusing jurors without first conducting voir dire. Although we do not ordinarily consider arguments raised for the first time on appeal, see Doelle v. Mountain States Tel. & Tel. , 872 F.2d 942, 944 n.4 (10th Cir. 1989), we can ea sily dispose of Ms. Contreras' impartial jury claim.

As noted by Ms. Contreras, " [v]oir dire plays a critical function in assuring the criminal defendant that his Sixth Amendment rig ht to an impartial jury will be honored." Rosales-Lopez v. United States , 451 U.S. 182, 188 (1981). However, we are aware of no authority holding a defendant's right to an impartial jury is violated per se by the pre- voir dire excusal of jurors. In fact, the Jury Selection and Service Act indicates the district court may pr operly exclude summoned928 U.S.C. § 1866(c) sets forth five specific reas ons a summoned juror

may be excused by the district court. They are: ( 1) undue hardship; (2) inability to render impartial service; (3) peremptory challen ge; (4) good cause shown; and (5) the court determines excusal is warranted and e xclusion is not inconsistent with other provisions of the Jury Selection and Service Act. Id. Section 1867(c) provides the court may only exclude a person under clause (5) in open court. From this statement, we can logically infer that itmay be permissible for a court to exclude a juror for hardship or bias prior to voir dire

.
-35- jurors prior to voir dire based on hardship or bias. See 28 U.S.C. § 1866(c). 9 Other circuit courts have deemed certain pre- voir dire dismissals under 28 U.S.C. § 1866(c) to be proper. See Calabrese , 942 F.2d at 221, 228 (although court improperly excused twelve jurors prior to voir dire based on their alleged knowledge of a defendant, court's pre- voir dire excusal of 155 jurors based on hardship not found erroneous); United States v. North , 910 F.2d 843, 909-10 (D.C. Cir. 1990) (pre-v oir dire excusal of jurors "for cause" not erroneous), superseded in part on other grounds , 920 F.2d 940 (D.C. Cir. 1990), and cert. denied, 500 U.S. 941 (1991).

Here, a thorough review of the excused-juror questi onnaires reveals all but perhaps two of the dismissed jurors were eligible u nder the Jury Selection and Service Act for dismissal based on undue hardship o r bias. We find the district court did not abuse its discretion in dismissing th ese jurors. With respect to the two jurors whose excusal is questionable under 28 U .S.C. § 1866(c), there is no10We need not decide the issue of whether a trial c ourt has the discretion

to dismiss a juror prior to voir dire due to a juror's acquaintance with one of the defendants. Although the Third Circuit determined a district court may not dismiss a juror prior to voir dire based on the juror's "mere acquaintance with one of the defendants," see Calabrese , 942 F.2d at 229, we note authority exists to the contrary. See Paradies , 98 F.3d at 1279-80 (trial court has discretion to excuse a juror based on acquaintance with defendantprior to voir dire ) (relying on United States v. Bailey , 468 F.2d 652, 658 (5th Cir. 1972)).

11 Ms. Contreras also alleges the district court vio lated Fed. R. Crim. P. 43 and 28 U.S.C. § 753(b) (1994) by failing to dismiss the 132 jurors in open court and in the presence of the defendants. Fed. R. Cri m. P. 43 provides, in pertinent part, "the defendant shall be present ... at every stage of the trial including the impaneling of the jury." 28 U.S.C. § 753(b) requir es the recording of "all proceedings in criminal cases had in open court." Notwithstanding Ms. Contreras' contentions to the contrary, neither Rule 43 nor 28 U.S.C. § 753(b) requires the excusal of all jurors to take place in open court i n the presence of the defendants. As stated, the Jury Selection and Service Act permi ts the pre- voir dire excusal of jurors under certain circumstances. See supraat note 9. Circuit authority is in accord. See id. Thus, the district court's dismissal of the 130 j urors who were eligible for dismissal under 28 U.S.C. § 1866(c) di d not violate Rule 43 or 28 U.S.C. § 753(b). To the extent the district court improperly dismissed two jurors in violation of these provisions, we conclude the errors were harmless to the defendants.

-36- evidence either of these jurors was dismissed on ac count of their ethnicity. It appears one juror was dismissed because she may hav e known one of the defendants, 10 and the other was dismissed after stating on her q uestionnaire that she was unable to serve for confidential reasons. Even if the trial court acted improperly in dismissing these jurors prior to voir dire , see Calabrese , 942 F.2d at 228-30, we do not believe the error was sufficie ntly egregious to have violated Ms. Contreras' right to an impartial jury. 11-37-

B. United States' Appeal The United States contends the trial court erred in departing downward from the sentencing guidelines to avoid a perceived disparity in the sentences of Ms. Contreras and her co-defendant, Paula Denogean. In response to the United States' appeal, Ms. Contreras has filed a motion to dismiss. She argues the government's notice of appeal was not timely filed. We first review Ms. Contreras' motion to dismiss to ascertain whether w e have jurisdiction to entertain the United States' appeal.

1. Motion to Dismiss Fed. R. App. P. 4(b) provides, in pertinent part, t hat "[w]hen an appeal by the government is authorized by statute, the notice of appeal must be filed in the district court within 30 days after (i) the entry o f the judgment or order appealed from or (ii) the filing of a notice of appeal by any defendant." A judgment or order is "entered" when it is entered on the crimin al docket. Fed. R. App. P. 4(b). Here, the United States appeals from the district c ourt's order granting Ms. Contreras' motion for a downward departure. The Cl erk of Court entered this order on the criminal docket on May 19, 1995. Beca use the United States filed its notice of appeal on Monday, June 19, 1995, the appe al was filed within Rule 4(b)'s thirty-day time limit. We therefore deny Ms . Contreras' motion to dismiss.-38- 2. Trial Court's Downward Departure At sentencing, the trial court found Ms. Contreras had a base offense level of 38, a criminal history category of I, and a guid eline range of 235 to 293 months. However, the court took "judicial notice t hat the guideline range applicable in this case is substantially higher tha n that applied to [co-defendant Paula Denogean] who was at least equally or maybe e ven ... more culpable than [Ms. Contreras]." To avoid an "unwarranted dispari ty of sentences," the court granted Ms. Contreras' motion for a downward departure and sentenced Ms. Contreras to 120 months based upon an adjusted base offense level of 31 and a sentencing range of 108-135 months.

The United States argues the trial court impermissi bly departed downward from the applicable sentencing guideline range. Ac cording to the United States, Ms. Contreras and Ms. Denogean are not "similarly s ituated" defendants deserving of comparable sentences.

Recently, in Koon v. United States , 116 S. Ct. 2035, 2047 (1996), the Supreme Court held an appellate court should apply an abuse of discretion standard in reviewing a district court's decision t o depart from the sentencing guidelines. The Court found "[a] district court's decision to depart from the-39-

Guidelines ... will in most cases be due substantia l deference, for it embodies the traditional exercise of discretion by a sentencing court." Id. at 2046 (citation omitted). The Court reasoned district courts have an "institutional advantage" over appellate courts in making departure decisions since they deal with such determinations on a daily basis. Id. at 2046-47. Nevertheless, the Court also concluded that "whether a factor is a permissible b asis for departure under any circumstances is a question of law, and the court o f appeals need not defer to the district court's resolution of the point." Id. at 2047. "The abuse of discretion standard includes review to determine that the disc retion was not guided by erroneous legal conclusions." Id. at 2048.

In imposing a sentence, the district court shall co nsider, inter alia , "the need to avoid unwarranted sentence disparities amon g defendants with similar records who have been found guilty of similar condu ct." 18 U.S.C. § 3553(a)(6) (1994). The court must impose a sentence within th e guideline range unless it finds "there exists an aggravating or mitigating ci rcumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines that should result in a sentence different from that described." 18 U.S.C. § 3553(b) (1994). For a dep arture from the sentencing guidelines to be proper, "'there must be something "special" about a given-40-

offender, or the accouterments of the crime committ ed, which distinguishes the case from the mine-run for that offense.'" United States v. Wogan , 938 F.2d 1446, 1448 (1st Cir.), cert. denied, 502 U.S. 969 (1991). The guidelines were enacted to "'eliminate unwarranted disparities [in sentencing] nationwide.'" United States v. Garza , 1 F.3d 1098, 1100 (10th Cir.) (quoting United States v. Joyner , 924 F.2d 454, 460 (2d Cir. 1991)), cert. denied, 510 U.S. 1018 (1993). This circuit has stated "'neither Congress nor the [Sentencing] Commission could have expected that the mere fact of a difference be tween the applicable guideline range for a defendant than that of his co-defendantwould permit a departure, either because the difference was too large or too small.'" Garza , 1 F.3d at 1100 (quoting Joyner , 924 F.2d at 460.)

In Garza , the district court departed downward from defendant Ray Garza's guideline range based upon a disparity in the poten tial sentence of Mr. Garza and the sentence of his co-defendant. 1 F.3d at 1099. Noting Mr. Garza and his codefendant had similar records and were charged withsimilar conduct, the district court concluded "the great disparity between the tw o sentences warranted equalization." Id. at 1100. On appeal, we recognized our previous ho lding that "'[w]hile similar offenders engaged in similar cond uct should be sentenced equivalently, disparate sentences are allowed where the disparity is explicable by-41-

the facts on the record.'" Id. at 1101 (quoting United States v. Goddard, 929 F.2d 546, 550 (10th Cir. 1991)). We then analyzed wheth er Mr. Garza and his codefendant were, in fact, similarly situated defenda nts. Garza , 1 F.3d at 1101. Concluding there was "no evidence of similarity in the participation, culpability, criminality, and conduct of Garza and [his co-defen dant]," we reversed the district court's decision to depart downward. Id.

Here, as in Garza , we can determine whether the trial court abused i ts discretion in departing from the guidelines withoutdeciding whether disparity in sentences between co-defendants is an appropriate b asis for departure. The record reveals Ms. Contreras went to trial and was convicted on four counts -- conspiracy to possess with intent to distribute in violation of 21 U.S.C.A. § 846, investment of illicit drug profits in violation of 21 U.S.C.A. § 854, and two counts of money laundering in violation of 18 U.S.C .A. § 1956(a)(1)(B)(i). Ms. Denogean, on the other hand, accepted responsibility for her criminal conduct and pled guilty to a lesser charge of possession with i ntent to distribute marijuana. Co-defendants who are charged with and convicted of different offenses are not "similarly situated" with respect to the sentencing guidelines. United States v. Butt , 955 F.2d 77, 90 (1st Cir. 1992). Here, Ms. Contr eras and Ms. Denogean are not "similarly situated." Ms. Contreras was convic ted by a jury of four separate-42-

offenses, while Ms. Denogean pled guilty to one off ense. Given their distinct situations, we conclude the trial court abused its discretion in concluding an "unwarranted disparity" existed justifying downwarddeparture.

In determining whether Ms. Contreras and Ms. Denoge an are "similarly situated," Ms. Contreras appears to argue the courtshould focus on their respective roles in all of the offenses rather than the fact Ms. Denogean pled guilty to a lesser offense and Ms. Contreras was co nvicted by a jury on four counts. According to Ms. Contreras, she was "very willing" to plead guilty prior to trial and receive a five year sentence. However , she alleges the United States would not offer her a plea agreement because her father (Mr. Aguirre) would not assent to a plea bargain.

Although Ms. Contreras may have been as deserving o f a plea bargain as Ms. Denogean, we must remind Ms. Contreras that ent ering into plea bargains is within the United States Attorney's prosecutorial d iscretion. "[S]ubstituting the judge's view of the proper general prosecutorial po licy for that of the prosecutor [does not constitute] a valid ground for departure from the guideline range." United States v. Stanley , 928 F.2d 575, 583 (2d Cir.), cert. denied, 502 U.S. 845 (1991) (trial judge erred in departing downward bec ause of disparity in sentence-43-

between defendants who engaged in similar conduct b ut were charged with different offenses as result of prosecutor's plea b argaining decisions). In other words, a trial judge may not reduce a defendant's s entence on the mere basis that a co-defendant who engaged in similar conduct but a greed to plead guilty to lesser charges received a lighter sentence. Any rule to t he contrary would invade the United States Attorney's broad prosecutorial discre tion. Moreover, "allowing a defendant's sentence to be reduced on account of a codefendant's plea bargain may tend to discourage the government from offering plea bargains in cases involving multiple defendants." United States v. Mejia , 953 F.2d 461, 468 (9th Cir.), cert. denied, 504 U.S. 926 (1992). Such a result should be avo ided in the interest of judicial economy. Id. In the case at bar, we therefore conclude the trial judge erred in reducing Ms. Contreras' senten ce based upon the sentence of a co-defendant who pled guilty to a lesser charge.

IV. CONCLUSION For the foregoing reasons, we REVERSE the district court's decision to depart downward, and we REMAND this case to the district court for resentencing consistent with this opinion. We AFFIRM the judgment of the district court in all other respects.