* Pursuant to 5TH CIR. R. 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that this opinion should not be published and is not precedent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 5TH CIR.

R. 47.5.4.

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 97-40542

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

CARLOS OTERO, a.k.a. CHARLIE, a.k.a. CHARLIE OTERO;

JUAN RODRIGUEZ, a.k.a. JOHNNY RODRIGUEZ, a.k.a. JOHNNY;

GUSTAVO B. ANDRADE; and 

AUGUSTIN JAIME OBREGON-GONZALEZ, a.k.a. JAIME OBREGON,

Defendants-Appellants,

Appeals from the United States District Court

for the Southern District of Texas

(B-96-CR-337)

March 5, 1999

Before KING, Chief Judge, JONES, and SMITH, Circuit Judges:

PER CURIAM:*

Carlos Otero, Juan Rodriguez, Gustavo Andrade, and

Augustin Jaime Obregon-Gonzalez were convicted by a jury on various

charges relating to the importation and possession of marijuana.

On appeal, the appellants have raised numerous issues in connection

with their convictions. Finding no error in the pretrial, trial,

or sentencing proceedings, we affirm.
 

1 Initially, the parties had planned to pick up the August

29 load at Rodriguez’s grocery store. These plans ultimately fell

through, however, and the August 29 load was stowed on board the

van at a house in El Ranchito, Texas.

2

I. FACTUAL AND PROCEDURAL HISTORY

A. The Conspiracy

In August 1996, the appellants contacted a confidential

informant for the United States Customs Service to arrange for the

transportation of marijuana between the Rio Grande Valley of Texas

and Chicago, Illinois. After agreeing with Andrade and Hilario

Obregon to transport the marijuana for $50,000, the informant

scheduled an appropriate date to pick up the shipment.

From August 29 to September 2, 1996, the informant, an

undercover officer, and the appellants worked to gather, load, and

store the marijuana shipment. On August 29, Obregon-Gonzales and

Obregon assisted the informant in loading marijuana into a van

(“the August 29 load”).1 On August 30, the undercover officer

drove the van to Rodriguez’s grocery store where he met ObregonGonzales, Andrade, and Rodriguez. More marijuana was loaded in the

van (“the August 30 load”), and the undercover officer was given

money orders in the amount of $5,350 -- a down payment on the

$50,000. On August 31, the undercover officer met with ObregonGonzales, Andrade, and Rodriguez to receive the final shipment of

marijuana. To their chagrin, the United States Border Patrol

seized this shipment as it was crossing the border from Mexico.

On September 2, Andrade, Obregon, and Obregon-Gonzales

met with the undercover officer at a warehouse where the marijuana
 

2 Obregon was indicted with the appellants; however, he

died prior to trial.

3

had been stored. An additional $6,000 was delivered, and the

parties argued regarding the total amount of marijuana included in

the shipment. Later that day, the undercover officer met with

Andrade, received an additional $3,000 in money orders, and

finalized plans for transporting the marijuana, including

instructions for delivering the contraband to “Charlie” in Chicago.

Following the transportation of the marijuana to Chicago,

the undercover officer contacted Charlie, a.k.a. Otero. The

undercover officer discussed delivery arrangements with Otero and

Andrade, who had been accompanied to Chicago by Obregon-Gonzales.

Final payment was arranged through the informant by wiring $25,000

from Mexico to a bank in Brownsville, Texas. After the informant

confirmed receipt of the money on September 9, the undercover

officer delivered the marijuana to Andrade and Otero at a hotel.

Andrade and Otero left with the marijuana in a Ryder truck. An

Illinois state trooper working with the Customs Service stopped the

vehicle. When searched, the marijuana was found in the cargo bay.

B. The Indictment and Convictions

Rodriguez, Andrade, Otero, Obregon-Gonzales, and Obregon2

were indicted by a federal grand jury for conspiracy to import in

excess of 100 kilograms of marijuana, 21 U.S.C. §§ 952(a),

960(b)(2), 963; conspiracy to possess with intent to distribute in

excess of 100 kilograms of marijuana, 21 U.S.C. §§ 841(a)(1),

841(b)(1)(B), 846; and conspiracy to launder money, 18 U.S.C. §
 

3 In some cases, more than one of the appellants raises the

arguments we address. It is unnecessary, however, to specify the

proponent of each of the issues, and we will respond to their

arguments together.

4

1956(h). Rodriguez, Andrade, Obregon-Gonzales, and Obregon were

also charged with possession, and aiding and abetting possession,

with intent to distribute in excess of 100 kilograms of marijuana,

21 U.S.C. §§ 841(a)(1), 841(b)(1)(B), and 18 U.S.C. § 2.

The defendants were tried together. Otero filed a motion

to sever, which the trial court denied. Rodriguez’s oral motion

for severance, made during pretrial proceedings, was also denied.

Neither the record nor trial transcripts indicate that Andrade

filed a pretrial motion to sever. The appellants timely appealed

their convictions.

II. ANALYSIS3

A. Sufficiency of the Evidence

Viewed in the light most favorable to the verdict, the

evidence was sufficient to support the convictions of ObregonGonzalez, Otero, and Rodriguez for conspiracy to import marijuana,

conspiracy to possess with intent to distribute marijuana, and

possession with intent to distribute marijuana. See United States

v. Sanchez, 961 F.2d 1169, 1173 (5th Cir. 1992) (explaining

standard for sufficiency of evidence review). In fact, factual

support for the convictions is sprinkled liberally throughout the

record.

First, the sole basis for Obregon-Gonzalez’s sufficiency

challenge (i.e., that he lacked the requisite intent because he was
 

4 A portion of the drugs intended to be loaded at

Rodriguez’s grocery store was seized by the Border Patrol.

Moreover, on September 2, 1996, Andrade discussed the extent of the

conspiracy’s operation in Mexico with the undercover officer.

 

5 Most of the loading was accomplished, or was meant to be

accomplished, at Rodriguez’s grocery store. This evidence not only

supports the appellants’ conspiracy convictions, but it buttresses

Rodriguez’s conviction for possession of the August 29 load with

intent to distribute. Though the original plan to transfer the

August 29 load at the grocery store failed, Rodriguez’s attachment

to this load was revealed when Obregon-Gonzalez told the undercover

officer that Johnny, a.k.a. Rodriguez, calculated the entire load

at 1300 pounds of marijuana, the approximate total of both the

August 29 and 30 loads.

 

6 Otero was clearly linked to each of the narcotics

conspiracies, including the conspiracy to import, as the Chicago

contact for the undercover officer.

5

acting as an agent of the government) was heard by the jury and

rejected. We will not upset this credibility determination on

appeal. See United States v. Kelley, 140 F.3d 596, 607 (5th Cir.

1998) (“We will not supplant the jury’s determination of

credibility with that of our own.” (internal punctuation omitted)).

The actions of Otero and Rodriguez, with respect to the

narcotics conspiracies, showed a clear concert of action from which

a jury could infer the existence of a conspiracy for each count.

See United States v. Cardenas, 9 F.3d 1139, 1157 (5th Cir. 1993)

(“An agreement to violate narcotics laws may be inferred from

‘concert of action.’”). Direct and circumstantial evidence linked

each of the appellants to the entire conspiracy from the

importation stage,4 to the loading of the drugs,5 to delivery of the

drugs to Chicago,6 and to payment and transportation following

delivery. Under these circumstances a jury could have readily

found that each of the appellants conspired to import marijuana
 

7 18 U.S.C. § 1956(a)(1)(A)(i) defines the crime of money

laundering in the following fashion,

Whoever, knowing that the property involved in a

financial transaction represents the proceeds of some form of

unlawful activity, conducts . . . a financial transaction which in

fact involves the proceeds of specified unlawful activity -- with

the intent to promote the carrying on of specified unlawful

activity . . . . 

18 U.S.C. § 1956(h) makes a conspiracy to commit an offense under

§ 1956(a)(1)(A)(i) a crime.

6

from Mexico and then conspired to possess the drug with intent to

distribute. This evidence likewise supported the appellants’

convictions for possession with intent to distribute.

The conspiracy to launder money requires a more detailed

analysis, however. In its brief, the government has argued that

Rodriguez’s conspiracy conviction must be sustained because the

appellants paid the informant and undercover officer to transport

marijuana. This argument substantially overstates the reach of the

money laundering statute. In order to conspire to launder money

under 18 U.S.C. § 1956(a)(1)(A)(i), an individual must enter into

an agreement whose ultimate purpose is to “promote the carrying on

of specified unlawful activity” by conducting a financial

transaction using property which involves the known proceeds of

specified unlawful activity.7 Clearly, the mere agreement to pay

the informant and undercover officer would not constitute a

conspiracy to launder money absent proof that the conspirators

contemplated that the “proceeds” used to conduct the transaction

would be derived from unlawful activity. In fact, Rodriguez

attempts to make this very argument in his brief.
7

Rodriguez’s conviction for conspiring to launder money

rests, however, on sufficient proof on a narrower basis. The

evidence submitted to the jury demonstrated that the appellants

were engaged in a broad conspiracy to import marijuana from Mexico

to Chicago. In order to promote the narcotics conspiracy, the

appellants engaged the services of the informant and the undercover

officer to transport the marijuana from Texas to Illinois. To pay

for these services, the appellants purchased money orders in

Chicago and wired funds from Mexico to Brownsville, Texas. As the

government explained at oral argument and in its closing jury

argument, a jury could find based on circumstantial evidence that

the appellants had used the proceeds of unlawful activities

occurring in Chicago and Mexico (i.e., funds procured through

participation in felony narcotics violations) to promote an

unlawful activity (i.e., conspiring to import and distribute

marijuana) by conducting a financial transaction (i.e., purchasing

money orders and wiring funds). Rodriguez knowingly participated

in a conspiracy that included money laundering to further the

defendants’ importation scheme. See United States v. Garcia

Abrego, 141 F.3d 142, 163 (5th Cir. 1998) (defining elements of

money laundering conspiracy) (citing United States v. Conley, 37

F.3d 970, 976-77 (3d Cir. 1994)).

B. Motions to Sever

This court reviews the denial of a motion to sever for an

abuse of discretion. See United States v. Neal, 27 F.3d 1035, 1045

(5th Cir. 1994). In conducting this examination, the court must
 

8 Otero asserts in a footnote to his brief that severance

was also warranted to avoid presenting a case too factually and

legally complex for a jury to comprehend. The evidence presented,

however, was similar to that in any multi-defendant, multi-count

drug conspiracy indictment -- severance was not required based on

alleged complexity.

8

consider the general rule “that persons indicted together should be

tried together, especially in conspiracy cases.” Id. (citing

United States v. Pofahl, 990 F.2d 1456, 1483 (5th Cir. 1993)). A

severance should be granted “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.” Zafiro v. United States, 506 U.S. 534,

539, 113 S. Ct. 933, 938 (1993); see also United States v.

Buckhalter, 986 F.2d 875, 876 (5th Cir. 1993) (requiring severance

only when specific, compelling prejudice outweighs interest in

judicial economy).

1. Otero

The trial court did not abuse its discretion in denying

Otero’s motion to sever. Otero principally argued that severance

was warranted in this case because a joint trial would deprive him

of exculpatory evidence.8 Otero maintained that Andrade would

waive his Fifth Amendment rights at Otero’s severed trial and would

testify that Otero had no knowledge of the conspiracy. During the

pretrial conference, however, Andrade confirmed that he would not

waive his Fifth Amendment rights. Based on this refusal, the trial

court denied Otero’s motion to sever. Nonetheless, the district

court admitted a statement into evidence, allegedly written by
 

9 The following perfunctory colloquy appears in pretrial

proceedings:

9

Andrade, which proclaimed that Otero was not involved in the

conspiracy. In this way, Otero was neither deprived of Andrade’s

testimony nor denied admission of potentially exculpatory evidence.

Otero was not entitled to a separate trial.

2. Rodriguez and Andrade

This court will not review the merits of Rodriguez’s and

Andrade’s arguments. The record excerpts filed by Andrade do not

indicate that a motion to sever was filed on his behalf in the

trial court. Thus, Andrade waived his right to pursue severance.

See United States v. Palmer, 122 F.3d 215, 220 (5th Cir. 1997)

(citing United States v. Castillo, 77 F.3d 1480, 1490 n.19 (5th

Cir. 1996)). 

Rodriguez has failed to point out any properly filed

motion to sever in the record, and the docket sheet does not

indicate that a written motion to sever was filed, although it

identifies the government’s response to such a motion. Based on

the deficiency in the record, attributable to Rodriguez, we need

not consider this issue. See United States v. Hinojosa, 958 F.2d

624, 632-33 (5th Cir. 1992). Moreover, based on the government’s

trial briefing and the transcripts of pretrial proceedings, it

appears that Rodriguez changed the basis for his motion to sever on

appeal -- arguing below that severance of defendants was required

under Fed. R. Crim. P. 14, yet maintaining on appeal that severance

of offenses was necessary pursuant to Fed. R. Crim. P. 8(a).9
Rodriguez’s Attorney: I have a

motion to

sever,

your

honor.

[M]y only

basis for

that is

there are

three

defendants

in this

case. * *

*

The Court: It will be

prejudicia

l is what

you are

saying?

Rodriguez’s Attorney: Yes,

your

honor

.

The Court: Any other grounds?

Rodriguez’s Attorney: No, your honor.

The Court: It will be denied.

This exchange indicates that Rodriguez in fact relied on Rule 14 as

the basis for his pretrial motion to sever. 

If this discussion constitutes the sole basis for his

motion, Rodriguez failed to proffer sufficient evidence to

demonstrate a compelling and specific justification for severance

under Rule 14. Accordingly, the record would not support a finding

that the trial court abused its discretion. Moreover, plain error

review of Rodriguez’s Rule 8(a) argument also fails to persuade the

court that severance was required. The charged offenses clearly

formed “two or more acts or transactions . . . constituting parts

of a common scheme” and, thus, were joined properly in the

indictment. Fed. R. Crim. P. 8(a).

10

Under all of these circumstances, Rodriguez waived the severance

grounds he now asserts. See United States v. Brown, 16 F.3d 423,

428-29 (D.C. Cir. 1994) (finding waiver of Rule 8 relief when
 

10 It follows from this discussion that we take no position

on whether the tape recordings violated Illinois law, as appellants

contend.

11

appellant failed to assert the issue pretrial, though proper Rule

14 motion had been made).

C. Motion to Suppress

A federal agent may not prosecute a defendant by using

evidence obtained by state officers in violation of the federal

Constitution. See Elkins v. United States, 364 U.S. 206, 223-24,

80 S. Ct. 1437, 1447 (1960) (rejecting “silver platter” doctrine);

see also United States v. Eastland, 989 F.2d 760, 765-66 (5th Cir.

1993). In Eastland, this court refused to extend the Elkins

principle to evidence obtained in violation of a state statute or

constitution, so long as the seizure did not violate the

Constitution. See Eastland, 989 F.2d at 765-66. Under the Fourth

Amendment, a conversation may be recorded as long as one party to

the conversation has consented to the taping. See United States v.

White, 401 U.S. 745, 749, 91 S. Ct. 1122, 1125 (1971); United

States v. Gorel, 622 F.2d 100, 106 (5th Cir. 1979). The recordings

in this case were each made with the consent of a participant, the

undercover officer or the informant, and, thus, did not violate the

Constitution.10 Accordingly, the trial court did not err by

admitting the tapes or by refusing to instruct the jury on

inapplicable Illinois law. See Eastland, 989 F.2d at 765-66.

D. Admission of Andrade’s Address Books

The admission of Andrade’s address books is reviewed for

an abuse of discretion. See United States v. Brito, 136 F.3d 397,
12

412 (5th Cir. 1998). Andrade’s counsel objected to the admission

of the address books for lack of foundation and hearsay. In

response to the objections, the trial court asked the Illinois

state trooper when and where the evidence had been seized. The

officer responded that the address books were taken from Andrade

when he was arrested. Thus, the trial court could have concluded,

based on the seizure of the address books from Andrade, that the

books were his property and that the writing therein was his.

Under these circumstances, the address books were properly

admissible under the exception to the hearsay rule for admissions

of a party opponent. See Fed. R. Evid. 801(d)(2)(A). Even if the

address books were not admissible, the ruling would amount to

harmless error, as substantial record evidence of Andrade’s guilt

existed without the address books. See United States v. Gadison,

8 F.3d 186, 192 (5th Cir. 1993).

E. Improper Comments During Closing Argument

During the government’s closing argument, a prosecutor

commented on an objection Andrade’s attorney had made to the

admission of a police report. Andrade objected to the statement.

The objection was overruled and counsel’s request to instruct the

jury that the prosecutor’s remark constituted an attack on the

office of defense counsel was denied. The district court, however,

did admonish the jurors, “Remember my instructions. You are to

consider the evidence that has been admitted during the course of

the trial. That’s a legal matter before me.” Based on the trial

court’s curative instruction, the limited prejudicial effect the
13

lone statement may have had on the jury, and the substantial

evidence of Andrade’s guilt, the trial court’s decision not to

offer a more detailed curative instruction and not to grant a

mistrial does not cast serious doubt on the jury’s verdict. See

United States v. Andrews, 22 F.3d 1328, 1341 (5th Cir. 1994)

(reversing verdict only proper when prosecutor’s remarks “cast

serious doubts on the correctness of the jury’s verdict”); see also

United States v. Anchondo-Sandoval, 910 F.2d 1234, 1237 (5th Cir.

1990) (setting forth factors to be considered).

F. The Jury Instructions

Andrade maintains that a more specific perjury

instruction should have been given in light of the undercover

officer’s testimony that it would be acceptable to deceive in order

to garner a conviction. See, e.g., United States v. Partin, 493

F.2d 750, 760-62 (5th Cir. 1974) (requiring specific perjury

instruction when evidence showed that witnesses essential to the

government’s case were convicted felons and admitted perjurers).

The trial court’s admonitions to the jury appropriately instructed

the jurors as to their role in weighing the credibility of a

witness’s testimony, and the instructions correctly informed the

jury that it could believe any or all of a witness’s testimony.

Andrade’s argument, moreover, borders on the frivolous.

The undercover officer in this case was not a felon or perjurer.

In fact, his remarks concerning the propriety of deception arose in

the context of several questions about his role in the undercover

operation, not with respect to his testimony. The trial court’s
14

substantively correct charge to the jury did not deprive Andrade of

any defense or argument, and thus, the trial court did not err in

rejecting Andrade’s proffered instructions. See United States v.

Pipkin, 114 F.3d 528, 535 (5th Cir. 1997); see also United States

v. Asibor, 109 F.3d 1023, 1034 (5th Cir. 1997).

Next, Andrade challenges the trial court’s alleged

failure to instruct the jury that a mere buyer/seller relationship

was insufficient to support a conspiracy conviction and the court’s

refusal to give the jurors a copy of the written charge for use

during deliberations. So long as the general conspiracy charge

accurately reflects the law, this court does not require a specific

instruction regarding the insufficiency of a buyer/seller

relationship. See Asibor, 109 F.3d at 1034-35 (citing United

States v. Maseratti, 1 F.3d 330, 336 (5th Cir. 1993)). As such,

the trial court did not err by refusing to give the proffered

instruction. Moreover, the court did not abuse its discretion by

failing to give a written copy of the charge to jurors for use

during deliberations. Cf. United States v. Sotelo, 97 F.3d 782,

787-88, 792-93 (5th Cir. 1996) (finding trial court did not abuse

discretion by refusing to give jurors a copy of written charge in

multi-defendant, multi-charge drug conspiracy indictment).

G. Sentencing

1. Rodriguez

Rodriguez maintains that the district court committed

clear error at sentencing by attributing 1,200 pounds of marijuana

to the conspiracy. See United States v. Carreon, 11 F.3d 1225,
15

1230, 1231 n.17 (5th Cir. 1994) (factual findings regarding drug

amounts reviewed for clear error). Although Rodriguez argues that

only the August 30 load of marijuana should be attributed to him

for sentencing purposes, the testimony of the confidential

informant clearly shows that Rodriguez’s involvement in the

conspiracy extended to the August 29 load -- the initial delivery

point for the August 29 load was Rodriguez’s grocery store.

Moreover, Rodriguez’s participation in the entire importation and

possession conspiracy is readily apparent from the record. Thus,

the trial court did not clearly err when it attributed the entire

1,200 pounds of marijuana to Rodriguez.

2. Andrade

The trial court’s finding that Andrade played a

leadership role in the conspiracy under U.S. Sentencing Guidelines

Manual § 3B1.1(c) is also subject to clear error review. See

United States v. Rivas, 99 F.3d 170, 176 (5th Cir. 1996). Andrade

negotiated a price for the transport, developed plans for loading

and delivering the marijuana, paid deposits on the $50,000 fee,

and, ultimately, accepted delivery of the marijuana in Chicago.

Based on his dominant position in the conspiracy at every stage of

the crime, the trial court’s two point adjustment of Andrade’s

sentence level did not constitute clear error.
16

III. CONCLUSION

For the foregoing reasons, this court affirms the

convictions and sentences of each of the appellants.

AFFIRMED.