1 District Judge for the Western District of Louisiana,

sitting by designation.

UNITED STATES COURT OF APPEAL

for the Fifth Circuit

____________________________________

No. 92-7685

____________________________________

UNITED STATES OF AMERICA,

 Plaintiff-Appellee,

VERSUS

FRANCISCO CASTANEDA-CANTU, and

JOSE ANTONIO TIQUET-RIVERA

 

 

 Defendants-Appellants.

______________________________________________________________

Appeals from the United States District Court

for the Southern District of Texas

______________________________________________________________

(May 4, 1994)

Before KING and WEINER, Circuit Judges, and DOHERTY,1 District

Judge.

PER CURIAM:

Procedural History

On March 10, l992, a grand jury returned a twenty-five (25)

count indictment against appellants, Francisco Castaneda-Cantu

("Castaneda") and Jose Antonio Tiquet-Rivera ("Tiquet"), and

thirteen (13) others in the Houston Division of the United States

District Court for the Southern District of Texas. The sixtyfive (65) page, twenty-five (25) count indictment stemmed from a

government-sponsored "sting" operation involving the laundering
2

of funds through Mexico money exchange houses known as "Casas de

Cambio" with funds represented by the federal law enforcement

officers to have been proceeds of unlawful narcotics and firearms

trafficking.

In Count One, all defendants were charged with conspiring to

launder money in violation of 18 U.S.C. § 371. Castaneda was

specifically charged in Counts Two, Three, Five, Seven through

Thirteen, Fifteen, Sixteen and Eighteen with money laundering in

violation of §§ 1956(a)(3) and (2). In Counts Twenty and Twentyone Castaneda was charged with failure to file Reports of

International Transportation of Currency or Monetary Instruments

("CMIR") in violation of Title 31 U.S.C. § 5316(a)(l)(A). Tiquet

was specifically charged in Counts Two, Three, Four, Six,

Fourteen and Seventeen with money laundering in violation of 18

U.S.C. §§ 1956(a)(3) and (2). In Count Twenty-five, Tiquet was

charged with possessing Methaqualone with the intent to

distribute in violation of 21 U.S.C. §§ 841(a)(1) and (b)(l)(C). 

Prior to trial Tiquet pled guilty only to Count Twenty-five,

possessing Methaqualone with intent to distribute. 

Although the Grand Jury returned the Indictment in the

Houston Division of the Southern District of Texas, the district

court found that none of the defendants, government witnesses or

events alleged in the indictment had any relation to the Houston

Division of the court and transferred the case on a joint defense
3

motion to the McAllen Division. The district judge in McAllen,

Texas recused himself from hearing the case and it was

subsequently transferred to the Corpus Christi Division of the

court. The case was finally transferred to the Brownsville

Division of the court, the Honorable Filemon B. Vela presiding,

where it was tried to a jury. Trial began on July 8, l992 and

continued through July 31, l992. On July 29, l992, the jury

convicted Castaneda of fourteen (14) of the sixteen (16) counts

in which he was charged, including Count One - the conspiracy

charge, and acquitted him of the two (2) counts of failing to

file Reports of International Transportation of Currency or

Monetary Instruments ("CMIR") pursuant to Title 31 U.S.C. §

5316(a)(l)(A). The jury convicted Tiquet of all the remaining

counts in which he was charged, including Count One - the

conspiracy charge. 

On October 9, l992, the district court sentenced Castaneda

to 60 months on Count One and 108 months on each of the other

counts, all to run concurrently, a three (3) year term of

supervised release on each count, to run concurrently, and

$700.00 in special assessments. The court also sentenced Tiquet

to 60 months on Count One and 120 months on each of the other

counts, all sentences to run concurrently, a three (3) year term

of supervised release on each count, to run concurrently, and

$400.00 in special assessments.
4

Facts

The charges of money laundering against Francisco CastanedaCantu ("Castaneda") and Jose Antonio Tiquet-Rivera ("Tiquet")

were the result of an investigation lasting approximately two (2)

years by the United States Custom Service in McAllen, Texas of

the importation of large sums of U.S. currency into the United

States from Mexico by the representatives of Casa de Cambio

Colon. In July of l989, Special Agent Vincent Iglio of the

United States Customs Service noticed the Casa de Cambio Colon

was transporting millions of U.S. dollars on a weekly basis into

McAllen, Texas via the McAllen airport and was completing the

required Report of International Transportation of Currency or

Monetary Instruments ("CMIR") which reflected that the couriers

carried money on behalf of Casa de Cambio Colon. The money was

then transferred to various accounts across the United States. 

Although businesses such as Casa de Cambio's ostensibly made

their profit from trading on the exchange rate between the United

States dollar and the Mexican peso, the agents suspected, based

on the volume of cash, that the money actually was booty which

had been smuggled into Mexico from an illegal activity in the

United States and was being "laundered" by the Casa de Cambio

Colon to appear to be the proceeds of trading on the dollar/peso

exchange rate. 

The Customs Service consequently initiated a complex and
5

costly undercover investigation into the importation of the U.S.

currency. Two (2) Custom Service undercover agents were involved

in the operation. The first, Ventura Cerda, known undercover as

Vincente Serna, posed as a drug and weapons trafficker to see

whether the Casa de Cambio Colon would agree to launder money. 

Special Agent J.J. Munoz, known undercover as Jessie Martinez,

joined Agent Cerda in the operation.

Agents Cerda and Munoz set up an undercover operation in

which they established three (3) businesses which appeared on the

surface to be legitimate. The three (3) were Choza Rica Exports,

Archer Enterprises and Impex Enterprises. Bank accounts at First

City Texas Bank, McAllen, Texas and Barkley's Bank U.K. London,

England were opened. Agent Cerda testified that he played the

role of a drug and weapons smuggler, posing as a representative

of a criminal organization that needed to launder the proceeds of

its illegal narcotics trafficking and weapons smuggling.

On October 26, l989, Special Agent Ventura Cerda telephoned

the office of Casa de Cambio Colon in Monterrey, Mexico and spoke

to Rogelio Rodriguez, the owner of the Casa de Cambio Colon,

regarding their money laundering services. Subsequently, Agent

Cerda discussed the possibility of money laundering with

Rodriguez. Although Rodriguez was hesitant to become involved,

he eventually agreed to make a referral to another person who

could take care of the "dirty money." Rodriguez also inquired
6

what percentage Agent Cerda was willing to pay for the laundering

service. 

On February 4, l99l, Agent Cerda received a telephone call

from Francisco Castaneda-Cantu, who identified himself as an

employee of the Casa de Cambio Libra in Monterrey. Castaneda

indicated that Rodriguez had instructed him to call Agent Cerda

concerning Cerda's money problems. This led to a meeting in Rio

Grande City, Texas, on February 5, l99l, between Agent Cerda,

Castaneda, Tiquet and Gonzalez (also a defendant). At this

meeting, Tiquet identified himself as the owner of Casa de Cambio

Libra while Gonzalez represented himself to be the attorney for

the Casa de Cambio Libra. A deal was struck wherein the three

(3) agreed to launder money for Agent Cerda at the following

commission rates: 5% for $50,000.00 to $75,000.00, 4% for over

$75,000.00 to $150,000.00 and 3% for over $150,000.00. Agent

Cerda testified that he told the trio the monies were the

proceeds of illegal narcotics trafficking and weapons smuggling. 

Shortly after this meeting, Rodriguez telephoned Cerda to confirm

he referred Tiquet, Castaneda and Gonzales and to vouch for their

abilities.

On February 19, l99l, the first in a series of money

laundering transactions began. On that day, Agent Cerda met with

Tiquet and Hector Espinoza, also a defendant, at Pendergrass

Electronics in McAllen, Texas. The money was laundered under the
7

following plan: Tiquet and Espinoza met Agent Cerda at a

location in McAllen, Texas, received the U.S. currency, and

telephoned Castaneda in Mexico to confirm the receipt of the

money. Castaneda then wire transferred an amount of money equal

to the amount received by Tiquet and Espinoza from the accounts

of the Casa de Cambio Colon in the First City Bank of Texas, to

undercover accounts given by Agent Cerda. Tiquet and Espinoza

were then to either smuggle the cash received from Agent Cerda

across the Mexican border or deposit it into the accounts of Casa

de Cambio Colon at the First City Texas Bank. Castaneda

generated a fictitious receipt for the money which indicated that

the wire transferred money originated from a pesos for dollars

exchange in Monterrey, Mexico. This scheme created a paper trail

that made it appear as if the money going into Agent Cerda's

account originated from a pesos for dollars exchange in

Monterrey, Mexico rather than from illegal activities in the

United States. For these services Tiquet, Castaneda and Espinoza

charged Agent Cerda a fee as per the rates described at the

initial meeting. 

From February 19, l99l until February 13, l992, a number of

transactions, which were detailed in the indictment, took place

involving Tiquet and Castaneda as well as the other 13 defendants

named in the indictment. These transactions took place in "out

of the way" locations and Tiquet and Castaneda received a

substantial fee for each money laundering transaction based on
 

2 Although unclear after a thorough review of the record

and briefs filed by each defendant, this court will assume for

purposes of this appeal that both defendants' motions pursuant to

Fed. R. Civ. Pro. 29(b) on sufficiency of the evidence applied

only to the substantive counts charged, and not to Count One

based on 18 U.S.C. § 371, conspiracy. 

8

the amount of money laundered. Defendants, Castaneda and Tiquet,

were subsequently indicted by the grand jury in a twenty-five

(25) count indictment on March 10, l992 and subsequently

convicted on July 29, l992 after a nineteen (19) day jury trial.

Castaneda and Tiquet both moved for a Judgment of Acquittal

at trial pursuant to Rule 29(b)2 of the Federal Rules of Criminal

Procedure, at both the close of the government's case and at the

conclusion of all evidence. Their motions were based upon the

government's alleged failure to prove beyond a reasonable doubt

that Castaneda or Tiquet knew or believed that the money being

laundered was the proceeds of illegal drug or weapons trafficking

sales. Each argued that he believed the money in question came

from a variety of sources including "the exchange of furniture,

cars, warehouse, and all" the sale of televisions, Mayan figures

and artifacts from Guatemala, stolen tires, heavy equipment, used

telephones and "refrigerators and those machines." The court

denied both motions pursuant to FRCP 29(b) and the case was

subsequently presented to the jury who found sufficient evidence

to convict both Castaneda and Tiquet on multiple counts.
9

Discussion

Castaneda and Tiquet appeal the decision of the jury in this

case, as well as certain rulings made by the district court, and

appeal the sentences that the district court imposed. We will

address each argument that Castaneda and Tiquet raise on appeal.

 Castaneda and Tiquet first contend that the district court

erred in failing to grant their FRCP 29(b) motion, arguing the

government presented insufficient evidence to prove beyond a

reasonable doubt that Castaneda and Tiquet knew the money being

laundered was the product of specified unlawful activity, in this

case, illegal drug or weapons sales. This Court's standard of

review of the district court's denial for a Motion for Judgment

for Acquittal, pursuant to Federal Rule of Criminal Procedure

29(b), is de novo. United States v. Restrepo, 994 F.2d 173, 182

(5th Cir. l993). "The well-established standard in the circuit

for reviewing a conviction allegedly based on insufficient

evidence is whether a reasonable jury could find that the

evidence establishes the guilt of the defendant beyond a

reasonable doubt." Id. We review the evidence in the light most

favorable to the government to determine whether the government

proved all elements of the crimes alleged beyond a reasonable

doubt. United States v. Skillern, 947 F.2d 1268, 1273 (5th Cir.

l99l), cert denied 112 S.Ct. 1509 (l992). In such a review, the

evidence does not have to exclude every reasonable hypothesis of
10

innocence. United States v. Leed, 98l F.2d 202, 205 (5th Cir.

1993), cert denied 113 S.Ct. 2971 (l993). 

To convict the defendants of a violation of 18 U.S.C.

§ 1956(a)(3) as charged in Counts Two - Nineteen, requires that

the government prove beyond a reasonable doubt that the

defendants: (l) conducted or attempted to conduct a financial

transaction; (2) involving property represented by a law

enforcement agent to be the proceeds of specified unlawful

activity; (3) with the intent to conceal or disguise the nature,

location, source, ownership, or control of the property; and (4) 

believed the proceeds were the product of a specified unlawful

activity. United States v. Fuller, 974 F.2d 1474, 1478 (5th Cir.

l992) cert denied U.S. , 114 S.Ct. 112 (l993); United

States v. Arditti, 955 F.2d 33l, 339 (5th Cir.) cert denied, 

U.S. , 113 S.Ct. 599 (l992). Pursuant to §§ 1956(c)(7)(A) and

(D) both drug trafficking and weapons smuggling are specified

unlawful activities.

Tiquet and Castaneda challenge the sufficiency of the

evidence with regard to the second and fourth elements of 18

U.S.C. § 1956(a)(3), which are logically inter-related. More

specifically, defendants challenge whether the laundered money

was represented by the agents to be the proceeds of specified

unlawful activity and whether both defendants believed the

proceeds were from those sources. 
11

The only issue for review before this Court on this

challenge made by defendants is whether the government introduced

sufficient evidence to prove that Agent Cerda represented to

defendants, and that defendants believed the funds they were

laundering were the proceeds of a specified unlawful activity. 

The specified unlawful activity involved in this case was the

sale and distribution of narcotics and dangerous drugs and the

illegal sale, importation and exportation of weapons.

Sufficiency of the Evidence

The essence of defendants' argument is that Agent Cerda

represented too much. Defendants claim that Agent Cerda

presented himself as a smuggler in general rather than a

trafficker only in specified unlawful activities. Defendants

claim that he represented that there were multiple sources of the

funds to be laundered, including but not limited to: 

televisions, Mayan figures and artifacts from Guatemala, stolen

tires, heavy equipment, used telephones, etc. Therefore,

defendants argue the record does not support what the government

alleges defendants ultimately believed about the "nature" of the

proceeds sought to be laundered through the Casa de Cambio Colon. 

The government contends that the only sources of funds ever

discussed with the defendants were the proceeds of drug
12

trafficking and weapons smuggling. Further, the government

argues that the record reveals that the argued references to

other sources of funds were taken out of context by defendants

and those references merely referred to possible legitimate

sources which could have been used to show that the money from

the various transactions originated in Mexico.

Defendants further argue that Agent Cerda used ambiguous

terms with double and triple meanings and never directly stated

that he was in the business of either illegal sales of drugs or

weapons or both. Defendants argue specific terms were never

used rather only very general terms such as "Italians",

"contrabandista" and "marihuano" were used, which defendants

argue are general terms which could mean a variety of things

depending on the part of the country from which you come. 

However, at trial Agent Munoz testified that he had lived in the

Rio Grande Valley all his life and the term "contrabandista"

meant someone who smuggles drugs. Agent Cerda testified

"marihuano" could mean someone who sells or smokes marijuana.

 

Defendants argue the general term "contrabandista", used by

Agent Cerda to imply smuggling guns and drugs or both, also could

apply to smuggling many items such as electronics, or clothing

and this coupled with Agent Cerda's assertions about the source

of the funds is insufficient as a matter of law to prove either

that the proceeds laundered were the proceeds of illegal drug
13

sales or illegal weapon sales or that either Castaneda or Tiquet

knew or believed that he was laundering these types of funds.

Law enforcement agents do not have to make express

representations that the funds to be laundered were proceeds of

specified unlawful activity. "It is enough that the government

prove that an enforcement officer or other authorized person made

the defendant aware of circumstances from which a reasonable

person would infer that the property was drug proceeds." United

States v. Kaufmann, 985 F.2d 884, 893 (7th Cir.), cert denied, 

 U.S. 113 S.Ct. 2350 (l993). Further, this Court notes that

when evaluating the representations made by law enforcement

agents, language used by a law enforcement agent that might be

ambiguous to a person unfamiliar with illicit activity may not be

ambiguous to a person involved in an illicit activity. United

States v. Breque, 964 F.2d 38l, 387 (5th Cir. l992), cert denied,

 U.S. 113 S.Ct. 1253 (l993). 

The facts surrounding this issue of the case were testified

to at trial in great detail by Agent Cerda and Agent J.J. Munoz, 

and through some 200 tape recorded conversations by and between

the undercover agents and the defendants. The record is replete

with testimony which refutes defendants' assertions that they

were not aware of the source of the money sought to be laundered

by Agent Cerda. Cerda testified that in the first face-to-face

meeting with defendants on February 5, l99l, he told both Tiquet
14

and Castaneda that he was the "middle man for certain

individuals, for the Italians, as a matter of fact, that were

involved in the smuggling of arms and narcotics into and out of

the United States." 

Subsequently, in two (2) meetings in February of l99l, Agent

Cerda told Tiquet that, "these men work -- they work in real big

amounts -- real big -- they're -- they're in a little of every

thing, [unclear] be it weed, I mean, arms or what . . ." Agent

Cerda further told Tiquet that, "these Italians, this of -- of

guns, they're fine [unclear] . . . There's going to be many,

well they're smugglers of the first kind . . . Nothing but guns."

Agent Cerda told Tiquet that his clients have "some arms . . .

Automatic ones. That I know well that they're hot, understand

me?"

On May 21, l99l, while traveling in Agent Cerda's car, Agent

Cerda discussed with Castaneda and another defendant charged in

the indictment, that Agent Cerda's clients trafficked in weapons. 

Agent Cerda then stopped to show Castaneda and the other

defendant two (2) assault rifles, an AK-47 and an M-16.

On June 4, l99l, Castaneda introduced Agent Cerda to David

Torres-Sancedo, who was also charged in the indictment. During

this meeting Agent Cerda explained that his clients were

"marijuana dealers" and later told Castaneda he had access to M-
15

16s in "big amounts." On June 5, l99l, Agent Cerda told

Castaneda that his clients "move a tremendous amount of --

they're in arms . . . ." On December 26, l99l, Castaneda called

Agent Munoz, and during the course of the conversation, Agent

Munoz referred to his clients as "dopers." On January 3, l992,

Agent Munoz met with Castaneda and twice referred to his clients

as "dopers" and told Castaneda that Agent Cerda's clients dealt

in weapons such as rifles and machine guns. A bit later in the

conversation Castaneda told Agent Munoz he wanted a gun. 

Consequently, a jury could have reasonably inferred that

Castaneda believed the monies to be laundered were the proceeds

of illegal drug and weapon trafficking.

Further testimony reveals that Tiquet discussed supplying

and actually sold narcotics to Agent Cerda. Tiquet told Agent

Cerda that "we move a lot of pills" referring to the Mandrex

pills and further discussed the possibility of selling Agent

Cerda one (l) ton of cocaine. On February 4, l992 Tiquet sold

Agent Cerda 1,000 Mandrex pills for $2,000.00. 

From these transactions and Agent Cerda's testimony a jury

could reasonably infer that Tiquet also believed Agent Cerda's

representations that the money to be laundered was from a

specified illegal activity, i.e., illegal drug sales and illegal

gun sales or both. 
16

Law enforcement agents involved in "sting" operations are

not required under § 1956(a)(3) to describe the source of funds

to be laundered before each money laundering transaction. This

court in Arditti, 955 F.2d at 339 held:

"To hold that a government agent must recite the alleged

illegal source of each set of property at the time he

attempts to transfer it in a 'sting' operation would make

enforcement of the statute extremely and unnecessarily

difficult; 'legitimate criminals,' whom undercover agents

must imitate, undoubtedly would not make such recitations

before each transaction."

Lastly, the context in which all of these representations

were made is not to be discounted. The record reflects that

either Tiquet, Castaneda or both defendants took steps to ensure

that the money provided to them by Agent Cerda appeared to

originate from a pesos for dollars exchange in Mexico. In order

to create this impression the cash was transported to Mexico,

money was wire transferred to Agent Cerda's undercover accounts

and fraudulent facts and documents were created purporting to

evidence a pesos for dollars exchange in Mexico. The meetings

between the undercover agents and the defendants took place in

"out of the way locations", and Tiquet and Castaneda both

received a substantial fee for each money laundering transaction. 

Therefore, the service Tiquet and Castaneda were providing and
 

3 The requested jury instruction was as follows: Multiple

Conspiracies: You must determine whether the conspiracy charged

in the indictment existed, and, if it did, whether the defendant

was a member of it. If you find that the conspiracy charged in

the indictment did not exist, then you must return a verdict of

not guilty, even though you find that some other conspiracy

existed. If you find that a defendant was not a member of the

conspiracy charged in the indictment, then you must find the

defendant not guilty, even though the defendant may have been a

member of some other conspiracy. See: United States Fifth

Circuit District Judges' Association, Pattern Jury Instructions -

Criminal Cases (l990), at 92.

17

the circumstances under which it was being provided also could

have contributed to a reasonable person's inferring that the

monies laundered were the proceeds of illegal drug and weapons

sales. Kaufmann, 985 F.2d at 893 (7th Cir.), 113 S.Ct. 2350

(l993). 

Therefore, we find that the record contains sufficient

evidence for a reasonable jury to have found that the defendants

believed the funds they were transferring were the proceeds of a

specified illegal activity, i.e., illegal drug or firearm sales

or both. 

Multiple Conspiracy Instruction

Both Castaneda and Tiquet claim that the district court

committed reversible error by failing to give the requested Fifth

Circuit Pattern Jury Instruction for Multiple Conspiracies3 and

therefore, conviction on Count One for both Castaneda and Tiquet

must be reversed. 
 

4 Pinkerton v. United States, 328 U.S. 640, 647-48 (l946). 

 

5 The court instructed the jury - Now, with respect to the

substantive count. Remember, Count One is not a substantive

count, that's a conspiracy. I'll tell you a conspirator is

responsible for a conspiracy by his fellow conspirator if he was

a member of the conspiracy when the offense was committed and if

the offense was committed in furtherance of the conspiracy. 

Therefore, if you first found (sic) that the defendant that you

have under consideration guilty of the conspiracy charged in

Count One, if you first find the defendant that you have under

consideration is guilty of Count One and if you find beyond a

reasonable doubt that while he was a member of that conspiracy

his fellow conspirators committed the offense that you have under

consideration in the substantive counts in furtherance of or as a

foreseeable consequence of that conspiracy, you may find him

guilty of the count that you have under consideration even though

he may not have participated in any of the acts that constitutes

the acts in all of the Counts Two through Nineteen. See: United

States Fifth Circuit District Judges' Association Pattern Jury

Instructions - Criminal Cases (l990) at 93.

18

The basis of both Castaneda's and Tiquet's argument is that

because Castaneda conducted certain transactions without Tiquet's

knowledge, there was necessarily more than one (l) conspiracy and

therefore, the district court committed reversible error by not

giving the requested instruction. We disagree. 

Further, both defendants contend that because there was no

Multiple Conspiracy instruction given and the district court gave

a Pinkerton4 instruction,5 the convictions on the money

laundering counts are necessarily "tainted." Again, we disagree.

Both defendants were indicted in Count I for participating

in a single conspiracy to launder funds represented by government

agents to be the proceeds of illegal narcotics and weapons
19

trafficking. However, both of the defendants argue that the

record contains evidence that numerous separate conspiracies

developed between the agents, Tiquet, Castaneda and various other

defendants named in the indictment. In particular, Castaneda

argues that a separate conspiracy developed when Castaneda agreed

to go behind Tiquet's back to launder funds supplied by Agent

Cerda, such that by April, l99l, Castaneda was in competition

with Tiquet to launder Agent Cerda's funds. Therefore, Castaneda

in particular, argues that the post-April, l99l agreements to

launder Agent Cerda's funds among Castaneda and other parties

were not part of the overall conspiracy charged in Count One. 

The government argues that there was one (l) and only one (l)

overall conspiracy, that both defendants were party to this

overall conspiracy, and regardless of who was actually laundering

the money, when or how, the goal of the overall conspiracy

remained the same: laundering Agent Cerda's money for a fee. 

Defendants' particular objections will be addressed separately.

Tiquet

Tiquet requested an instruction on Multiple Conspiracies and

therefore, the standard of review for failure to give the

requested instruction is abuse of discretion. Arditti, 955 F.2d

at 339. This Court has repeatedly held that "a defendant is

entitled to a Multiple Conspiracy instruction if he specifically

and timely requests such an instruction and his theory has legal
20

and evidentiary support." United States v. Stowell, 947 F.2d

1251, 1258 (5th Cir. l99l) cert denied, 112 S.Ct. 1269 and cert

denied, 113 S.Ct. 292 (l992). 

A multiple conspiracy instruction "is generally required

where the indictment charges several defendants with one (l)

overall conspiracy, but the proof at trial indicates that some of

the defendants were only involved in separate conspiracies

unrelated to the overall conspiracy charged in the indictment." 

United States v. Greer, 939 F.2d 1076, 1088 (5th Cir. l99l)

(quoting United States v. Anguiano, 873 F.2d 1314, 1317 (9th

Cir.) cert denied, ll0 S.Ct. 416 (l989)) (emphasis added),

opinion reinstated in part by 968 F.2d 433 (5th Cir. l992) (en

banc), cert denied, 113 S.Ct. 1390 (l993). As Tiquet timely

requested a multiple conspiracy instruction, this Court will

review only whether Tiquet's assertion has any evidentiary

support within the record. 

Tiquet was not involved in the "behind the back"

transactions which Castaneda claims formed a separate conspiracy

and is the basis for Castaneda's argument that a Multiple

Conspiracy instruction should have been given by the Court. 

Rather, Tiquet argues that there are numerous examples of the

agents and the defendants operating behind the backs of each

other, in separate schemes to launder money. As previously

stated, Count One of the indictment charged an overall conspiracy
21

to launder the funds of the agents involved in the government

"sting" operation. The remaining substantive counts of the

indictment charge and name Tiquet only as a participant in those

substantive counts in which he directly participated. Tiquet,

does not argue that evidence introduced at trial showed that he

was involved only in a separate non-charged conspiracy and not in

the overall conspiracy charged in Count One. Further, Tiquet was

not convicted on any substantive count other than those

substantive counts in which he was named and in the overall

conspiracy charged in Count One. The record does not support

Tiquet's argument that he was not involved in the overall

conspiracy but in other non-charged conspiracies. Consequently,

this Court finds the failure to give the requested instruction

was not an abuse of discretion and therefore, does not require a

reversal.

Castaneda

Castaneda along with a Mr. Alaniz elected to go, in the

government's words, "behind Tiquet's back" and developed separate

deals to launder Agent Cerda's funds, with various other parties. 

However, Castaneda did not request the Multiple Conspiracy

instruction, supra. Accordingly, the standard of review as to

Castaneda is plain error. United States v. Barakett, 994 F.2d

ll07, 1112 (5th Cir. l993), cert denied 114 S.Ct. 701 (l994). 

Castaneda's argues he did request the instruction as he
 

6 The language cited by defendant is not complete and is

taken out of context. The complete statement of the district

court is as follows:

There are several motions filed in this case. We will take

up motions filed, as we have them listed for each respective

defendant.

As with regard motions that will adhere to the benefit of

all defendants, there have been several of you who have

filed motions to that effect, that will be granted. What

adheres to the benefit of one (l) defendant will adhere to

the benefit of all defendants. 

One ruling of the Court should likewise affect you accordingly and, if not, you tell me why not when we get there.

Record Vol. 9, page 7.

Much later when addressing the question of jury

instructions, the district court stated: 

Remember that if you have favored me with any requested

instructions and had them filed that you don't have to

object to anything I do inconsistent therewith. You

preserve your exception in there (sic) regard. You can

object to anything further that you see fit to so do. Fair? 

Record Vol. 32, p. 1215.

22

argues the district court ruled that defendants could "piggy

back" onto jury instructions requested by co-defendants. In

support, Castaneda cites the district court's statement that

"What adheres to the benefit of one (l) defendant will adhere to

the benefit of all defendants". However, in reviewing the

complete record, we find the portion of the district court's

statement quoted by defendant is not complete and is taken out of

context. When viewed in toto and in context it is clear the

cited statement applied to motions of co-defendants and not to

requested jury instructions.6 
23

Under the plain error standard, only error "which when

examined in the context of the entire case, is so obvious and

substantial that failure to notice and correct it would affect

the fairness, integrity or public reputation of the judicial

proceedings" requires reversal (quoting United States v.

Vontsteen, 950 F.2d 1086, 1092 (5th Cir.) (en banc), cert denied

 U.S. , 1122 S.Ct. 3039 (l992)).

In essence, Castaneda argues that because there was evidence

introduced at the trial of a separate transaction involving

Castaneda and others, it was error for the district court to

refuse to instruct the jury on Multiple Conspiracies. Castaneda

argues this separate transaction was a separate conspiracy and

therefore, the Multiple Conspiracy charge was required. This

Court disagrees. The government charged an overall conspiracy in

Count One and the substantive acts in the latter counts. 

Castaneda does not argue that the evidence introduced at trial

showed that he was involved only in a separate non-charged

transaction and not in the overall conspiracy charged in Count

One. Castaneda does not refute the fact that he might have been

involved in the charged overall conspiracy, at least before

April, l99l, he merely argues he also was involved in the

separate transactions charged in the counts representing the

substantive acts which comprised the conspiracy. Such a

situation does not require a Multiple Conspiracy charge on a

plain error review. Consequently, this Court finds the failure
24

to give the requested instruction was not plain error. It was

"not so obvious and substantial that failure to notice and

correct it would affect the fairness, integrity or public

reputation of judicial proceedings" and therefore, does not

require a reversal.

Pinkerton Instruction

Both Castaneda and Tiquet argue that if the court failed to

properly instruct the jury on multiple conspiracies, it would

logically follow that the substantive offense convictions, based

on Pinkerton, are "tainted." As we have found that the district

court did not err in refusing the request for a Multiple

Conspiracy instruction, and after reviewing the record as a

whole, this Court finds the district court's giving of a

Pinkerton instruction does not rise to the level of plain error

or an abuse of discretion and, in fact, the Pinkerton instruction

was essentially superfluous. We, therefore, cannot say that the

district court erred in its refusal to give a Multiple Conspiracy

instruction to the jury or in its giving of a Pinkerton

instruction. 

Sentencing Guideline Issues

A sentence imposed under the Federal Sentencing Guidelines

will be upheld unless a defendant can demonstrate that it was
25

imposed in violation of the law, was imposed because of an

incorrect application of the guidelines, or was outside the range

of applicable guidelines and is unreasonable. United States v.

Parks, 924 F.2d 68, 71 (5th Cir. l99l). 

The district court's sentence will be upheld on appeal so

long as it results from a correct application of the guidelines

to factual findings that are not clearly erroneous. United

States v. McCaskey, 9 F.3d 368, 372 (5th Cir. l993). 

The finding will be clearly erroneous when the reviewing

court is left with a definite affirmed conviction that a mistake

has been committed. United States v. Shaw, 894 F.2d 689, 691

(5th Cir. l990). 

Further, a sentencing court's factual findings must be

supported by a preponderance of the evidence. Id. We review the

issues de novo, United States v. Soliman, 954 F.2d 1012, 1013

(5th Cir. l992). 

Both Castaneda and Tiquet argue that the district court

clearly erred in increasing each defendants' base level offense

by three (3) in accordance with § 2Sl.l(b)(l) of the Federal

Sentencing Guidelines which provides:
26

Specific Offense Characteristics:

(l) If the defendant knew or believed that the funds were

the proceeds of an unlawful activity involving the

manufacture, importation, or distribution of narcotics or

other controlled substances, increase by three (3) levels.

As this Court found that a reasonable jury could have found

beyond a reasonable doubt that both Castaneda and Tiquet knew or

believed that the source of the money being laundered was the

result of either illegal drug or weapons sales, consequently, the

district court did not err when it found that each defendant

could be assessed an increase of three (3) levels in his base

offense level pursuant to § 2Sl.l(b)(l) of the Federal Sentencing

Guidelines. 

Secondarily, defendants argue that the application of U.S.C. 

§ 2Sl.l(b)(l) violates the expo facto clause of the Constitution. 

A sentencing court must apply the version of the guidelines

effective at the time of sentencing unless application of that

version would violate the Ex Post Facto Clause of the

Constitution. United States v. Mills, 9 F.3d ll32, 1136 n. 5

(5th Cir. l993).

The Federal Sentencing Guidelines were amended in l99l to
 

7 Tiquet, charged in Count XVII for activity on January 9,

l992 and Castaneda, charged in Count XV for activity on December

20, l99l, Count Sixteen, on January 3, l992 and Count Seventeen

on January 10, l992. 

 

8 Groups of closely related counts. All counts involving

substantially the same harm shall be grouped together into a

single Group. Counts involve substantially the same harm within

the meaning of this rule: (d) when the offense level is

determined largely on the basis of the total amount of harm or

loss, the quantity of substance involved or some other measure of

aggregate harm, or if the offense behavior is ongoing or

continuous in nature and the offense guideline is written to

cover such behavior.

Offenses covered by the following guidelines are to be

grouped under this subsection: Section 2Sl.l.

 

9 18 U.S.C. § 3553(a)(4) states:

 Imposition of a Sentence:

27

include § 2Sl.l(b)(l) and this circuit held in United States v.

Breque, 964 F.2d 38l, 389 (5th Cir. l992) that the three (3)

level "sting" adjustment provided in § 2Sl.l(b)(l) was a

substantive change in the guidelines that could not apply to preNovember l, l99l, conduct and belief. 

This Court notes, however, that in the case of both

defendants, each was charged with at least one (l) count

subsequent to the November l, l99l inclusion in the guidelines of

§ 2Sl.l(b)(l).7 

The district court "grouped" the money laundering counts

together in accordance with United States Sentencing Guidelines,

§ 3Dl.3(d)8 and in accordance with 18 U.S.C. § 3553(a)(4).9
 (a) Factors to be considered in imposing a sentence -

The court shall impose a sentence sufficient, but

not greater than necessary, to comply with the

purposes set forth in paragraph (2) of this

subsection. The court, in determining the

particular sentence to be imposed, shall consider 

(4) the kinds of sentence and the sentencing

range established for the applicable category

of offense committed by the applicable

category of defendant as set forth in the

guidelines that are issued by the Sentencing

Commission pursuant to 28 U.S.C. § 994(a)(l)

and that are in effect on the date the

defendant is sentenced . . .

 

28

Accordingly, we AFFIRM the district court's assessment of a

three (3) level increase pursuant to § 2Sl.l(b)(l) of the Federal

Sentencing Guidelines and therefore, AFFIRM the district court's

sentence of both defendants.

Conclusion

Finding no error, we AFFIRM the district court on all issues

raised on appeal.