UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 14-4441

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

HUMBERTO ROJAS-DIAZ, a/k/a Negro, a/k/a Bruce, a/k/a Lopez, 

a/k/a/ Jose,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern 

District of North Carolina, at Wilmington. Terrence W. Boyle, 

District Judge. (7:12-cr-00088-BO-2)

Argued: December 10, 2015 Decided: April 5, 2016

Before GREGORY and SHEDD, Circuit Judges, and DAVIS, Senior 

Circuit Judge.

Affirmed in part, reversed in part, and vacated and remanded 

with instructions by unpublished opinion. Senior Judge Davis 

wrote the opinion, in which Judge Gregory joined. Judge Shedd 

wrote a separate opinion concurring in the judgment. 

ARGUED: Michael W. Patrick, LAW OFFICE OF MICHAEL W. PATRICK, 

Chapel Hill, North Carolina, for Appellant. Kristine L. Fritz, 

OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, 

for Appellee. ON BRIEF: Thomas G. Walker, United States 

Attorney, Jennifer P. May-Parker, Assistant United States
2

Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North 

Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
3

DAVIS, Senior Circuit Judge:

A jury convicted Appellant Humberto Rojas-Diaz of 

conspiring to traffic illegal drugs, conspiring to commit money 

laundering, substantive money laundering, and attempted drug 

distribution. He now appeals, challenging the district court’s 

denial of his motion for judgment of acquittal, contending that 

his convictions for money laundering conspiracy and substantive 

money laundering are not supported by sufficient evidence. He 

also argues that the district court committed multiple errors in 

its jury instructions. Having fully considered his assertions 

of error, we agree with Rojas-Diaz that the evidence was 

insufficient to prove his knowing participation in the charged 

money laundering conspiracy. In all other respects, we discern 

no error. Accordingly, we affirm in part, reverse in part, and 

remand for the entry of a judgment of acquittal as to the charge 

of money laundering conspiracy. 

I.

A.

This case arises from a Drug Enforcement Administration 

(“DEA”) investigation of Rojas-Diaz’s drug trafficking activity 

in late 2010. During the investigation, Special Agent Joseph E. 

Carucci identified James Edward Cox as a courier for Rojas-Diaz, 

whom Cox knew as “Bruce.” On September 8, 2010, Special Agent 

Carucci surveilled Cox as he travelled to McAllen, Texas, to 
4

deliver a boat that had been modified to hold large amounts of 

marijuana. Once in Texas, Cox delivered the boat to Manuel 

Tabares-Castillo (“Castillo”). Castillo then gave Cox a cooler 

lined with ten kilograms of cocaine. DEA agents pulled over Cox

in Georgia on September 14, 2010, as he returned from Texas. 

They searched Cox’s vehicle, recovered the cooler, and arrested 

Cox after discovering the cocaine.

A few weeks after his arrest, Cox agreed to cooperate with 

the DEA as a confidential informant, working closely with

Special Agent Carucci, who would be acting in an undercover

capacity. The duo made two trips to Texas as part of the RojasDiaz investigation. For the first trip, Rojas-Diaz had asked 

Cox to retrieve the boat and leave a Fifth Avenue trailer, a 

type of recreational vehicle, with Castillo so it could be 

modified to carry marijuana. Cox, at Special Agent Carucci’s 

direction, agreed to make the delivery. Rojas-Diaz then gave 

Cox $50,000 in cash to pay Castillo for the drugs in the boat.

As planned, Cox and Special Agent Carucci left for Texas 

with the Fifth Avenue trailer on October 30, 2010, tailed by a 

surveillance team of DEA agents. They stopped briefly along the 

way so Cox could meet an unidentified Castillo associate who 

gave Cox a cooler that had been modified to conceal the $50,000

in its lining. Two days later, Cox and Special Agent Carucci 

delivered the Fifth Avenue trailer to Castillo at Castillo’s 
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house in Texas. In a hotel parking lot on November 2, 2010, Cox 

gave Castillo the cooler lined with $50,000. Cox and Special 

Agent Carucci returned to North Carolina without the boat, but 

they had observed several men loading it with marijuana at 

another location in Texas.

The second trip occurred about a week later. On November 

10, 2010, Rojas-Diaz gave Cox $19,010 to buy a Fleetwood trailer

so that it too could be modified and loaded with marijuana. The 

intention was to use the Fifth Avenue and Fleetwood trailers in 

rotation to deliver drugs to North Carolina. Cox purchased the 

Fleetwood trailer as directed, then he and Special Agent Carucci

delivered it to Castillo in Texas. While there, Cox and Special 

Agent Carucci retrieved the boat and began towing it back to 

North Carolina. On November 14, 2010, they stopped in Houston, 

Texas, where Special Agent Carucci confirmed the boat contained 

marijuana by drilling a hole in its stern.

Because the DEA had planned to use the boat to make a 

controlled delivery the following day, after which the recipient 

of the boat would be arrested, Cox and Special Agent Carucci 

carried out a plan to maintain their cover: Cox got approval 

from Rojas-Diaz and Castillo to remove sixty pounds of marijuana 

from the boat with the intention to report back later that he 

and Special Agent Carucci had sold it. With the plan underway, 
6

Cox and Special Agent Carucci hoped to avert any suspicion that 

might arise from the anticipated arrests.

Cox and Special Agent Carucci left the boat and remaining 

marijuana with an associate of Rojas-Diaz in Lumberton, North 

Carolina. Cox then called Rojas-Diaz and Castillo to confirm 

that the boat had been delivered. Law enforcement officers 

stayed behind and surveilled the boat, observing men unloading

marijuana from it. As the officers moved in to seize the boat 

and marijuana, the men fled.

On November 19, 2010, Cox, as planned, told Rojas-Diaz that 

he and Special Agent Carucci had sold their share of the

marijuana. To make it appear that the sale had occurred, Cox 

and Agent Carucci lined a cooler with $15,000 of government 

currency and, on November 20, 2010, delivered the cooler to an 

associate of Castillo in South Carolina. Later, in January 

2011, DEA agents found 1300 kilograms of marijuana hidden in the 

Fifth Avenue trailer in Texas. The Fleetwood trailer was never 

recovered.

B.

On July 2, 2012, and March 21, 2013, respectively, a grand 

jury in the Eastern District of North Carolina returned an 

indictment and a superseding indictment charging Rojas-Diaz and 

two codefendants with drug-trafficking-related offenses. On 

April 17, 2013, the grand jury returned a twelve-count second 
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superseding indictment against Rojas-Diaz and five codefendants, 

Kelly Ray Chavis, James Howell Oxendine, David Prado, William 

Gerardo Alvarado Parra, and Shane Lorenzo Stewart.

The second superseding indictment charged Rojas-Diaz, 

specifically, with conspiracy to distribute and to possess with 

the intent to distribute five kilograms or more of cocaine and 

1000 kilograms or more of marijuana in violation of 21 U.S.C. 

§ 846; conspiracy to commit money laundering in violation of 18 

U.S.C. § 1956(h); substantive money laundering in violation of 

18 U.S.C. § 1956(a)(1)(A)(i); and attempted possession with the 

intent to distribute 100 kilograms or more of marijuana, and 

aiding and abetting, in violation of 21 U.S.C. § 846 and 18 

U.S.C. § 2.* Rojas-Diaz pled not guilty and proceeded to a fourday jury trial.

At trial, Cox and Special Agent Carucci testified as 

government witnesses about their involvement in the 

investigation. Castillo also testified as a government witness. 

Castillo admitted that he had supervised the filling of the boat 

with marijuana, and he acknowledged that he had worked closely 

with Cox and that Cox had helped him transport drugs to North 

 * The second superseding indictment also charged Rojas-Diaz 

with attempted possession with the intent to distribute five 

kilograms or more of cocaine, and aiding and abetting, in 

violation of 21 U.S.C. § 846 and 18 U.S.C. § 2. That charge was 

dismissed prior to trial.
8

Carolina. But Castillo was adamant that he had never met or 

spoken to Rojas-Diaz until he was asked to testify in this case.

All but one of the codefendants, David Prado, testified at 

trial, describing their drug trafficking activities with RojasDiaz, whom they knew by different names. Kelly Chavis, who knew 

Rojas-Diaz as “Bruce,” testified that he had been buying

marijuana, and occasionally cocaine, from Rojas-Diaz since about 

2010. He and Rojas-Diaz were nearby when Cox and Special Agent 

Carucci delivered the boat in North Carolina. According to 

Chavis, Rojas-Diaz had positioned himself to watch the delivery,

so Rojas-Diaz saw the law enforcement officers seize the boat 

and the marijuana it contained. 

Shane Stewart mostly referred to Rojas-Diaz as “Buddy” and 

had used Rojas-Diaz as a marijuana supplier. Stewart testified 

that, at first, Rojas-Diaz had given him thirteen pounds of 

marijuana, which Stewart sold by that evening. Then, over a 

two-week period, Rojas-Diaz started fronting Stewart up to fifty

pounds of marijuana at a time. The most marijuana Rojas-Diaz 

ever gave Stewart at one time was ninety pounds.

James Oxendine knew Rojas-Diaz as “Jose.” Stewart had 

introduced Oxendine to Rojas-Diaz, and by 2010, Oxendine was 

using Rojas-Diaz as a marijuana supplier. Rojas-Diaz fronted

Oxendine one to two pounds of marijuana five or six times a 

year, totaling about twenty pounds of marijuana over the course 
9

of their association. Finally, William Parra, who knew RojasDiaz as “Negro,” met Rojas-Diaz in 2011. Parra testified that 

he had sold Rojas-Diaz fifty pounds of marijuana for $40,000 on 

two separate occasions.

After the conclusion of the presentation of evidence, 

Rojas-Diaz moved for judgment of acquittal on all counts under 

Federal Rule of Criminal Procedure 29, which the district court 

denied. Thereafter, the district court, relying “substantially” 

on the government’s proposed instructions, J.A. 526, instructed

the jury on the conspiracy charges without mentioning whether a 

defendant could conspire with government agents. Following an 

objection by Rojas-Diaz, the district court added an instruction 

that “[a] person can’t conspire with the government.” J.A. 590. 

During the money laundering instructions, the district court 

described the crime as making “dirty money” clean again and as 

“hiding” money obtained through criminal activity. J.A. 575, 

577-78. But the district court later instructed the jury that 

the government had to prove “the defendant intended to promote 

the carrying on of [an] unlawful activity.” J.A. 587. In 

addition, the district court instructed that, “[i]n a 

conspiracy[,] people can come and go as long as they know

the objects of the conspiracy and willfully agree to become

a member of it.” J.A. 585. The district court defined

“willfully” as “an act [that] is committed voluntarily and 
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purposely with the specific intent to do something the law 

forbids.” J.A. 582.

Finally, as to the attempted drug distribution 

instructions, the district court initially referenced “five 

kilograms of cocaine,” J.A. 585, even though Rojas-Diaz had only 

been charged with an offense involving 100 kilograms or more of 

marijuana. Rojas-Diaz objected to the instruction, and the 

district court correctly named the drug, but not the quantity, 

for the jury.

On January 19, 2014, the jury found Rojas-Diaz guilty of

all charges in the second superseding indictment. After the 

jury announced the verdict, Rojas-Diaz timely renewed his 

previous motion for judgment of acquittal on all counts under 

Federal Rule of Criminal Procedure 29, which the district court 

denied. 

On May 30, 2014, the district court sentenced Rojas-Diaz to 

360 months’ imprisonment for the drug trafficking conspiracy and 

attempted drug trafficking convictions, followed by a lifetime 

of supervised release. For the money laundering conspiracy and 

substantive money laundering convictions, the district court 

imposed a concurrent sentence of 240 months’ imprisonment 

followed by three years’ supervised release. This timely appeal

followed.
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II.

A.

We review the denial of a motion for judgment of acquittal

de novo. United States v. Osborne, 514 F.3d 377, 385 (4th Cir. 

2008). In doing so, we view the evidence in the light most 

favorable to the government to determine whether the guilty 

verdict is supported by substantial evidence. Id. (citing

United States v. Burgos, 94 F.3d 849, 862 (4th Cir. 1996) (en 

banc)). Substantial evidence is “evidence that a reasonable 

finder of fact could accept as adequate and sufficient to 

support a conclusion of a defendant’s guilt beyond a reasonable 

doubt.” Id. (quoting Burgos, 94 F.3d at 862).

B.

Rojas-Diaz argues that his conviction for money laundering 

conspiracy should be vacated because the only other identified 

participants in the ostensible money laundering scheme were 

government agents. His contention has merit. The second 

superseding indictment specifically charged Rojas-Diaz with 

conspiring to launder $19,010 between November 2 and 10, 2010, 

in promotion of illegal drug trafficking in violation of 18 

U.S.C. § 1956(h), as follows:

Beginning no later than on or about November 2, 

2010, and continuing until at least on or about 

November 10, 2010, in the Eastern District of North 

Carolina and elsewhere, defendant HUMBERTO ROJAS-DIAZ 

. . . did knowingly conspire with other persons known 
12

and unknown to the Grand Jury to commit an offense in 

violation of Title 18, United States Code, Section 

1956(a)(1)(A)(i), specifically, to conduct a financial 

transaction affecting interstate and foreign commerce 

which in fact involved the proceeds of specified 

unlawful activity, that is, the transfer of 

approximately $19,010 in United States currency to 

another individual known to the Grand Jury, with the 

intent to promote the carrying on of specified 

unlawful activity, that is, illegal drug trafficking, 

and knowing that the property involved in the 

financial transaction represented the proceeds of some 

form of unlawful activity. 

J.A. 41-42.

To prove the charged conspiracy, the government was 

required to establish: “(1) an agreement [existing from on or 

about November 2, 2010, until on or about November 10, 2010,] to 

commit money laundering existed between one or more persons [to 

“transfer . . . approximately $19,010 in United States 

currency”]; (2) the defendant knew that the money laundering 

proceeds had been derived from an illegal activity; and (3) the 

defendant knowingly and voluntarily became part of the 

conspiracy.” United States v. Singh, 518 F.3d 236, 248 (4th 

Cir. 2008) (brackets added) (quoting J.A. 41). A person, 

however, cannot conspire with a government agent. United States 

v. Hackley, 662 F.3d 671, 679 (4th Cir. 2011) (citing United 

States v. Lewis, 53 F.3d 29, 33 (4th Cir. 1995)). The record 

here demonstrates that the $19,010 transaction involved solely 

Rojas-Diaz and government agents. Thus, Rojas-Diaz’s conviction 
13

for money laundering conspiracy is not supported by sufficient 

evidence and must be vacated. 

As described above, the evidence elicited at trial 

established that Rojas-Diaz gave Cox $19,010 on November 10, 

2010, to purchase the Fleetwood trailer so that it could be

modified to transport drugs. Rojas-Diaz also intended the money 

to cover various expenses incurred while towing the boat, by 

then filled with marijuana, back to North Carolina. Cox and 

Special Agent Carucci used the money as instructed. But Cox, a 

confidential informant, and Special Agent Carucci, working 

undercover for the DEA, were government agents at the time and 

could not, as a matter of law, have conspired with Rojas-Diaz to 

launder the money (or to commit any other criminal offense). 

There is no evidence that any of the men gave any of the money 

to another person, government agent or otherwise, who knowingly 

participated in the scheme.

The government insists that a conspiracy to launder the 

$19,010 existed between Rojas-Diaz and Castillo, who undoubtedly

was involved in the overall narcotics conspiracy and was not a 

government agent (although he later pled guilty and testified at 

trial pursuant to a plea agreement). Specifically, the 

government argues that Castillo had a longstanding arrangement 

to supply Rojas-Diaz with marijuana and cocaine through a 

delivery system that involved concealing drugs in modified boats 
14

and trailers. In the government’s view, the $19,010 was 

necessary to advance that arrangement. While “[t]he existence 

of a tacit or mutual understanding is sufficient to establish a 

conspiratorial agreement,” United States v. Kellam, 568 F.3d 

125, 139 (4th Cir. 2009) (quoting United States v. Ellis, 121 

F.3d 908, 922 (4th Cir. 1997)), there must be at least some

evidence that the defendant participated in the charged 

conspiracy, United States v. Collazo, 732 F.2d 1200, 1205 (4th 

Cir. 1984) (citing United States v. Laughman, 618 F.2d 1067, 

1075 (4th Cir. 1980)), here, the money laundering conspiracy, 

not merely the related but legally separate narcotics 

conspiracy. There simply is no such evidence in this record.

No evidence directly connects Castillo to the $19,010 or to 

any explicit or implicit agreement as to the use of those funds. 

There is no evidence that Rojas-Diaz and Castillo discussed the

$19,010 before or after Rojas-Diaz gave the money to Cox and 

Special Agent Carucci. Nor is there evidence that Rojas-Diaz 

and Castillo discussed purchasing or utilizing the Fleetwood 

trailer before it arrived at Castillo’s house. Nothing 

demonstrates that Rojas-Diaz acted on anything more than his own 

accord.

Nor does the record reflect that there exists substantial 

circumstantial evidence of any collaborative efforts between 

Rojas-Diaz and Castillo in respect to the money laundering 
15

conspiracy. To the contrary, the record underscores that the 

two men had little, if any, contact with each other. At trial, 

for example, Castillo was unsure at first whether he had ever 

spoken to Rojas-Diaz before. Castillo testified about two phone 

calls that he may have had with Rojas-Diaz, both of which were 

unhelpful in tying the two men to one another. For the first

call, Castillo explained that he talked to “a Mexican guy or 

Hispanic guy” named “Negro.” J.A. 486. Although Parra knew 

Rojas-Diaz as “Negro,” no testimony established that the 

“Mexican guy or Hispanic guy” on the phone was Rojas-Diaz. 

Castillo stated that he had never seen Rojas-Diaz before, so he 

could not “be a hundred percent sure who it was that called.” 

Id. For the second call, Castillo testified that he had “talked 

to somebody from Houston” once. Id. He added, though, that 

Rojas-Diaz “was never mentioned to [him] so [he did not] know 

who that could be.” Id. Moreover, Rojas-Diaz is from North 

Carolina, not Houston.

Castillo did not testify specifically as to when either

phone call occurred or the topics discussed. Moreover, Castillo

later flatly denied ever knowingly communicating with RojasDiaz, testifying that he “never knew [Rojas-Diaz]” and that he 

had “never seen him before.” J.A. 487. Castillo also may not 

have even been in charge of the drug trafficking enterprise. He 

asserted that he worked directly with his boss, who was never 
16

identified, and Cox, but he never mentioned working for or with

Rojas-Diaz. See, e.g., J.A. 485 (“[Cox] told me he had come up 

to North Carolina to sell [cocaine], . . . and he brought me 

back $96,000 to give my boss.”). For his part, Cox’s testimony 

corroborates that he interacted with Rojas-Diaz and Castillo 

separately.

The government points to portions of Cox’s testimony that 

suggest Rojas-Diaz and Castillo communicated with each other at 

various times. See, e.g., J.A. 295 (“I told [Rojas-Diaz] that 

had he talked to Papa lately and he said – one time he said 

yeah.”). Based on those portions of the trial testimony, the 

government argues that Rojas-Diaz and Castillo remained in 

constant contact about their drug trafficking affairs. The

cited conversations, however, concern discrete issues, such as 

ancillary deals involving drugs, Cox’s arrest, and money or 

drugs that Rojas-Diaz supposedly owed Castillo. The 

conversations do not demonstrate that Rojas-Diaz and Castillo 

engaged in high-level discussions about the drug trafficking 

enterprise, and certainly not about the disposition of the 

proceeds earned from their activities as narcotics traffickers.

Put simply, there is no evidence of a tacit agreement 

between Rojas-Diaz and Castillo to purchase the Fleetwood 

trailer; nor is there evidence that Castillo participated in (or 

even knew about) its purchase. The record before us undoubtedly 
17

shows that Rojas-Diaz and Castillo dealt extensively with drugs

pursuant to their agreement to do so. It does not, however,

show that they conspired to launder the $19,010 specifically 

charged in the indictment. Cf. United States v. Green, 599 F.3d 

360, 372 (4th Cir. 2010) (“[I]t is no exaggeration to observe 

that, given the manner in which the two overlapping conspiracy 

counts have been framed in the case before us, virtually all of 

the evidence presented in support of the drug conspiracy count 

prosecuted pursuant to 21 U.S.C. § 846 was potentially probative 

of [the defendant’s] alleged involvement in the money laundering 

conspiracy prosecuted pursuant to 18 U.S.C. § 1956(h).”).

Indeed, Castillo does not enter the scene as described in the 

second superseding indictment until after the trailer arrived at 

his house, long after any conspiracy involving the purchase of 

the trailer would have ended and after the money had already 

been laundered. There is no evidence that he directed the money 

laundering, caused it to be directed, or knowingly joined in the 

effort to do so.

For these reasons, Rojas-Diaz’s conviction for money 

laundering conspiracy is not supported by substantial evidence;

the district court erred when it denied the motion for judgment 

of acquittal as to that count of the second superseding

indictment.
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III.

Rojas-Diaz also challenges his substantive money laundering 

conviction, arguing that, in turning over the $19,010 to Cox, 

then a government agent, the crime was never completed. He 

also asserts multiple errors in the jury instructions. RojasDiaz specifically argues that the district court (1) did not 

properly instruct that a defendant cannot conspire with a 

government agent; (2) failed to instruct the jury on the 

willfulness element of a conspiracy; and (3) improperly 

instructed the jury on concealment money laundering when 

promotional laundering was charged in the second superseding 

indictment. We have fully considered these other assignments 

of error and find they lack merit.

IV.

For the foregoing reasons, we reverse in part the denial of 

the motion for judgment of acquittal, vacate and remand for 

entry of an amended judgment of acquittal on the money 

laundering conspiracy charge, and otherwise affirm the 

judgment.

AFFIRMED IN PART, REVERSED IN PART,

AND VACATED AND REMANDED WITH INSTRUCTIONS
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SHEDD, Circuit Judge, concurring:

I concur in judgment of the court. I write separately about 

the reversal of Rojas-Diaz’s conviction on Count 4, an outcome 

that likely will not alter his term of imprisonment, to 

articulate my view of the appropriate analysis of the money 

laundering conspiracy. In my view, the sufficiency of the 

evidence on Count 4 turns on whether, viewing the evidence in 

the light most favorable to the Government, a reasonable 

inference supports finding that Castillo and Rojas-Diaz 

conspired to use drug proceeds to purchase vehicles—including 

the Fleetwood trailer listed in Count 4—to further their illegal 

drug business. If the Government had proven that Castillo and 

Rojas-Diaz were in such a conspiracy, it would not matter 

whether Castillo had knowledge of the specific plan to purchase 

the Fleetwood trailer. That is, the Government “was not required 

to prove beyond a reasonable doubt [Castillo’s] participation 

[with Rojas-Diaz] in any actual financial transaction knowingly 

using drug trafficking proceeds.” United States v. Green, 599 

F.3d 360, 373-74 (4th Cir. 2010). 

Here, the Government was unable to articulate how such an 

inference arises from the evidence presented. Accordingly, I 

concur fully in the judgment of the court.