1 District Judge of the Eastern District of Texas, sitting by

designation. UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 93-1445

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

RUBEN PALACIOS a/k/a "Tapon", OSCAR JAVIER PEREZ,

RAMIRO ENRIQUEZ, and ABEL EDUARDO JIMENEZ-LOPEZ

a/k/a Lalo & Changa,

Defendants-Appellants.

No. 93-1617

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

BETTY BIGGINS and CLYDE BIGGINS,

Defendants-Appellants.

Appeals from the United States District Court

for the Northern District of Texas

(3:92-CR-279-R(12))

(June 1, 1995)

Before BARKSDALE and PARKER, Circuit Judges, and COBB 1

, District2 Local Rule 47.5 provides: "The publication of opinions that

have no pre cedential value and merely decide particular cases on

the basis of well-settled principles of law imposes needless

expense on the public and burdens on the legal profession."

Pursuant to that Rule, the court has determined that this opinion

should not be published. Judge.

ROBERT M. PARKER, Circuit Judge: 2

Ruben Palacios (Palacios), Oscar J. Perez (Perez), Abel

Eduardo Jimenez-Lopez (Jimenez), Ramiro Enriquez (Enriquez), Betty

Biggins (Ms. Biggins) and Clyde Biggins (Mr. Biggins) appeal from

final judgments of conviction in a criminal case.

On June 17, 1992, Appellants were indicted along with 28 other

defendants on drug conspiracy charges. The indictment also charged

violations of various substantive offenses, including possession of

controlled substances with intent to distribute and money

laundering. Palacios, Perez, Jimenez and Enriquez were tried to a

jury, while Ms. Biggins and Mr. Biggins were tried to the court

during the same trial.

All Appellants were adjudged guilty on most counts: Enriquez

was acquitted on one count of possession of cocaine with intent to

distribute and Ms. Biggins was acquitted of the conspiracy charge.

Appellants were sentenced to terms of imprisonment ranging from 63

months to 360 m onths. We affirm in part, vacate and remand in

part.

FACTS

Jose Clemente Ortiz (Ortiz) was the leader of a drug

trafficking enterprise with operations prim arily in Laredo and3

Dallas, Texas. The Ortiz organization imported, transported and

distributed large quantities of marijuana and cocaine from Mexico

from 1979 until the date of the indictment. Over the two week

trial, the government presented evidence of many discrete sales and

shipments, each involving one or more of the alleged conspirators,

which will be detailed as necessary in the discussions below.

SUFFICIENCY OF THE EVIDENCE

a. Standard of review

In reviewing the sufficiency of the evidence, we view the

evidence in the light most favorable to and draw all reasonable

inferences in support of the jury's verdict. If a rational trier

of fact could have found the essential elements of the crime beyond

a reasonable doubt, the convictions must stand. United States v.

Cordova-Larios , 907 F.2d 40, 41 (5th Cir. 1990).

b. Jimenez's convictions

Jimenez was charged in three counts of the superseding

indictment. Count 1 charged that he was a participant in a

conspiracy to possess with intent to distribute cocaine and

marijuana. Count 3 alleged that on or about April 14, 1988,

Jimenez possessed in excess of 100 kilograms of marijuana with

intent to distribute. Count 37 alleged that on or about February

18, 1992, he possessed in excess of 100 kilograms of marijuana. He

contends on appeal that the evidence was insufficient to sustain

his convictions for consp iracy or for the substantive possession

charges.4

In a drug conspiracy prosecution under 21 U.S.C. §§ 841(a)(1)

and 846, the Government must prove beyond a reasonable doubt (1)

the existence of an agreement between two or more persons to

violate the narcotics laws, (2) that the defendant knew of the

agreement, and (3) that he voluntarily particip ated in the

agreement. U

nited States v. Maltos

, 985 F.2d 743, 746 (5th Cir.

1992); United States v. Leed , 981 F.2d 202, 205 (5th Cir. 1993).

To susta in a conviction for possession with intent to

distribute, the G overnment must show that the defendant (1)

knowingly (2) possessed contraband (3) with the intent to

distribute it. U nited States v. Villasenor

, 894 F.2d 1422, 1426

(5th Cir. 1990); United States v. Garcia

, 917 F.2d 1370, 1377 (5th

Cir. 1990). Possession of contraband may be actual or

constructive, and may be proven by either direct or circumstantial

evidence. U

nited States v. Vergara

, 687 F.2d 57, 61 (5th Cir.

1982). Constructive possession exists when the defendant has

o wnership, dominion and control over the contraband itself, or

dominion and control over the vehicle in which it was concealed.

U nited States v. Richardson , 848 F.2d 509, 512 (5th Cir. 1988).

The intent to distribute element can be inferred from the

quantity possessed. V ergara

, 687 F.2d at 62. Jimenez does not

challenge the fact that the two loads of marijuana attributed to

him were distribution quantities.

Further, the substantive c ounts of the indictment alleged

guilt by aiding and abett ing. To sustain a conviction of aiding

and abetting under 18 U.S.C. § 2, the Government must show that the5

defendant (1) associated wit h the criminal venture, (2)

participated in the venture, and (3) sought by action to make the

venture succeed. U nited States v. Menesses

, 962 F.2d 420, 427 (5th

Cir. 1992).

Jimenez does not dispute that the government established the

existence of a conspiracy, but rather challenges the sufficiency of

the evidence to establish his knowledge of and participation in the

scheme, or his knowing possession of the marijuana. He points out

that while presence or association with conspirators is one factor

that the jury may rely on, along with other evidence, in finding

conspiratorial activity by a defendant, it is well established that

mere presence at the crime scene or close associati on with

conspirators, standing alone, will not support an inference of

participation in the conspiracy. United States v. Fitzharris , 633

F.2d 416, 423 (5th Cir. 1980), cert. denied , 451 U.S. 988 (1981).

The government's case against Jimenez was circumstantial. While

circumstantial evidence may be particularly valuable in proving the

existence of the conspiracy, this Court will not lightly infer a

defendant's knowledge of and participation in a conspiracy. United

States v. Jackson

, 700 F.2d 181, 185 (5th Cir.), cert. denied

, 464

U.S. 842 (1983).

The testimony at trial established the following:

In early 1988, Ortiz sold about 100 pounds of marijuana to

Daryl Smith (Smith). Ortiz and Smith drove to La Retama, a store

owned by Jimenez, where Ortiz went inside and retrieved a sample

for Smith from "Abel." Smith decided to buy it, and left his truck6

at La Retama to be loaded with the marijuana. Smith came back to

get the truck when a signal w as received that it was ready. The

l oaded truck was left on the rear parking lot at the store, near

the dumpster. In March of 1992, Ortiz again sold Smith marijuana

that Ortiz said he was getting form "Abel" at La Retama. The

transaction was accomplished in a similar way. In Smith's dealings

with Ortiz, Abel's name came up quite a bit.

The first possession count was based on a particular shipment

of marijuana from Laredo to Dallas, made on April 14, 1988. The

drugs were sent via Brown Express under a bill of lading describing

the contents of the c rate as two water pumps. Law enforcement

officers had the crate under surveillance because a d rug dog

alerted on it before it left Laredo. When the crate arrived in

Dallas, Pablo Rodriguez (Rodriguez) came to Brown Express and

claimed it. He loaded it into a pickup truck owned by Jimenez, and

drove to a building that had been the former location of La Retama

and was still owned by Jimen ez. Jimenez, along with three male

passengers, followed the marijuana-laden pickup truck in Jimenez's

Oldsmobile, conducting what the law enforcement officers referred

to as counter-surveillance. When Jimenez realized police were

watching, he took evasive action, eventually driving off at a high

rate of speed. Rodriguez waited at the old La Retama location for

several hours, during which time the Oldsmobile drove by once.

Rodriguez made some phone calls, and eventually drove the pickup

truck to the current La Retama location. While there he spoke with

J imenez's wife and made more phone calls. Eventually, Rodriguez7

was arrested and the truck seized. A plastic bag containing a pair

of sneakers, Rodriguez's wallet and the keys to the truck were

retrieved from Mrs. Jimenez-Lopez.

In addition, there was evidence of seven other such shipments

through B rown Express that were substantially similar to the one

that resulted in Rodriguez's arrest, and some long distance phone

calls between the drivers of two of these shipments and La Retama.

The second possession count was based on an incident involving

586 pounds of marijuana on February 19, 1992. The marijuana was in

a van owned by Jimenez that was parked across from the driveway of

Jimenez's girlfriend's house. On the evening of February 19, a car

owned by Jimenez's girlfriend and driven by a man identified as

Rau l, who had been seen at La Retama, drove up to the van and

Palacios got out. Palacios drove the van and Raul drove the other

vehicle, traveling together. The police stopped the van, Palacios

was arrested and taken into custody, and the van and the marijuana

were seized. A short while later, Raul was stopped in the vicinity

of the La Retama.

After Palacios was arrested, Jimenez had a telephone

conversation with Ortiz which was intercepted by a wire tap. During

this phone call, Jimenez referred to Palacios being in jail "with

500, with the stuff," and the two men discussed t rying to get

Palacios out of jail.

Finally, a search of Jimenez's home yielded a note that said

"no dope on credit," business cards with Ortiz's name and pager

number, and $17,000 in cash. In a search of Jimenez's office at La8

Retama, police seized notes with names and phone numbers for Ortiz,

Enriquez and Palacios.

Jimenez asserts that a rational trier of fact could not have

found beyond a reasonable doubt that he participated in the

conspiracy, o r that he "possessed" the contraband in the two

substantive counts. He relies on arguments that question the

credibility of some testimony, (e.g., Was Jimenez actua lly the

driver of the Oldsmobile doing counter surveillance o n the truck

full of marijuana?) and the inferences drawn from other testimony

(e.g., Did people rep eatedly borrow Jimenez's vehicles, use his

office at La Retama and make calls from his business phone without

his knowledge that they were dealing in drugs?). The cumulative

force of the evidence was sufficient on each count of conviction.

SINGLE OR MULTIPLE CONSPIRACIES

The indictment in this cause alleged a single conspiracy,

headed by Ortiz, existing from March 1988 to June 1992. Enriquez

and Jimenez argue that a material var iance exists between the

offense charged in the indictment and the proof educed at trial,

which reflected multiple conspiracies. The jury was correctly

instructed, both during the trial and in the written charge, that

they could not find the defendants guilty if the proof established

multiple conspiracies. We will affirm the jury's finding that the

government proved a single conspiracy unless the evidence and all

reasonable inferences examined in the light most favorable to the

government, would preclude reasonable jurors from finding a single

conspiracy beyond a reasonable doubt. U nited States v. De Varona

,9

872 F.2d 114, 118 (5th Cir. 1989).

A material variance occurs when there is a variation between

proof and indictment, but does not modify an essential element of

the offense charged. United States v. Thomas , 12 F.3d 1350, 1357

(5th Cir. 1994). A conviction will not be reversed for such a

variance in the evidence unless "(1) the defendant establishes that

the evidence the government offered at trial varied from what the

g overnment alleged in the indictment, and (2) the varianc e

prejudiced the defendant's substantial rights." United States v.

Puig-Infante , 19 F.3d 929, 935-36 (5th Cir. 1994).

In determining whether the government proved a single

conspiracy or multiple conspiracies, two separate tests have been

set forth. In P uig-Infante

, 19 F.3d at 936, the following factors

were held determinative: "1) whether there was a common goal, 2)

the nature of the scheme, and 3) whether the part icipants in the

various dealings overlapped." (citing United States v. Jackson

, 978

F.2d 903, 911 (5th Cir. 1992 )). In T homas

, 12 F.3d at 1357, we

articulated five elements that guide in our determination of this

question: "(1) the time period involved, (2) the persons acting as

co-conspirators, (3) the statutory offenses charged in the

indictment, (4) the nature and scope of the criminal activity, and

(5) the places where the events alleged as the conspiracy took

place." (citing United States v. Lokey

, 945 F.2d 825, 831 (5th Cir.

1991)). Finally, in analyzing whether the nature of a scheme

points to a single conspiracy, we ask whether "the activities of

one aspect of the scheme are necessary or advantageous to the10

success of another aspect of the scheme or to the overall success

of the venture." United States v. Elam , 678 F.2d 1234, 1246 (5th

Cir. 1982).

Jimenez contends that the activities in which he was a

participant were not connected to the other drug transactions

proved up at tria l. He argues that although the nature of the

scheme for each group was to sell co ntraband, one group did not

depend on another.

Enriquez takes a similar position, arguing that the evidence

tied him to a cocaine conspiracy in November 1991 that was

unrelated to the March 1988 - June 1992 conspiracy alleged in the

indictment. Enriquez was the owner of Amigo Paint and Body Shop.

Horacio Gutierrez (Gutierrez), who was hired as the manager of

Amigo Paint and Body in February 1992, testified that Enriquez

bragged to him that he was selling up to 80 kilograms of cocaine a

week. Gutierrez testified that Ortiz, whom they called El Cabezon

or "the big man," was frequently at Amigo Paint and Body Shop and

was supplying Enriquez with the cocaine that he sold. He also

described a trip that Jimenez and Enriquez made to Laredo to pick

up a thousand pounds of marijuana. The deal went sour and Jimenez

kept the whole thousand pounds. Other cocaine dealers testified

that they got cocaine from Raymond Lopez, who was supplied by Ortiz

u p until November 1991, when Enriquez began supplying their

cocaine.

The evidence established that the common goal of all the coconspirators was the sale of marijuana and cocaine. With regard to11

the overlap of participants factor (or the "persons acting as coconspirators" factor in the Thomas test) the evidence supports the

allegation that Ortiz was a central figure, while various

combinations of other defendants furthered his illegal activities

in different ways at different times. The evidence concerning

nature and scope of the criminal activity or scheme (factor (2)

under Puig-Infante , (4) under Thomas ) supports a finding that all

activities charged against all defendants advanced a single drug

distribution network. The relatively lengthy time period, March

1988

- J une 1982, lends itself to the beginning and ending of

multiple conspiracies, and must be closely scrutinized. Government

witness Daryl Smith noted during his testimony concerning the

various people, places, vehicles and oper ating procedures in the

Ortiz organization, "there's nothing consistent in this business."

Nonetheless, the evidence in this case supports a finding of a

single ongoing drug distribution scheme run by Ortiz. Finally, the

c onspiracy charged involved the movement of drugs in wholesale

quantities fr om Laredo, Texas to Dallas, Texas and the redistribution of drugs from Dallas stashhouses. Nothing about the

location of the alleged activities leads us to believe that there

were multiple conspiracies.

Under either the Thomas test or the Puig-Infante test, there

is sufficient evidence to support the jury conclu sion that

appellants were participants in the one conspiracy alleged in the

indictment.

Even if there was more than one conspiracy proven, the3 The essential allegations are:

Laredo indictment

On or about October 10, 1989, in the Southern District of

Texas and within the jurisdiction of the Court,

Defendants Juan Manual Chapa, Rebecca Valenica-Ponce,

Amaro Medina, and Oscar Javier Perez-Ramos did knowingly

and inten tionally conspire and agree together and with

other persons unknown to the Grand Jurors to knowingly

and in tentionally possess with intent to distribute a

quantity in excess of 100 kilograms of marihuana, a

Schedule I controlled substance. [Violation: Title 21,

United States Code, Sections 846, 841(a)(1), and

841(b)(1)(B).]

12 resulting var iance from the indictment is not reversible error

unless the defendants' substantial rights were prejudiced. Since

the evidence in this case was sufficient to prove each defendant's

participation in at least one of many related transactions, we find

that no such prejudice occurred. United States v. Faulkner

, 17 F.3d

745, 762 (5th Cir. 1994).

PEREZ'S DOUBLE JEOPARDY CLAIM

Perez was characterized as a gofer who worked for another coconspirator named Juan Chapa (Chapa), who is Perez's brother-inlaw. All the alleged acts by Perez occurred in 1989. Since late

1989 Perez has been incarcerated in a federal prison for what he

contends is the same conspiracy. That conviction arose out of an

attempt by Rebecca Valencia-Ponce to broker 2 ,000 pounds of

marijuana between an undercover DEA agent and purchasers, which

included Perez and Chapa in Laredo, Texas. Perez, Chapa, and two

other people not included in the present indictment were charged

wi th conspiring together and with "other persons unknown to the

grand jury" to violate 21 U.S.C. § 846. 3Dallas indictment

From at least March 1988, the exact date being unknown to

the Grand Jury, and c ontinuing thereafter until on or

about June 17, 19 92, in the Northern District of Texas

and elsewhere,... 4. Juan Chapa,... 8. Oscar Javier

Perez... defendants, did knowingly, willfully and

unlawfully combine, conspire, confederate and agree

together, with each other and with diverse other persons

k nown and unknown to the Grand Jury, to commit cert ain

offenses against the United States...All in violation of

Title 21 United States Code, Sections 846, 841(b)(1)(A),

and 841 (B)(1)(B).

13 The district court denied Pe rez's motion to dismiss his

conspiracy count on double jeopardy grounds, and ma de findings

pursuant to United States v. Marable

, 578 F.2d 151 (5th Cir. 1978),

whi ch sets out a five factor test identical to the one used in

Thomas

. The court found that the conspiracies covered different

times, the first being a single day, October 10, 1989, the second

covering a four-year period from March 1988 - June 1992. Second,

Perez and Chapa were the only two people who were indicted in both

cases. The district court found,

[s]pecifically, the Laredo indictment does not name Jose

Ortiz who is alleged to be the head of the organization

i n the Dallas indictment. There is no indication that

Ortiz was involved in the incident involved in Laredo and

no indication that he or any of the lieutenants working

under him had any connection with the incident in Laredo.

Third, althou gh both indictments involve alleged conspiracies in

violation of § 846, the court found that the facts underlying the

Laredo indictment wer e not charged in the Dallas indictment, nor

was any evidence concerning that transaction presented in court

during the trial of this case. Fourth, the district court

considered the nature and scope of each indictment: Laredo involved14

a single transaction taking place on a single day, while the Dallas

c a se involved extensive transactions over a four-year period.

Fifth, the Laredo incident was limited to Laredo, while the Dallas

indictment involved a number of l ocations, including Mexico,

Dallas, Laredo, and other places.

Perez contends that the transaction which led to his earlier

conviction was one of the smaller drug deals which made up the

overarching c onspiracy charged in the Dallas indictment. It

occurred during the time alleged in the Dallas indictment. In

fact, it occurred during 1988-89 which is the only part of the

Dallas conspiracy that Perez participated in, d ue to his 1989

conviction. The statutory offenses were the same. The overt act

all eged in the first indictment was possession with intent to

distribute in excess of 100 kilograms of marihuana. No overt act

was alleged in the second indictment, but the evidence at trial

established that the possession and distribution of marihuana and

cocaine were the violations on which that indictment was based.

The sale occurred in Laredo, which is also included in the Dallas

indictment. Finally, Perez contends the difference in players that

the trial court focused on was not a real difference.

There is no dispute that the district court appl ied the

correct legal analy sis and considered the proper factors in

determining whether the present charge violated the double jeopardy

violation. The factual conclusion reached by the court below that

the two charges did not arise out of the same conspiracy is not

clearly erroneous, so we must affirm Perez's conspiracy conviction.15

JURY INSTRUCTIONS ON PEREZ'S MONEY LAUNDERING CHARGE

Perez was charged in count 12 of the indictment with violating

or aiding and abetting in the violation of 31 U.S.C. § 5324(1) and

(3). The evidence showed that he was one of two individuals that

structured a $16,880 transaction by going into two banks on the

same day, each time buying a cashier's check for less than $10,000.

The statutes that Perez was charged with violating, 31 U.S.C.

§ 5324(1) and (3), provide that:

No person shall for the purpose of evading the reporting

requirements of § 5313( a) with respect to such

transaction --

(1) cause or attempt to cause a domestic

financial institution to fail to file a report

required under § 5313(a)...or

(3) structure or assist in structuring, or

attempt to structure or assist in structuring,

any transaction with one or more domestic

financial institution.

The trial court instructed the jury that in order to establish

a violation of 31 U.S.C. § 5324(1), the government must prove:

First

, that the Defendant Oscar Javier Perez

knowing ly and willfully caused or attempted to cause a

domestic financial institution to fail to file a Currency

Transaction Report, IRS Form 4789; and

Second

, that the Defendant Oscar Javier Perez did so

for the purpose of the evading the reporting requirements

of section 5313(a).

The jury instructions articulated the elements of § 5324(3) as:

First

, that the Defendant Oscar Javier Perez

knowingly and willfully structured or assisted in

structuring a transaction involving at least $10,000 in

currency for deposit into a financial institution; and

Second , that the purpose of the structuring was to

avoid the requirement of filing a Currency Transact ion

Report, IRS Form 4789.

"Knowingly and willfully" were defined as "the defendant knew of16

the reporting requirement and spe cifically intended that the

required reports not be filed."

The jury convicted Perez only of aiding and abetting a

violation of § 5324. The district court's charge on aiding and

abetting required proof:

First , that each element of the offenses which the

defendant...is accused of aiding and abetting was

committed by the persons as charg ed in the indictment;

and

Second

, that the defendant...willfully participated

in them, as if it were something that he wished to bring

about.

"Willfully" was defined in the general instruction section of

the charge to mean "that the act was committed voluntarily and

purposely with the specific intent to violate the law."

Perez challenges these jury instructions, relying on the

recent Supreme Cour t decision in R atzlaf v. United States

,

___U.S.___, 114 S.Ct. 655, 126 L.Ed.2d 615 (1994), which held that

in order to convict u nder § 5324, the government must prove that

the defendant knew that stru cturing was unlawful. This case was

tr ied prior to the Supreme Court ruling in R atzlaf and the jury

instructions given were in accord with the Fifth Circuit law in

effect at the time of the trial. Perez did not object to the

charge given or request that the trial court include a Ratzlaf -type

instruction. His failure constitutes a forfeiture of his right to

appeal this issue under F ED

. R. C RIM

. P. 30. See United States v.

Olano

, ___U.S.___, 113 S.Ct. 1770, 1777 (1993). However, if Perez

can show that the charge, as a whole, was so deficient as to affect

his substantial rights, we may nevertheless reverse the conviction.4 Because the complained of charge did not affect Pe rez's

substantial rights, it is unnecessary for us to determine if the

error was "plain" under United States v. Calverley

, 37 F.3d 160

(5th Cir. 1994).

17 Id . at 1778.

The government argues that in convicting Perez of aiding and

abetting, the instruction required the jury to find that he acted

with intent to violate the law, and was therefore c orrect. The

jury was told that it mus t find that Perez acted willfully, and

willfully was defined as acting with "specifi c intent to violate

the law." Although the charge was incomplete under R atzlaf

, we

cannot say it was so deficient that it affected his substantial

rights. 4

Additionally, Perez seeks to extend Ratzlaf to atta ck his

conviction on a money laundering count under 18 U.S.C. §

1956(a)(1)(B)(ii), which prohibits conducting a financial

tra nsaction that in fact involves the proceeds of a specified

unlawful activity knowing that the transaction is designed to

avoid a transaction reporting requirement under s tate or federal

law. This argument has no merit, because mental state required by

t he money laundering statute is knowledge that the transaction

involves proceeds of criminal activity and intent to avoid a

reporting requirement (whether that avoidance carries criminal

penalties or not). The jury was accurately instructed relative to

this charge.

In a re lated argument Perez contends that the evidence was

insufficient to establish that he knew that the money that was the18

subject of his money laundering conviction had come from illicit

drug dealing. This issue was never raised in the trial court, so

this Court need only determine whether there was a plain error

which affected Perez's substantia l rights. U nited States v.

Calverley , 37 F.3d 160, 162 (5th Cir. 1994). After reviewing the

evidence in the record, we find tha t Perez's money laundering

conviction is adequately supported by the evidence and there was no

plain error.

For the foregoing reasons we find that Perez's conviction

for structuring and h is conviction for money laundering must be

affirmed.

BIGGINS'S MOTION TO SUPPRESS

On February 1, 199 2, at 2:40 p.m. a kilo of cocaine was

delivered by a member of the Ortiz conspiracy to the barbecue

restaurant owned by Clyde Biggins. Mr. Biggins was not present at

that time and Betty Biggins was in charge of the restaurant. DEA

agents had th e delivery person under surveillance and within

minutes of the delivery armed law enforcement officers entered and

s ecured the restaurant. They had no search warrant. The police

told Ms. Biggins that the y had information that a cocaine

transaction had just occurred and that she had two choices: she

could either consent to a search or the police could get a warrant.

Betty Biggins responded that she did not think there were any drug

deals going on and the police were free to look around. The police

seized cocaine and $18,000 in currency as a result of the search.

B oth Biggins filed motions to suppress the evidence seized19

during the search. Ms. Biggins testified at the suppression

hearing and denied having ever been asked to consent to a search.

The trial court found that testimony not credible and denied the

motions, finding that Ms. Biggins had given a valid consent to

search. On appeal both Biggins contend that while Ms. Biggins

literally consented, she did so in fear of the officers or in

acquiescence to a claim of authority to search.

Whether the consent to search was voluntary or was the product

of duress or coercion is a question of fact to be determined from

the totality of all the circumstances. S chneckloth v. Bustamonte

,

412 U.S. 218, 227, 93 S.Ct. 2041, 2048, 36 L.Ed.2d 854 (1973). The

trial court's determination that the consent was valid under the

circumstances described by the evidence is not clearly erroneous.

CLYDE BIGGINS MONEY LAUNDERING CONVICTION

The Superseding Indictment charged Mr. Biggins in connection

with the aborted delivery of cocaine with an attempt to transfer

$18,000 knowing that the "property in volved the proceeds of a

specified unlawful activity and which in fact involved the proceeds

of a specifie d unlawful activity, that is, the sale and

distribution of narcotic drugs and controlled substances, with the

intent to promote the carrying on of said specified u nlawful

activity" in violation of 18 U.S. C. § 1956(a)(1)(A)(i). Mr.

Biggins testimony and other evidence suggested that he obtained the

funds through gambling rather than the distribution of drugs. Also

in evidence was testimony that less than one month before the

seizure of the funds, he had bought and then sold a kilogram of20

cocaine, giving rise to an inference that he obtained $18,000 from

his recent sale of the same a mount of the same product. Viewing

the record in the light most favorable to the government, we find

the evidence sufficient to support the trial cou rt's guilty

verdict.

APPLICATION OF SENTENCING GUIDELINES

a. Standard of review.

Jimenez, Enriquez and Palacios all challenge their sentences

based o n the quantity of drugs attributed to them. A district

court's findings about the quantity of drugs involved in an offense

are factual findings subject to a clearly erroneous standard of

review. U

nited States v. Rivera , 898 F.2d 442, 445 (5th Cir.

1990). In resolving any reasonable dispute concerning a factor

important to the sentencing determination, the court may consider

relevant information without regard to its admissibility under the

rules of evidence applicable at trial, provided that the

information has sufficient indicia of reliability to supp ort its

probable accuracy. United Sta tes v. Michael , 894 F.2d 1457, 1459

(5th Cir. 1990).

b. Jimenez and Enriquez

Jimenez's base offense level was calc ulated at 32, based on

the conclusion that he was involved with at least 1,000 kilograms,

but less than 3,000 kilograms of marijua na. S ee U.S.S.G.

2D1.1(c)(6). The district court sentenced Enriquez according to an

offense level of 40 based on a finding that at least 50 kilograms

of cocaine were attributable to him. Jimenez and Enriquez ask us21

to reverse and remand their cases for resentencing because the

court did not make express findings on what drug quantities were

tied directly to them and what drug quantities were attributable to

them as "reasonably foreseeable acts and omissions of others in

furtherance of jointly un dertaken criminal activity." U.S.S.G.

1B1.3(a)(1)(B ). This Court recently remanded a case for

resentencing, instructing the district court to determine (1) when

the defendant joined the conspiracy, (2) what drug quantities were

within the scope of the defendant's conspiratorial agreement, and

(3) of these drug quantities, which were reasonably foreseeable.

United States v. Carreon

, 11 F.3d 1225 (5th Cir. 1994). Such a

remand is unnecessary in this case. The testimony at the sentencing

hearing attributed over 4,204 pounds (1,910 kilograms) of marijuana

directly to Jimenez, without reference to amo unts that were

otherwise foreseeable to him in this conspiracy. Gutierrez's

testimony that Enriquez bragged about dealing 80 kilograms a week,

if credited by the court, was enough to support the "more than 50

kilogram" conclusion that was the basis of Enriquez's sentence. A

Carreon finding is inapposite in these situations.

Jimenez also argues that the trial court erred in enhan cing

his offens e by four levels based on his role as organizer and

leader, under U.S.S .G. 3B1.1(a). The evidence supports the

conclusion that Jimenez dir e cted the activities of Rodriguez,

Palacios and Raul, and that the criminal activity con nected with

this conspiracy involved five or more participants or was otherwise

extensive. This argument has no merit.5 To obtain a base level offense for drug offenses involving

differing dru g types, the Guidelines require the drugs to be

converted to equivalent amounts of marihuana. U.S.S.G. 2D1.1,

comment (n.10)(Nov. 1992). The converted quantities are then

totalled to arrive at the base level offense. Palacios's

presentence report alleged that 100 kilograms of cocaine and 4536

kilograms o f marijuana were attributable to Palacios. Using the

Guidelines' cocaine-to-marihuana conversion factor, 100 kilograms

of cocaine equates to 20,000 kilograms of marihuana.

22 c. Palacios

The district court attributed approximately 24,500 5 kilograms

of marijuana to Palacios. Palacios contends that the record

supports only 15 kilograms of cocaine (counted as 3000 kilograms of

marijuana) and 713 kilograms of marihuana. The government concedes

that the record does not support the trial court finding that

24,536 kilograms of marijuana wer e attributable to Palacios.

However, they contend that we should uphold his sentence because by

making some assumptions about the testimony in the record

(specifically crediting certain allegations in the presentence

report at the high end of the ranges given instead of the low end)

we could find 15,841 kilograms of marijuana. They argue that

because Palacios's offense level was taken from the category that

includes a range of 10,000 to 30,000 kilograms of marijuana, and

the sentence imposed was at the lowest end of the applicable

guideline range, the district court would have imposed the same

s entence even if it had not erred in calculating the amount of

drugs attributa ble to Palacios. We decline to substitute our

judgment for that of the trial court, either in making the factual

determination of drug quantities or in imposing a sentence on the

recalculated amounts. The trial court's factual determination is23

clearly erroneous. The sentence must be vacated and Palacios's

case remanded for resentencing.

CONCLUSION

Having considered the other points of error urged by the

Appellants, we find they have no merit. Palacios's sentence is

VACATED and REMANDED for resentencing. All other convictions and

sentences are AFFIRMED.