## IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_______________

No. 98-10110

_______________



### UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS



### ROBERTO ROBLES, ARTURO HERRERA, and ARTURO GURRUSQUIETTA

,



### Defendants-Appellants.

_________________________

Appeals from the United States District Court

for the Northern District of Texas

(3:97-CR-158-16-P)

_________________________

August 26, 1999

Before JOL LY and SMITH, Circuit Judges

and VANCE, District Judge *

JERRY E. SMITH, Circuit Judge: **

Roberto Robles, Arturo Herrera, and

Arturo Gurrusquietta were convicted under

21 U.S.C. § 846 and 18 U.S.C. § 834(b) of

mari huana distribution and using a

c ommunications device to facilitate a drug

crime. Robles and Herrera were convicted

under 18 U.S.C. § 1956 for money laundering.

We affirm except for Gurrusquietta’s sentence,

which we remand for resentencing.

I.

A. For some tim e, government agents had

been gathering evidence about a s u bstantial

conspiracy in the Dallas area to distrib ute

marihuana imported from Me x ico. Through

the testimony of co-conspirators and law

enforc ement agents, and based on physical

evidence obtained during government searches

a nd surveillance, the government establish e d

that the conspiracy was run by the de la Torre

family.

1.

* District Judge of the Eastern District of

Louisiana, sitting by designation.

** Pursuant to 5 TH C IR

. R. 47.5, the court

has determined that this opinion should not be

p ublished and is not precedent except under th e

limited circumstances set forth in 5 T H C IR

. R.

47.5.4.2

Miguelde la Torre, an indicted coconspirator who pleaded gu ilty before trial,

testified that he headed a marihuana trafficking

organiz at io n based in Dallas. Someone in

Dallas would send money to a runner in

Mexico, who would arrange to buy the

marihuana an d package it for shipment over

the border. Once the marihuana reached

Laredo, Texas, one of three men in d e la

Torre’s organization w o uld receive the

marihuana and tran sfer it to Irving, Texas,

where it w as stored at de la Torre’s stash

house.

Miguel paid the runner in Mexico to

arrange the purcha se and would pay the

person who arranged the border crossing and

woul d pay his three agents in Laredo to

transport the marihuana from the border to

D allas. He usually used one of t hree

companies, Western Unio n, Tex-Mex

Transfer, and Alas International, to pay the

members of his o rganization. At trial, he

identified a number of receipts sho wing

transfers of money for purposes of buying and

distributing marihuana.

When h e had difficulty receiving his

marihuana from Mexico, Miguel testified that

he would purchase marihuana from other

sources. In particular, he identified appellant

Gurrusquietta and his brother Juan as two of

his backup suppliers. He testified that in

March 1997, he made purchases of both 30

po unds and 100 pounds of marihuana fro m

Arturo Gurrusquietta. The third purchase,

consisting of 110 pounds, oc curred in April

1997.

In the course of these transactions, Miguel

had numerous t elephone conversations with

both Gurrusquietta brothers. The government

recorded a number of these conversations and

played them at trial. The taped conversations

established that Art uro and Miguel discussed

amounts of marihuana available for purchase,

the return of bad marihuana, packaging and

shipment problems for the marihuana, the

price, and the payment of money f o r the

marihuana.

Miguel also testified that Robles worked for his organization. Identifying Robles in the

courtroom

, Miguel explained that Robles

co llected money and weighed marihuana.

Robles began working for the organization in

April 1997, after his brother was arrested.

Robles’s duties included repackaging large

bundles of marihuana into one pound units for

resale . He also collected money owed to

Miguel for marihuana, sometimes on his own

and sometimes with M iguel. Again, the

government provided recorded telephone

conver sat ions between Miguel and Robles,

establishing that Miguel gave instructions to Robles about money he needed to collect and

marihuana that needed to be packaged.

Miguel also testified about the role Herrera

played in t he drug organization. Concerned

about police surveillance, Miguel contacted

Herrer a and asked him to see whether the

police were investigating him. He told Herrera

that he was dealing marihuana and that he

thought he was being followed.

Herrera told Miguel that he kne w of

narc o t ics officers he could pay to protect

Mi guel. He suggested that Miguel pay off

four narcotics o ffic ers at $3,000 a m onth.

After speaking with Herrera, Mi guel testified

that he did pay Herrera about $3,000.

Again, the governm

ent offered recorded

telephone conversations that confirm Miguel’s

testimony. In one conversation, Miguel gave

his address, date of birth, and full name to

Herrera so that Herrera could find out whether

Miguel w as the target of surveillance. In

another conversation, Herrera told Miguel the

results of his search and informed Miguel that

people Miguel did business with were under

investigation, and that one of these people was informing the police. In other conversations,

Herrera continued to assure Miguel that if he

paid for protection, he would avoid arrest.

Carmela de la Torre also testif ied,

corroborating much of Miguel’s testimony.

She stated that she was familiar with many of

the participants in the organization, and she

identified Herrera in the courtroom

. When

list ening to taped telephone conversations,3

Carmel a identified Herrera’s voice and was

he ard discussing terms of their police

protecti on payments with him. She also

testified that Miguel would tell her about how

Robles worked for the organization by

collecting money and packaging marihuana. 1

2.

The governmen t presented evidence

describing its surveillance of the de l a Torre

organization. In particular, DEA agent Joe

Ro driguez explained how he followed a

shipment of marihuana from the border to the

de la Torre “stash house” in Angelina, Texas.

After a lawful search, the agents arrested

Aguirre (C a rmela’s boyfriend), Miguel de la

Torre, and another co-conspirator at the

Angelina location.

To link Arturo Gurrusquietta to the de l a

Torre organization, the government presented

Agent John McS w ain, who testified that

agents found out, through their wiretap, that a drug transaction would tak e place on April 8

at the de la Torre residence. They put the

ho use under surveillance and observed the

arrival and then departure of a black Mustang.

They followed the Mustang to another house

and observed a man later identified as Arturo

Gurrusquietta remov e a gym bag from the

Must ang and place it on the porch. A few

minutes later, a silver LeBaron driv en by a

man later identified as Juan Gurrusquietta

arrived

. Taking the gym bag and a cellular

telephone, Arturo Gurrusqu ietta got in the

LeBaron and drove away.

McSwain and other FBI agents followed

the LeBaron on a highway. They cont acted

two Texas Department of Public Sa f ety

o fficers and asked them to conduct a tra ffic

s top. They informed the officers of their

observations and t hat they had reason to

believe narcotics were in the vehicle. The

officers conducted a traffic stop based on the

LeBar o n’s abrupt lane change, then obtained

consent to search the vehicle. The FBI agents participated in the search

and found the gym bag, three cellular

t elephones, and tax returns in the car. Inside

the gym bag, the searchers found $43 ,000

bundled in rubber bands and wrapped in

aluminum fo il and a loaded handgun.

McSwain testified that the packaging of the

money was typical for drug money and that the

cell phones found the vehicle matched numbers

called by me mbers of the de la Torre

organization. Additionally, the search turned

up tax returns for both Gurrusquietta’s.

Arturo Gurrusquietta showed a taxable incom e

of $14,192. This tax return would later prove

significant in Arturo Gurrusquietta’s money laundering charge. 2

1 The court overruled Robles's objection to

this testimony as inadmissible hearsay. 2 Arturo Gurrusquietta moved to exclude

the evidence o btained during this search as

unsupported by probable cause. Without holding

a hearing, the court reviewed the search in camera

and denied the motion.4

Officer Joseph Emmett testified that he

knew Herrera because th e y worked at the

same school. Herrera asked him to check for

the names of people for outstanding warrants. Despite being turned down, Herrera continued

to ask Emmett to check on names.

M uch of the government’s case depend e d

on wiretap and physical evidence. Agent

Arturo Canedo, fluent in Spanish, testified that

he listened to a l l the tapes made in the

wiretaps and translated them into English. He

described how the agents would try to identify

voices based on

t he conversations and the

numbers from whi ch the calls originated.

Other agents testified t hat they seized drug

papers, money transfer recei pt s, scales, and

othe r drug paraphernalia during warrant

searches of seven d ifferent locations. A

number of witnesses testified as custodians of

telephone, pen regi ster, wire transfer, shipping,

and pager records. 3

B.

Thirty-one defendants were indicted for

conspiracy to import and distribute marihuana

i n violation of 21 U.S.C. § 846. None of the

appellants was charged in the second count. Subsequently, the indi ct ment was twice

superseded; the last s uperseding indictment

charged o nly twenty-one defendants and

maintained basic conspiracy charges against all

t hree appellants. Additionally, Robles and

Gurrusquietta were charged with one count,

and Herrera was charged with three counts, of

using a co mmunication device to facilitate a

drug -t rafficking crime in violation of

18 U.S.C. § 834(b).

Herrera was also charged with one count of

accessory aft er t he fact to possession with

intent to distribu t e marihuana in violation of

18 U.S.C. § 3. Herrera was charged with one

count, and Gurrusquietta was charged wit h

two counts, of money

laundering in violation

of 18 U.S.C. § 1956. Gurrusquietta was also charged w it h conspiracy to commit money

laundering in violation of 18 U.S.C. § 1956(h).

A jury found all three appella nt s guilty of

the dr ug conspiracy charges. Robles and

Gurrusquietta we re also convicted of one

count, and Herrera

was convicted of three

counts, of using a c o mmunication device to

facilitate drug trafficking. Herrera and

Gurrusquietta were convicted on their money

laundering counts, and Gur r usquietta was

convicted on his conspiracy to commit money laundering count. Herrera, however, was

acquitted of h is accessory to possession of

marihuana count.

II.

Robles and Herrera (but not Gurrusquietta)

attack the sufficiency of the evidence for their

drug conspiracy convict io ns; Robles and

Herrer a challenge the sufficiency of the

evidence for their use of a co mmunication

device convictions. Herrera challenges the

suffici e ncy of the evidence for his money laundering conviction, and Gurrusquietta

makes a similar challenge to his conspiracy to

launder money conviction ( but not hi s substantive money laundering convictions).

Appellants also allege that several errors

were made at trial. Robles makes several

evidentiary challenges, arguing that Carmela’s

testimony relating Miguel’s description of

Robles’s role was inadmissible hearsay and

that (2) pe n register and wiretap records did

not qualify for the business records exception

to the hearsay rule. He also objects that the

prosecutor’s sta t ement of personal belief in

Robles’s guilt prejudiced his trial.

Herrera attacks the district court ’s refusal

to sever his trial from the co-defendants’. He

also a lleges error occurred when the court

refused to allow h im t o call certain witnesses

and to cross-examine cert ain government

witnesses. Relatedly, Herrera attacks his trial

counsel for allegedly rendering ineffective

assistance by

failing to move for a judgment

of acquittal at the clo se of evidence.

Gurrusquietta argues that the court reversibly

erred in failing to suppress evidence obtained

during the April 8, 1997, traffic stop, because 3 Robles challenges the admission of this

evidence under the

business records exception to

the hearsay rule, arguing that the government laid

insufficient foundation.5

the warrantless search was not sup ported by

probable cause.

Robles and Gurrusquietta c hallenge their

sentences. Robles argues that the court clearly

erred when it enhanced his sentence for use of

a firearm and at t ributed 1,000 pounds of

marihuana to him. Gurrusquietta points o ut

that there is no evidence that he was involved

in the distribution of the 1,000 kil ograms

attributed to him.

We aff irm t he sufficiency of the evidence

for all of the convictions and affirm all the trial

rulings. W e dismiss, without prejudice,

Herrera’s claim of ine ffective assistance of

counsel. We affirm Robles’s sent encing

enhancements, but we reverse and remand the

calculation of the amounts of marihuana

attri buted to Gurrusqui etta.

A.

When reviewing a cha l lenge to the

sufficiency of the evi dence, we review the

evidence and all inferences reas o nably drawn

from it in the light most favorable to the

verdict. G lasser v. United States

, 315 U.S. 60

(1942). The conviction must be affirmed if

any rational trier of fact could have found the

essential elements of the charged of fense

beyond a reasonable doubt. J

ackson v. Virginia , 443 U.S. 307 (1979). 4 1.

To convict of conspiracy under § 846, the

government must prove b eyo nd a reasonable

dou bt (1) the existence of an agreement

betwee n two or more persons to violate a

federal drug statute; (2) that each conspirator

knew of the conspiracy; ( 3 ) that each

conspirator intended to join the conspiracy;

and (4) that each conspirator did participate in

the conspiracy. U

nited States v. Ramirez

, 145

F.3d 345, 350 (5 th Ci r. 1998). The

government must prove more than knowledge

of a conspi

racy or associati on wi th

conspirators. U

nited States v. Grassi

, 616

F.2d 1295, 1301 (5th Cir. 1980 ). When

combined with other circumstantial evidence,

knowle d ge and association may be used to

prove an agreeme nt t o join a conspiracy. I d.

at 1301-02. Additionally, the government is

not required to prove knowledge of all details

of the conspiracy or each of its members,

provided that the defendant has knowledge of

the essentials of the conspiracy. U nited States

v. Alva rez , 625 F.2d 1196, 1198 (5th Cir.

1980). An agreement may be inferred from a

“concert of action,” voluntary p a rticipation

may be inferred from a “co llocation of

circumstance s,” and knowledge may be

inferred from “surrounding circumstances.”

Espinoza-Seanez, 862 F.2d 526, 537 (5th Cir.

1988).

To establish a violation of using a

communication device to facilitate a drug

felony, the government must prove: (1)

knowing and intentional (2) use of a telephone 4 Robles also invites us to review for

factual i nsufficiency under Tibbs v. Florida

, 457

U.S . 31, 37 (1982). Under a review for f actual

insufficiency, we may reverse if we find the jury’s

verdict against the great weight of the evidence. In

this case, we “sit[] as a ‘thirteenth jur o r’ and

disagree[] with the jury’s resoluti on of the

conflicting testimony.” I

d. at 42. We may reverse

for a new trial if the gover nment is free to seek

another c o nviction and the defendant may again

seek acquittal. In T

ibbs

, the Court reviewed a state

court proceeding in w hich the courts had

unambiguo us authority to grant a new trial for

verdicts going against the great weight of the

evidence.

The authority for federal courts to r everse for

factual insufficiency, however, is based on F ED

. R.

(continued...) (...continued)

C RIM

. P. 33, which permits a district court to set

aside a conviction that is against the weight of the

evidence. S ee United States v. Rob ertson

, 110 F.3d 1113, 1118 (5th Cir. 1997). We review

s uch determinations only for abuse of discretion.

See United States v. Lopez , 803 F.2d 969, 977

(9th Cir. 1986).

Such err or , however, must be preserved by a

motion for a new trial. Because we find the

evidenc e supporting Robles’s conviction both

legally and factually sufficient, we do not have to

consider whether he sufficiently preserved error to

be entitled to this level of review.6

(3) to facilitate a drug felony. U nited States v.

Dixon

, 132 F.3d 192, 200 (5th Cir. 1997).

B ecause the evidence supporti ng the

sufficiency of the drug conspiracy convictions

is almost identical to the evidence supporting

thes e communication device convictions, we

will examine these sufficiency challenges

together.

a.

Robles asserts that the ev i dence only

supports his mere “presence and association”

with Miguel de la Torre, but not that he agreed

to join Miguel’s drug traf ficking conspiracy.

Ins t ead, he claims that he and Miguel spent

time together socially for the purpose of dating

w o men. Even though Miguel testified that

Robles “worked for him,” he also s tated that

Robles would often wait outside when Miguel

went to collect money. Therefore, Robles

argues t hat he never agreed with Miguel that

he wo uld work for him or with the

organization f

o r t he overall objective of

distributing and selling marihuana.

Robles’s argument is unpersuasive. Miguel

testified that Robles would collect money and

repack age marihuana on behalf of the

organization. Miguel’s testimony is

corroborated by recorded conversat ions

between Robl es and Miguel discussing

problems with repackaging, collecting money,

and even the problems of locating a new stash

house. Carmela’s testimony also corroborated

Miguel’s testimony by confirming that Robles

worked for Miguel by collecting money for the

organi zat io n. Robles has offered no basis to

disbelieve Miguel’s and Carmela’s t est imony

as “incredible,” and basic credibility judgments

are left to the jury. Even though Robles’s role

in the conspiracy is relatively minor, he can be

h eld liable for it once it is shown he h a s

volunt a rily agreed to participate. U nited

States v. Gonz ales , 866 F.2d 781, 788 (5th

Cir. 1989).

For similar reas o ns, Robles cannot claim

that he did not know that he was using a

communication device to facilitate a drug

crime. Numerous recorded telephone

conversations showed that he spoke to Miguel

and Carmela about matters at the heart of the conspirac y

, including collecting money, repackaging the mari

h uana for sale, and

finding an adequate stash house. The evidence

is sufficient whether we review fo r legal or

factual sufficiency. Therefore, we affirm

Robles’s conviction of conspiring to distribute

in vio lat io n of § 846 and of using a

communication device to facilitate a drug

crime in violation of § 834(b).

b.

(i)

Because Herrera failed to move for

acquittal at the close of evidence, he did not

preserve h is objection to sufficiency of the

evidence, so we review only for plain error.

We may find plai n error “only when the

appellant shows that (1) there is an error, (2)

the error is plain, and (3) the error affects her

subs t ant ial rights.” U

nited States v. Ravitch,

128 F.3d 865, 869 (5t h Cir. 1997) (citing

United States v. Olano

, 507 U. S. 725, 732

(1993). Even if we find such an error,

however, we will not “exercise [our] discretion

to cor rect such error[] unl ess the error

seriously affects the fairness, integrity, or public reputati on of judicial proceedings.” I d.

“Error is defined as a deviation from a legal

rule in the absence of a valid waiver.” United

States v. Calverley, 37 F.3d 160, 162 (5th Cir.

1994) (en b anc). “Plain is synonymous with

‘clear’ or ‘o bvious’ and ‘at a minimum’

contemplates an error which was ‘clear under

c urrent law’ at the time of the trial.” Id.

Finally, “affecting substantial rights” is

understood to mean that the error “must affect

the outcome of the proceeding.” Id. at 164.

(ii)

Essentially, Herrera claims that he a c ted

only to dupe the de la Torre organization into

paying him money for police protecti on.

There is no evidence that Herrera transported,

sold, distribute d, or bought any marihuana.

The only evidence of his involvement consists

of taped t elephone conversations in which

Herrera told Miguel

t hat the police had

marked an “X ” on the location of his house

and in which he asked for money to bribe

police officers.7

Because there is no e vidence that Herrera

actually acted to gain police protecti on for the

de la Torres, he argues that there is no

evidence he intended to join the drug

conspiracy by paying off police officers or that

he actually

paid any bribes that would

constitute participation in the c o nspiracy.

There is no evidence that Herrera was even in

the position to pay bribes to police officers.

Herrera does not contest t he evidence

supporting the first element for a conspiracy

conviction: There is overwhelming evidence

that a conspira cy to distribute marihuana

existed. Instead, he focuses his assaults on the

last three elemen ts: k now ledge of the

conspiracy, intention to join the conspir a cy,

and participation in the conspiracy. He argues

that the court committed plain error in regard

to each of these latter three elements.

(a)

Herrera asserts that his minimal role in the

conspiracy is akin to that of a passive

“lookout,” and he points us to cases in which

we found insufficient evidence to support

conspiracy convictions for alleged “lookouts.”

For instan ce, we have refused to infer

participatio n in a conspiracy by a defendant

who joined conspirator s at a restaurant and

“seemed very wat chful of the comings and

goings in the restaurant, turning his head from

left to right.” U

nited Stat e s v. Jackson

, 700

F.2d 1 63, 184 (5th Cir. 1983). “Without

evidence that he knew the nature or purpose of

the meeting or even that a large a m ount of

money was present,” we reversed the

conviction. Id. at 185. Herrera’s situation i s not exactly analogous.

While there is n o evidence that he knew the

details or extent of the de la Torre conspiracy,

there is evidence that he knew enough about

their activities to know they would want police

protecti o n. Therefore, unlike the situation in

the “lookout cases” cited by Herrera, there is

no question that he knew the nature and

purpose of the de la Torre conspiracy and that

there was sufficient evi d ence to support the

“kn o wledge” element of his conspiracy

conviction. By asking for (over the telephone)

and accepti ng money

to protect that

conspiracy, He r rera can be inferred to have

known he was taking money from an illegal

drug conspiracy.

(b)

Miguel and Carmela testified that they

believed Herrera was provi ding them with

protecti on from the police throu gh bribes.

Additionally, the government offered the

testimony of a D a llas police officer who

recounted Herrera’s efforts to get him to

search for nam

es of people under

investigation. The jury reasonably could have

inferred that Herrera did intend to pa y bribes

or otherwise provide protecti on to the de la

Torre organization by finding out whether

members of the organization were targets of

police investigations. Therefore, under plain

error review, the government has provided

sufficient evidence to support the “intention”

element of a conspiracy conviction.

(c)

Herrera has a better argument when he

asserts th at there is no evidence of some

further act by him (i.e., paying bribes) to satisfy the “participation” element of a conspiracy conviction. While the evidence

establishes that Herrera asked for (over the

teleph o ne) and received money that he s aid

would be used to bribe officers, he maintains

that the utter lack of evidence that he acted to

do anything means that the “pa rt icipation”

element is not supportable.

Perhaps recogniz ing the force of this

argument, the government claims that merely

accepting the money and promising to provide

police protec t ion gave the conspirators a8

“sense of safety.” By aiding the conspiracy in

this w ay, the government claims, Herrera

“participated” in a way that satisfies the fourth

element of the conspiracy statute.

Irrespective of the validity of this argument,

and even though there was not subs tanti al

evidence regarding Herrera's bribery attempts,

there was ample evidence from which the jury

could infer that he actually had tried to find

out whether Miguel

was under investigation.

Officer Joseph Emmett testified that Herrera

attempted to enlist his aid in ident ifying police

surveillan ce targets. Emmett explained that

Herrera would ask him a couple times a week

to check police records for certain names and

that Herrera would provide Emmett the names

and birthdates of certain individuals. Emmett

further testified that despite his repeated

refusals, Herrera persisted in asking him to do

such checks through the spring of 1997.

We cannot say the jury com mit t ed plain

error when it construed th ese actions as

“participation” for purposes of the conspiracy

charge. We therefore affirm the sufficiency of

evid e nce for Herrera’s drug conspiracy and

communication device convictions, 5 based on

his “participation” in tryi ng to find out

information about his co-con spirators. We

find no plain er ro r and affirm Herrera’s

conviction for conspiracy and communication

device violations.

2.

a.

To convict of money laun dering under

§ 1956, t he government must prove that the

defendant (1) knowingly conducted a financial

transactio n t hat affects interstate or foreign

commerce; (2) which involved the proceeds of

an unlawful activity; and (3) with the intent to

prom ote or further that unlawful act ivit y, or (4) wi t h the intent to conceal the nature,

location, source, ownershi p or control of the

proceeds. U

nited State s v. Garza , 118 F.3d

278, 284 (5th Cir. 1997). The government

argues t hat Herrera’s actions meet these

requirements. Fi rst, the recorded

conversations support the inference that

Herrera accepted $3,000 from the de la Torre

organization, ther eby fulfilling t he “financial

transaction” element. Second, the

conversations revealed tha t Herrera knew

about the de la Torre organization’s illegal

drug trafficking activities, a n d the jury could

have inferred fro m these conversations that

Herrera realized any money he received would

be the proceeds from those illegal activitie s

. Third, Herrera’s conve r sations also revealed

his promise to u se t he $3,000 to bribe Dallas

police officers, thereby fulfilling the “intention

to promote” element.

The government also reiterates that Herrera

did not move for a judgment of acquittal at the

close of evidence an d failed to preserve his

objection to the sufficiency of the evidence for

his money laundering conviction. Therefore,

we review for plain error and will reverse only

if it would be a manifest miscarriage of justice

to allow the verdict to stand. U nited States v. Bailey

, 111 F.3d 1229, 1235 (5th Cir. 1997).

(i)

Herrera claims that the $3,000 he received

from the de la Tor re organi zati on does not

co nst itute a “financial transaction” within the

meaning of § 1956. He poi nts out that the

statute defines a “financial transaction” as “a

transaction which in any way or degree affects

i nterstate or foreign commerce

. . . .”

§ 1956(c)(4)(A). The statute t hen defines a

“transaction” as a “purchase, sale, l o an, pledge, gift, transfer, delivery, or other

disposition” or some action invo lving a

financial institution or its facilit ies. §

1956(c)(3). Therefore, as we have pointed

out, a “financial transaction” must at least be a

“transaction” as defined in § 1956(c)(3). S ee

United States v. Puig-Infante

, 19 F.3 d 929,

938 (5th Cir. 1994).

There is some disagreement over which

transaction

is t he actual “money laundering” 5 Almost all the evidence against Herrera

is based on his recorded conversations with Miguel

de la Torre. His detailed telephone conversations

with Miguel a b out checking his name and social

security number for possible police investigations

suffices to suppo r t his use of communication

device to facilitate a drug crime.9

transaction at issue. Herrera asserts that only

his alleged bribe payments con stitute the

money laundering transaction and that his

acceptance of $3,000 from the de la Torres

should not be co nsidered the “laundering”

transaction. Thus, he argues that the absence

of evidence that any bribe payments were

made is relevant to his mo n ey laundering

conviction.

The statute does not make any distinction,

however, bet ween a party who g ives the

proceeds of an illegal activity and one who

receives them. As we have explained, the

question is whether the “transa ct ion involved

t he proceeds of unlawful activity.” P uigInfante , 19 F.3d at 939. In Puig-Infante

, the defendant received

money in exchange from the sale of marihuana.

This appeared to be a transactio n, but there

was no indication that the money she received

was the proceeds of unlawful activity. She

then t r ansported the money interstate by car.

We held that while the transportati on of

money interstate involved the proceeds of an

unlawful activity, t he act of transporting was

not a transaction for purposes of § 1956. Id.

As we will explain, the jury could infer that

the transfer of $3,000 from Miguel to Herrera

involved the proceeds of an unlawful activity.

The only remaining question, then, is whether

this purely cash transaction meets the

definition of a transaction affecting in terstate

commerce.

Herrera avers that even if his acceptance of

the $3,000 is the transacti o n at issue, the

record is devoid of evidence establishing how

the $3,000 cash payment he received affected

interstate or foreign commerce. He maintains

that the government has failed to meet its

burd e n to show even a de minimis effect on

interstate c o mmerce. S ee United States v.

Westbrook

, 119 F.3d 1176 (5th Cir. 1997).

He points out that in cases in which cou r ts

have affirmed money laundering convictions,

the “launde ring” transactions have at least

been conducted via wire or the mails and that

such money was then d epo sited into bank

accounts. S ee United States v. Alford , 999

F.2d 818, 824 (5th Cir. 1993).

This court has e m

phasized the importance

of the interstate or foreign comme r ce requirement of the financial transac t ion

element. For instance, we refused to allow the

government to meet its “financial transaction”

burden merely by proving that cash was

transported int erstate by an automobile. S ee Puig-Infante

, 19 F.3d at 937. We similarly

refused to permit a jury t o infer a “financial

transaction” from evidence t hat cash was

discovered in a defendant’s home. See United

States v. Ramirez

, 954 F.2d 1035, 1039-4010

(5th Cir. 1992). 6

In neither of these cases, however, was the

reviewing court bound by t h e plain error

standard. Under plain error review, we ask

only if there would be a manife st miscarriage

of justice to allow the verdict to stand. Such

a manifest injustice occurs only if “the record

is devoid of evidence pointing to guilt, or

. . . because the evidence on a key element of the

offense was so tenuous that a conviction

wo uld be shocking.” B ailey

, 111 F.3d

at 1235. Under the limited review allowed by

the plain error standard, t he jury did not

commit plain error by inferring that the cash

transactio n between de la Torre and Herrera

had a substantial effect on interstate commerce

for purpos es o f the financial transaction

element of § 1956.

(ii)

Herrera further argues that the government

did not meet it s burden of proving that he

knew that the money he received came out of

t he proceeds of de la Torre’s drug activities.

The government did not ask Miguel to explain

whether the mone y he used to pay Herrera

resulted from drug proceeds or was generated

through other means. We cannot say,

however, that th ere is plain error in allowing

the inference, from the volum inous evidence

presented about the scale and scope of the de

la Torre organization, that Migu e l and

Carmela generated most of their income from

their drug trafficking business.

(iii)

H errera charges that the absence of

evidence about how he disposed of the money

is fatal to the “intent to prom ote” or “intent to conceal” element. He argues that there is no

evidence that he used the money to prom ote

the de la Torre’s unlawful activity. Indeed, all

of the agents conducting the de la Torre probe

admitted that t hey had no evidence that

Herrera did anything at all with the money he

received. They do point, however, to

Herrera’s statem ents in his recorded

conversations. Herrera characterizes his

statements in these conversations as boasts and

deceptions and argues that those statements

alone are not sufficient to sup po rt his money

laundering conviction.

The govern m ent submitted recorded

conversations in which where Carmela told

Miguel that Herrera had accepted money from

their organization to bribe officers. Under

plain error review, this evidence is sufficient to

support a reasonable jury’s infe rence that

Herrera accepted the money with the intention

of usi ng it to prom ote the drug conspi racy through bribery.

3.

To demonstrat e a c onspiracy to commit

money laundering, the government must prove (1) the existence of a conspiratorial agreement,

(2) one co-conspirator knowingly commits an

overt act by partici

pat ing in a financial

transaction, (3) that the financial transaction

involves the proceeds of an unlawful activity,

and (4) that the conspirator participating in the

transaction had the intent to prom ote or

further that unlawful activity. U nited States v.

Fierro

, 38 F.3d 761, 768 (5th Cir . 1994).

Altern at ively, a conspirator may be held

responsible if he had the intent to conceal o r disguise the nature, the location, source, ownership, or control of the proceed s of

specified unlawful activity. § 1956(a).

Gurrusquietta does not challenge his

substantive money laundering convict ion.

Instead, he argues that the government did not

present sufficient evidence to support hi s

conviction for conspiring to commit money laundering. Specifically, he assert s that the

government never showed tha t he agreed to

join in a money laun dering conspiracy. At

best, he claims that the government has only

shown that he associated with individuals who 6 In a simil ar case, the Tenth Circuit

refused to allow the government to establish an

interstate commerce nexus based on a purely cash

transfer. The court chided the government because

it “did not introduce a shred of evidence showing

the origin or destination of the specific $200 in

Federal Res e rve Notes that constituted the single

alleged money laundering transaction.

. . .” U nited

States v. Grey

, 56 F.3d 1219, 1225 ( 10th Cir.

1995).11

received money via wire transfers from Texas

to Mexico. A person’s close association with

a conspirator is not enough to prove hi s

intentional and knowing participation in the

conspiracy. U

nited States v. Magee

, 821 F.2d

234, 238 (5th Cir. 1987).

Essentially, the governm e nt need only

establish that Gurrusquietta agreed to be part

of a conspiracy that would con duct financial

transactions with the proceeds from illegal

actions in furtherance of the conspiracy. The

evidence establishes that Gurrus quietta had

been a supplier to the de la Torre organization

since 1994 and knew the organization used

wire payments to a gents in Mexico to

purchase marihuana.

These payments o ver the wires meet the

fi nancial transaction element of § 1956, and

the use of money from the distributio n of

drugs in Dallas satisfied the “illegal proceeds”

element. The evidence also supported an

inference that the mone y was used for the

purpose of purchasing marihuana, thereby

sat isfying the “promoting in furtherance of the

conspiracy” element.

Gurrusquietta’s clai m that he merely

associated with the conspirators is misleading.

The jury was entitled to infe r from (1) his

substantial involvement in t he supply of

marihuana to the organ izat ion and (2) his

brothe r’s agreement to send $15,000 to

Mexico for marihuana purchases that he

agreed to participate in the money laundering

conspiracy.

B.

Appellants allege that the district court

made a number of prejudicial errors. Specifically, Robles attacks th e admission of

Carmela’s testim

o ny and the admission of

telephone and pen register records

authenticating the wiretapped conversations.

Herrera alleges that the court erred by refusing

(1) to allo w witnesses to testify whether any

officers had been bribed; (2) to allow Herrera’s

counsel to cross-examine federal agents; and

(3) to sever Herrera’s tri al from that of the

other conspirators. Herrera also invites us to

review, on d irect appeal, the effectiveness of his tr ial counsel. Gurrusquietta raises a

challenge to the admission of evidence seized

during the April 8, 1997, traffic stop.

1.

a.

We review the admission of evidence for

abuse of discretion. See United States v.

Coleman , 997 F.2d 1101, 1104 (5th Cir.

1993). Even if such an abuse occurred, we

wi l l not reverse unless the error had a

“substantial and injurious effect or influence in

determining the jury’s verdict.” L o w ery

, 135

F.3d 957, 959 (5th Cir. 1998).

Carmela de la Torre testified that Miguel

told he r that Robles worked for their

organization. Specifically, she explained that

Miguel would t ell her that he needed to

borrow the ca r to go with Robles to collect

payments from drug sales. Id. R obles

object ed to this testimony as inadmissible

hearsay.

Rule 801(d)(2)(E), F ED

. R. E VID

., permits

the admission of a “statement of a conspirator

of a party during the course and in furtherance

of the conspiracy.” To introduce such

statements, the government must demonstrate

by a preponderance of the evidence that the

spea ker made the statement in the course of

the conspiracy and in furtherance of it. U nited

States v. Narviz-Guerra , 148 F.3d 530, 536

(5th Cir. 1998).

Ther e is no doubt that Carmela, Miguel,

and Ro bles were members of a conspiracy.

Carmela se r ved as a telephone contact point

and would need t o know who was

participating in the organization. Additionally,

she te st ified that Miguel told her about

Robles’s role in the context of explaining why

he was borrowi ng the car. This testimony

seems to satisfy the re quirem ent that the

statement be made in the furtherance of the

conspiracy, because Miguel explained that he

needed the car to go and colle ct money from

drug sales. The court did not abuse its

discretion in admitting this testimony under the

rule 801(d)(2)(E) co-conspirator exception to12

the hearsay rule. 7

b.

Robles objects to the admission of “pen

register” and wiretap o rders from the

Southwestern Bell Company(“SWB”), arguing

that the government did not lay sufficient

foundati o n to admit them under the business

records excepti on t o the hearsay rule. S ee

F ED

. R. E VID

. 803( 6). The rule requires the

government to lay foundation for business

re co rd evidence through the testimony of a

witness who can attest to the procedures used

to create and maintain the records w it hin the

busi ness. United States v. Hutson

, 821 F.2d

1015, 1020 (5th Cir. 1987). Robles charges

that Mary Powell, a witness from the parent

company (“SBC”), was a custodian who could

certify that the records were correct.

Powell was an employee of SBC and

worked in an office specializing in complying

with “co urt orders.” She testified that the

records were created by an employee of SWB

in the regular course of busin ess and that she

personally maintained many of the records in

her office. Although she did not personally

create the records used in evidence, her

testimony confirmed that t he procedures for

maintain ing the records submitted into

evidence occurred in the reg ular course of

business. This testimony is sufficient to qualify

for the rule 803(6) exce pt ion to the hearsay

rule. See Hutson , 821 F.2d at 1020.

c. During her closing argument rebuttal, the

prosecutor said, “Members of the jury, the five

individual s t hat are before y ou today are

involved in dr ug dealing in one way or

another.” According to Robles, t his is a

statement of personal belief regar d ing guilt

that deeply prejudiced his case.

A prosecutor may not personally vouch for

the credibility of witnesses, but he may argue

reasonable i nferences drawn from the

evidence. U

nited States v. Mu noz , 150 F.3d

401, 414-15 (5th Cir. 1998). The prosecutor’s

s t at ement here could be reasonably inferred

from the evidence she presented and does not

vouc h for the credibility of any witness.

Moreover, Robles does no t show how this 7 Moreover, even if the admission was in

error, Robles has not shown that the statement

substantially influenced the verdict. After all, the

government introduced evidence of Robles’s

conversations with Miguel discussing various

matters related to the drug-trafficking sch eme, including (1) the status of payment collections; (2)

the packaging of marihuan a for sale; and (3) new

location s for a stash house. This evidence would

re nder the admission of Carmela’s testimony

harmless.13

brief statement prejudices any of his substantial

rights to a de g ree meriting reversal. The

government offer e d substantial evidence,

includi n g recorded conversations in which

Robles discussed drug-traf ficking matters, to

support his conviction. It is hard to see how

this statement could have made a difference in

the verdict.

2.

a.

Herrera sought t o present witnesses who

would testify that no police officers ha d been

bribed as a result of his payments. He

petitioned the court to allow the Dallas police

chief or deputy chief to testify that no evidence

of bribe s had been found as a result of an

inte rnal investigation. The government

objected, and the district court excluded these

witnesses, ruling that their tes t imony was

irrelevant and would not serve to impeach any

government witnesses: “I don’t believe that’s

relevant to any issue in the case other than you just want to establish nobody was bribed, and

nobody said that anybody was bri b ed. I just

don’t see—that’s not an element of an yt hing

that’s been charged.”

Herrera responds that the issue of whether

he bribed anyone is relevant to the “financial

tran saction” and “furtherance of unlawful

conduct” element of his mo ney laundering

charge. As we have stated, the “financial

transaction” element at issue is not Herrera’s

alleged bribe payments. Rather, for purposes

of the financial tran saction element of his

mone y laundering conviction, Herrera’s

receipt of the $3,000 in illegally generated

proceeds from th e de la Torre organization

fulfills that element of the statute.

It is true, however, that whether Herrera

actually paid the bribes is relevant to whether

he “intended to prom ote unlawful conduct” for

purposes of § 1956. Therefore, the district

court erred when it ruled that whether any

officer was brib ed is “not an element of

anything that’s been charged.”

We mus t still consider, however, whether

the excluded testimony prejudiced Herrer a’s

defense to such a

degree requiring reversal. The g overnment did not have to prove that

Herrera actually paid the bribes t o the pol i ce

officers. Rather, the statute simply requires

the jury to find that Herrera accepted the

$3,000 “with the intent to prom ote the

carrying on of specified unlawful activity,” i.e.,

the drug-trafficking conspiracy.

The governme nt offered substantial

evidence, i n the form of recorded

conversations between Miguel and Herrera,

establishing that Herrera promised M iguel to

use the $3,000 to pay o ff police officers.

Given the strength of this evidence supporting

the jury’s finding that Herrera intended to pay

b ribes, we do not think the exclusio n of

witnesses testifying that no actual bribe

payments were made could have substantially

affected t he jury’s determination. Therefore,

the court did not commit reversible error when

it excluded Herrera’s profferred witnesses.

b.

Herrera also sought to cross -examine

federal agents about statements Herrera made

at the time of arrest. In those st atements,

Herrera explained that he had made up his

bribery stor y to get money from Miguel and

that h e had taken no action to pay bribes to

police officers. The government filed a motion

in l i mine to exclude this evidence as inadmissible hearsay.

The co urt asked Herrera to present an

applicable exception to the hearsay rule that

would allow Herrera to cross-examine the

witnesses about his post-arrest statements.

Herrera offered none. Without a valid

exception to the hearsay rule, officers

testifying about Herrera’s statements to them

would be testifying about an “o ut o f court

statement” o ffered for the truth of the matter

asserted. Therefore, the court did not abuse

its “wide latitude to impose reasonable limit s

on cro ss-examination” when it refused to

admit hearsay evidence at trial.

c.

Herrera claims he should have been granted

a severance. Rule 8(b), F E D

. R. C RIM

. P.,

a l lows a court to join defendants in the same

indictment “if they are alleged to have14

participated in the same series of acts or

transactions constituti n g an offense or

offen ses.” To protect defendants, however,

F ED

. R. C RIM

. P. 14 authorizes a severance if

it appears the defendant “is prejudiced by a

join der o f offenses or of defendants in an

indictment.” A court should use rule 14 only

“if there is a serious risk that a joint trial would

compromise a specific trial right of one of the

defendants, or prevent the jury from making a

reliable judgment about guilt or innocence.”

Zafiro v. United States , 506 U.S. 534, 539

(1993). We review denial of a severance for

abuse of discretion. U

nited States v. Pofah l

, 990 F.2d 1456, 1483 (5th Cir. 1993).

Herrera avers that he was highly prejudiced

as a result of b e ing tried with twenty codefendants against whom the government provided wiretapped conversations depi c ting

their involvement in the drug trafficking

conspiracy. Essentially, Herrera argues that

the cumulative effect of being tried with

individuals who have been directly implicated

in the drug conspiracy highly pr ejudiced his

abilit y to highlight his own very dif ferent

alleged role in the conspiracy.

Herrera’s generalized claims of prejudice

d o not show reversible error. The Zafiro

Court did state that “[w]hen many defendants

are tried together in a co mplex case and they

have markedly different degrees of culpability,

[the] risk of prejudice is heightened,” Zafiro

, 506 U.S. at 539. The case cited as an example

of this kind of prejudice involved a single trial

of thirty-two defendants who themselves were

part of eight different conspiracies. See

Kotteakos v. Uni ted States , 328 U.S. 750

(1946).

Here, however, the gov e rnment alleged

only one conspiracy and only one organization

of drug conspirators. Herrera dealt direct ly

with the head of this or ganization and

discussed matters related to protecting a single

form of drug trafficking.

Additionally, the Zafiro Court emphasized

that though courts may determine that separate

trials are necessary, “less dra st ic measures,

such as limit

ing instructions, often will suffice to cur e any risk of prejudice.” Z afiro

, 506 U.S. at 539 (citing Richardson v. Marsh

, 481 U.S. 200, 211 (198 7)). The Court then

found no abuse of discretion i n a denial of

severance, even where each defendant had

accused the other defendant of the crime. The

Zafiro C ourt concluded that with the proper

instructions, the ju ry could give separate

consideration to each individual defendant

without prejudicing hi

s co-defendant where the

government offered evidence supporting guilt

for all the defendants. See id. at 541.

In the instant case, the court gave a limit ing

i nst ruction telling the jury to consider each

defendant’s guilt separately without imputing

the guilt of one defendant to another.

Following Zafiro

, and in the absence of a more specific example of prejudice, we defer to the

district court’s sound discretion over motions

for severance. 8

d.

Herrera’s coun sel did not move for

judgme nt o f acquittal at the close of all the

evidence. Therefore, he did not preserve

Herrera’s objections to the sufficiency of t he

evidence for his conspiracy, telephone use, and

money laundering convictions. On the basis of

this failure alone, Herrera’s appe l late counsel

asks this court to find that Herrera received

ineffective assistance of counsel pursuant to

Strickland v. Wash ington , 466 U.S. 668

(1984). Following Washington , we will not

reverse bas ed o n an ineffective assistance of

counsel claim un less (1) the counsel’s

performance is deficient and (2) the errors are

so prejudicial as to deprive the defendant of a

fair trial. B elyeu v. Scott

, 67 F.3d 535 (5 t h

Cir. 1995).

8 Herrera does point to United Stat es v.

Cortinas , 142 F.3d 242 (5th Cir. 1998), in which

we re ver sed a denial of severance where the

government had introduced, against co-defendants,

“highly inflammatory evidence” of a shooting of a

14-year-old boy. Id. at 248. No such similarly

“infl a mmatory” evidence was offered here that

might ha ve enr aged the jury and motivated it to

impute guilt to unrelated co-defendants.15

“The general rule in this circuit is that a

claim of ineff

ective assistance of counsel

cannot be resolved on direct appeal when the

claim has not been ra ised before the district

court since no opportunity existed to develop

the record on the merits of the allegations.”

United States v. Higdon

, 832 F.2d 312,

313-14 (5th Cir. 1987). Review is undertaken

o nly when the record allows a fair evaluation

of the claim. Id.

Herrera claims that his trial counsel’s failure

to move for acquittal at the close of evidence

is obvious from the record and adequately

developed for review. Still, we have allowed

these t ypes of claims on direct appeal only in

cases in which the trial attorney had been given

a chance to resp o nd to the allegations 9 or

where government conduct was allegedly

responsible fo r the ineffective assistance. 1 0

Herrera’s trial counsel has not been given the

opportuni ty to explai n his alleged error, and

there is no evidence t o consider in the

ineffective assistance of counsel record other

than the mere failure to move for an acquittal.

This is hardly a developed record.

Accordingly, we dismiss t h e ineffective

assistance claim without prejudice.

3.

Gurrusquietta challenges the f ailure to

su p press evidence seized during the police

search of his car on April 8, 1997. He was

observe d by federal agents picking up a gym

bag from a car that had previously been at the

de la T o rre residence. The agents then

followed him on the highway, contacted state

police, and asked them to stop him for a traffic

violation.

After stopping him pursuant to a tra f fic

violation, the police asked for and received

consent to search the car. Gurrusquietta now

claims that because the state police offi cers

would not have stopped him but for the federal agent int ervention 

### S S and because the federal

agents themsel ves did not have sufficient

probable c ause 

### S

S the court should have

suppressed all evidence from this search.

A warrantless arrest must be supported by

probable cause. U

nited States v. Shugart

, 117 F.3d 838, 8 46 (5th Ci r.), c ert. denied

, 118 S. Ct. 433 (1997). Probable cause exists

when the totality of fac t s and circumstances

wi t hin a police officer’s knowledge at the

moment of arrest are sufficient for a

reasonable person to conclude that the suspect

had committed, or was in the proces s of

committing, an offense. I d. Because we find

that the challenged search w as consented to

after a legitimate traffic stop, we do not

consider whether probable cause existed to

sustain a warrantless search.

The police testified that they stopped

Gurrusquietta’s vehicle because it was following a vehicle too closely, then swe rved

and almost hit a pol

ice car. The government

claims that, having been lawfu lly stopped,

Gurrusquietta consented to the search, thereby

obviating the probable cause requirement.

Gurrusquietta does not contest that he was stopped pursuant to a legitimate traffic stop or

that he consented t o the search. Rather, he

conten ds that probable cause was still

necessary, because the state police would have

never stopped him were it not for the

suspicions of the federal agents. In other

words, because the traffic stop was motivated

by federal agen t s’ suspicions of a drug

transaction, the stop itself must be sup ported

by probable caus e t o pass muster under the

Fourth Amendment.

Unfortunately for Gurrusquietta, we have

upheld a search conducted pursuant to a traffic

stop motivated by su spicions but not

suppor t ed by probable cause. Because we

review only the objec t ive reasonableness of a search, we will not consider t he subjective

motives of the officer conducti ng t he search.

See United States v. Castro

, 166 F.3d 728,

734 (5th Cir. 1998) (en banc).

In Castro

, we upheld a s earch conducted 9 United States v. Phillips

, 664 F.2d 971,

1040-42 (Former 5th Cir. Dec. 1981).

1 0 Unite d States v. Martinez-Perez , 941

F.2d 295, 301-02 (5th Cir. 1991).16

after a legitimate traffic stop, even though the

government adm

itted that the stop had been

motivated by suspicions of drug t rafficking.

Therefore, t his court squarely rejected the

view advanced by Gu rrusquietta here (and in

the Castro panel opinion) that because the

traffic stop was a “ruse,” any sub sequent

search had to be supported by probable cause.

Castro , 166 F.3d at 734.

For this reason, the district court did not err

when it refused to suppre s s evidence seized

during the April 8 search of Gurrusquietta’s

c ar. The traffic stop was legitimate, and the

subsequent search was conducted only after

the officers received the consent of the

passengers. No probable cause was needed to

support this search.

D.

We review the application of sentenci n g guidelines to factual findings and the factual

findings themselves for clear error. In making

findings of fact for se nt encing purposes, a

court need only be co n vinced by a preponderance of evidence. S hugart

, 117 F.3d

8 38, 848 (5th Ci r.), c ert. denied

, 118 S. Ct.

433 (1997).

1.

Robles’s sentence was enhanced two levels

pursuant to U.S.S.G. § 2D1.1(b)(1) for

possessing a dangerous weapon. Robles

argues that there is no evidence that he

possessed any weapon at al l, much less one

that was connected to the drug conspiracy.

We review this fr o ntal assault on factual

findings for clear error.

Th e district court relied primarily on

recorded conve rsations in which Robles

recounted stories about using a firearm during

drug tra nsactions. These conversations also

revealed Miguel de la Torre's instructing

Ro bles to purchase a firearm for use during

drug t ransactions. The court also enhanced

Robles’s sentence because an empty gun box

with ammunition was found at his home.

Robles responds that he was only bragging

about using a gun during the recorded

conv e rsations and that there is no evidence that he actually used a gun as part of the drug

conspiracy. Under the clear error standard of

review, though, the cou rt was entitled to

disbelieve Robles’s “I was just bragging”

defense. We affirm the two-level gun

enhancement.

2.

a. According to U.S.S.G. § 1B1.3, a

defendant is liable for the amount o f drugs

reasonably foreseeable to him during the life of

the conspiracy. The court accepted the PSR's

calculation that Robles should be attributed

1,000 pounds of marihuana.17

The PS R made this calculation in an

unusual manner. First, it relied on Miguel de

la Torre’s testimony t hat his organization

moved between 20,000 to 25 ,000 pounds of

m arihuana during a 78-week period. More

specifically, the PSR foun d t hat Miguel had

sold and distributed about 1,000 pounds of

marihuana between April 14 and May 9, 1997,

thus averaging about 250 kilograms a week.

Becaus e t he PSR found that Robles worked

closely with Miguel over the last two months

of the conspiracy, the PSR found that Robles

should be attributed at least 1,000 pounds for

this period, because all the drugs moved by the

org a nization were reasonably foreseeable to

him.

Robles replies that it is improper to average

the marihuana moved over the 78-week period

to calculate the amount attributable during the

last two months, because Miguel made far

fewer transactions during that period. In fact,

Robles claims th e re is no evidence that any

marihuana transactions occurred during the

period cited by the PSR.

According to the PSR, however, the final

amount attributed to Roble s was based on

“further in vest igation by case agents” rather

t han on simple averaging. In its init ial

recommendation, the PSR noted that it had

calculated the amounts attributable to Robles

b ased on “wire communications, video and

physica l surveillance, debriefings with codefendants, arrest and seizure of money and

wire transfer records.” We infer t hat the

PSR’s reference to “further investigation” in

the ad dendum means that the PSR’s 1,000-

pound calculation is based on more than mere averaging. Therefore, the court did not

commit clear error when it adopted this

section of the PSR.

b.

Gurrusquietta was held r e sponsible for

m ore than 1,000 kilograms of marihuana,

subjecting him to an enhanced sentence requiring a 240-month mand a tory minimum.

The evidence at trial and in the PSR, however,

plainly stated Gurrusqui etta was onl y responsible for 668.15 kilograms. The government concedes this is clear error

and requests a r emand for resentencing. We

therefore vacate Gurrusquietta’s sentence and

remand for resentencing under a guideline

range consistent with the amounts attributed to

him.

The judgments of conviction and sentence

are AFFIRMED, except that Gurrusquietta’s

sentence is VACATED and REMANDED for

resentencing.