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 JOLLY 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

marihuana distribution and using a

communications 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 time, government agents had

been gathering evidence about a substantial

conspiracy in the Dallas area to distribute

marihuana imported from Mexico. Through

the testimony of co-conspirators and law

enforcement agents, and based on physical

evidence obtained during governmentsearches

and surveillance, the government established

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 5TH CIR. R. 47.5, the court

has determined that this opinion should not be

published and is not precedent except under the

limited circumstances set forth in 5TH CIR. R.

47.5.4.
2

Miguel de la Torre, an indicted coconspirator who pleaded guilty before trial,

testified that he headed a marihuana trafficking

organization based in Dallas. Someone in

Dallas would send money to a runner in

Mexico, who would arrange to buy the

marihuana and package it for shipment over

the border. Once the marihuana reached

Laredo, Texas, one of three men in de la

Torre’s organization would receive the

marihuana and transfer it to Irving, Texas,

where it was stored at de la Torre’s stash

house.

Miguel paid the runner in Mexico to

arrange the purchase and would pay the

person who arranged the border crossing and

would pay his three agents in Laredo to

transport the marihuana from the border to

Dallas. He usually used one of three

companies, Western Union, Tex-Mex

Transfer, and Alas International, to pay the

members of his organization. At trial, he

identified a number of receipts showing

transfers of money for purposes of buying and

distributing marihuana.

When he 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

pounds and 100 pounds of marihuana from

Arturo Gurrusquietta. The third purchase,

consisting of 110 pounds, occurred in April

1997. 

In the course of these transactions, Miguel

had numerous telephone conversations with

both Gurrusquietta brothers. The government

recorded a number of these conversations and

played them at trial. The taped conversations

established that Arturo 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 for the

marihuana. 

Miguelalso testified thatRoblesworked for

his organization. Identifying Robles in the

courtroom, Miguel explained that Robles

collected 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 unitsfor

resale. He also collected money owed to

Miguel for marihuana, sometimes on his own

and sometimes with Miguel. Again, the

government provided recorded telephone

conversations 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 the drug organization. Concerned

about police surveillance, Miguel contacted

Herrera 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 knew of

narcotics officers he could pay to protect

Miguel. He suggested that Miguel pay off

four narcotics officers at $3,000 a month.

After speaking with Herrera, Miguel testified

that he did pay Herrera about $3,000. 

Again, the government offered recorded

telephone conversationsthat confirmMiguel’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 was 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 testified,

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

listening to taped telephone conversations,
3

Carmela identified Herrera’s voice and was

heard discussing terms of their police

protection 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 government presented evidence

describing its surveillance of the de la Torre

organization. In particular, DEA agent Joe

Rodriguez 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 (Carmela’s boyfriend), Miguel de la

Torre, and another co-conspirator at the

Angelina location. 

To link Arturo Gurrusquietta to the de la

Torre organization, the government presented

Agent John McSwain, who testified that

agentsfound out, through their wiretap, that a

drug transaction would take place on April 8

at the de la Torre residence. They put the

house 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 remove a gym bag from the

Mustang and place it on the porch. A few

minutes later, a silver LeBaron driven by a

man later identified as Juan Gurrusquietta

arrived. Taking the gym bag and a cellular

telephone, Arturo Gurrusquietta got in the

LeBaron and drove away. 

McSwain and other FBI agents followed

the LeBaron on a highway. They contacted

two Texas Department of Public Safety

officers and asked them to conduct a traffic

stop. They informed the officers of their

observations and that they had reason to

believe narcotics were in the vehicle. The

officers conducted a traffic stop based on the

LeBaron’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

telephones, and tax returns in the car. Inside

the gym bag, the searchers found $43,000

bundled in rubber bands and wrapped in

aluminum foil and a loaded handgun.

McSwain testified that the packaging of the

moneywastypicalfor drug moneyand that the

cellphonesfound the vehiclematched numbers

called by members of the de la Torre

organization. Additionally, the search turned

up tax returns for both Gurrusquietta’s.

Arturo Gurrusquietta showed a taxable income

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 obtained 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 they 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.

Much of the government’s case depended

on wiretap and physical evidence. Agent

Arturo Canedo, fluent in Spanish, testified that

he listened to all the tapes made in the

wiretaps and translated them into English. He

described how the agents would try to identify

voices based on the conversations and the

numbers from which the calls originated.

Other agents testified that they seized drug

papers, money transfer receipts, scales, and

other drug paraphernalia during warrant

searches of seven different locations. A

number of witnesses testified as custodians of

telephone, penregister, wire transfer, shipping,

and pager records.3

B.

Thirty-one defendants were indicted for

conspiracy to import and distribute marihuana

in violation of 21 U.S.C. § 846. None of the

appellants was charged in the second count.

Subsequently, the indictment was twice

superseded; the last superseding indictment

charged only twenty-one defendants and

maintained basic conspiracycharges against all

three appellants. Additionally, Robles and

Gurrusquietta were charged with one count,

and Herrera was charged with three counts, of

using a communication device to facilitate a

drug-trafficking crime in violation of

18 U.S.C. § 834(b). 

Herrera was also charged with one count of

accessory after the fact to possession with

intent to distribute marihuana in violation of

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

count, and Gurrusquietta was charged with

two counts, of money laundering in violation

of 18 U.S.C. § 1956. Gurrusquietta was also

charged with conspiracy to commit money

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

A jury found all three appellants guilty of

the drug conspiracy charges. Robles and

Gurrusquietta were also convicted of one

count, and Herrera was convicted of three

counts, of using a communication device to

facilitate drug trafficking. Herrera and

Gurrusquietta were convicted on their money

laundering counts, and Gurrusquietta was

convicted on his conspiracy to commit money

laundering count. Herrera, however, was

acquitted of his accessory to possession of

marihuana count. 

II.

Robles and Herrera (but not Gurrusquietta)

attack the sufficiency of the evidence for their

drug conspiracy convictions; Robles and

Herrera challenge the sufficiency of the

evidence for their use of a communication

device convictions. Herrera challenges the

sufficiency of the evidence for his money

laundering conviction, and Gurrusquietta

makes a similar challenge to his conspiracy to

launder money conviction (but not his

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) pen register and wiretap records did

not qualify for the business records exception

to the hearsay rule. He also objects that the

prosecutor’s statement 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 alleges error occurred when the court

refused to allow him to call certain witnesses

and to cross-examine certain government

witnesses. Relatedly, Herrera attacks his trial

counsel for allegedly rendering ineffective

assistance by failing to move for a judgment

of acquittal at the close 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 supported by

probable cause. 

Robles and Gurrusquietta challenge their

sentences. Robles argues that the court clearly

erred when it enhanced his sentence for use of

a firearm and attributed 1,000 pounds of

marihuana to him. Gurrusquietta points out

that there is no evidence that he was involved

in the distribution of the 1,000 kilograms

attributed to him. 

We affirm the sufficiency of the evidence

for all of the convictions and affirm all the trial

rulings. We dismiss, without prejudice,

Herrera’s claim of ineffective assistance of

counsel. We affirm Robles’s sentencing

enhancements, but we reverse and remand the

calculation of the amounts of marihuana

attributed to Gurrusquietta. 

A.

When reviewing a challenge to the

sufficiency of the evidence, we review the

evidence and all inferences reasonably drawn

from it in the light most favorable to the

verdict. Glasser 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 offense

beyond a reasonable doubt. Jackson v.

Virginia, 443 U.S. 307 (1979).4

1.

To convict of conspiracy under § 846, the

government must prove beyond a reasonable

doubt (1) the existence of an agreement

between 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. United States v. Ramirez, 145

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

government must prove more than knowledge

of a conspiracy or association with

conspirators. United States v. Grassi, 616

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

combined with other circumstantial evidence,

knowledge and association may be used to

prove an agreement to join a conspiracy. Id.

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. United States

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

1980). An agreement may be inferred from a

“concert of action,” voluntary participation

may be inferred from a “collocation of

circumstances,” 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 insufficiency under Tibbs v. Florida, 457

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

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 juror’ and

disagree[] with the jury’s resolution of the

conflicting testimony.” Id. at 42. We may reverse

for a new trial if the government is free to seek

another conviction and the defendant may again

seek acquittal. In Tibbs, theCourt reviewed a state

court proceeding in which the courts had

unambiguous authority to grant a new trial for

verdicts going against the great weight of the

evidence. 

The authority for federal courts to reverse for

factual insufficiency, however, is based on FED.R.

(continued...)

(...continued)

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

aside a conviction that is against the weight of the

evidence. See United States v. Robertson,

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

such determinations only for abuse of discretion.

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

(9th Cir. 1986). 

Such error, however, must be preserved by a

motion for a new trial. Because we find the

evidence 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. United States v.

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

Because the evidence supporting the

sufficiency of the drug conspiracy convictions

is almost identical to the evidence supporting

these communication device convictions, we

will examine these sufficiency challenges

together.

a.

Robles asserts that the evidence only

supports his mere “presence and association”

with Miguel de la Torre, but not that he agreed

to join Miguel’s drug trafficking conspiracy.

Instead, he claims that he and Miguel spent

time togethersociallyfor the purpose of dating

women. Even though Miguel testified that

Robles “worked for him,” he also stated that

Robles would often wait outside when Miguel

went to collect money. Therefore, Robles

argues that he never agreed with Miguel that

he would work for him or with the

organization for the overall objective of

distributing and selling marihuana. 

Robles’s argument is unpersuasive. Miguel

testified that Robles would collect money and

repackage marihuana on behalf of the

organization. Miguel’s testimony is

corroborated by recorded conversations

between Robles 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

organization. Robles has offered no basis to

disbelieve Miguel’s and Carmela’s testimony

as “incredible,” and basic credibilityjudgments

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

in the conspiracy is relatively minor, he can be

held liable for it once it is shown he has

voluntarily agreed to participate. United

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

Cir. 1989).

For similar reasons, Robles cannot claim

that he did not know that he was using a

communication device to facilitate a drug

crime. Numerous recorded telephone

conversationsshowed that he spoke to Miguel

and Carmela about matters at the heart of the

conspiracy, including collecting money,

repackaging the marihuana for sale, and

finding an adequate stash house. The evidence

is sufficient whether we review for legal or

factual sufficiency. Therefore, we affirm

Robles’s conviction of conspiring to distribute

in violation 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 his objection to sufficiency of the

evidence, so we review only for plain error.

We may find plain error “only when the

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

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

substantial rights.” United States v. Ravitch,

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

United States v. Olano, 507 U.S. 725, 732

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

however, wewillnot “exercise [our] discretion

to correct such error[] unless the error

seriously affects the fairness, integrity, or

public reputation of judicial proceedings.” Id.

“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 banc). “Plain is synonymous with

‘clear’ or ‘obvious’ and ‘at a minimum’

contemplates an error which was ‘clear under

current 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 acted

only to dupe the de la Torre organization into

paying him money for police protection.

There is no evidence that Herrera transported,

sold, distributed, or bought any marihuana.

The only evidence of his involvement consists

of taped telephone conversations in which

Herrera told Miguel that 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 evidence that Herrera

actually acted to gain police protection 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 conspiracy.

There is no evidence that Herrera was even in

the position to pay bribes to police officers.

Herrera does not contest the evidence

supporting the first element for a conspiracy

conviction: There is overwhelming evidence

that a conspiracy to distribute marihuana

existed. Instead, he focuses his assaults on the

last three elements: knowledge of the

conspiracy, intention to join the conspiracy,

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

conspiracyconvictionsfor alleged “lookouts.”

For instance, we have refused to infer

participation in a conspiracy by a defendant

who joined conspirators at a restaurant and

“seemed very watchful of the comings and

goings in the restaurant, turning his head from

left to right.” United States v. Jackson, 700

F.2d 163, 184 (5th Cir. 1983). “Without

evidence that he knew the nature or purpose of

the meeting or even that a large amount of

money was present,” we reversed the

conviction. Id. at 185. 

Herrera’ssituationis not exactly analogous.

While there is no evidence that he knew the

details or extent of the de la Torre conspiracy,

there is evidence that he knew enough about

their activitiesto know theywould want police

protection. 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 evidence to support the

“knowledge” element of his conspiracy

conviction. By asking for (over the telephone)

and accepting money to protect that

conspiracy, Herrera 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 providing them with

protection from the police through bribes.

Additionally, the government offered the

testimony of a Dallas police officer who

recounted Herrera’s efforts to get him to

search for names of people under

investigation. The jury reasonably could have

inferred that Herrera did intend to pay bribes

or otherwise provide protection 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 that 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

telephone) and received money that he said

would be used to bribe officers, he maintains

that the utter lack of evidence that he acted to

do anything means that the “participation”

element is not supportable. 

Perhaps recognizing the force of this

argument, the government claims that merely

accepting the money and promising to provide

police protection gave the conspirators a
8

“sense of safety.” By aiding the conspiracy in

this way, the government claims, Herrera

“participated” in a way that satisfiesthe fourth

element of the conspiracy statute. 

Irrespective ofthe validityofthis argument,

and even though there was not substantial

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 identifying police

surveillance 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 committed plain

error when it construed these actions as

“participation” for purposes of the conspiracy

charge. We therefore affirm the sufficiency of

evidence for Herrera’s drug conspiracy and

communication device convictions,5based on

his “participation” in trying to find out

information about his co-conspirators. We

find no plain error and affirm Herrera’s

conviction for conspiracy and communication

device violations. 

2.

a.

To convict of money laundering under

§ 1956, the government must prove that the

defendant (1) knowingly conducted a financial

transaction that affects interstate or foreign

commerce; (2) which involved the proceeds of

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

promote or further that unlawful activity, or

(4) with the intent to conceal the nature,

location, source, ownership or control of the

proceeds. United States v. Garza, 118 F.3d

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

argues that Herrera’s actions meet these

requirements. First, the recorded

conversations support the inference that

Herrera accepted $3,000 from the de la Torre

organization, thereby fulfilling the “financial

transaction” element. Second, the

conversations revealed that Herrera knew

about the de la Torre organization’s illegal

drug trafficking activities, and the jury could

have inferred from these conversations that

Herrera realized any money he received would

be the proceeds from those illegal activities.

Third, Herrera’s conversations also revealed

his promise to use the $3,000 to bribe Dallas

police officers, thereby fulfilling the “intention

to promote” element. 

The government also reiteratesthat Herrera

did not move for a judgment of acquittal at the

close of evidence and 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. United States v.

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

(i)

Herrera claims that the $3,000 he received

from the de la Torre organization does not

constitute a “financial transaction” within the

meaning of § 1956. He points out that the

statute defines a “financial transaction” as “a

transaction which in anyway or degree affects

interstate or foreign commerce . . . .”

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

“transaction” as a “purchase, sale, loan,

pledge, gift, transfer, delivery, or other

disposition” or some action involving a

financial institution or its facilities. §

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

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

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

United States v. Puig-Infante, 19 F.3d 929,

938 (5th Cir. 1994).

There is some disagreement over which

transaction is the actual “money laundering”

 

5 Almost all the evidence against Herrera

is based on hisrecorded conversations with Miguel

de la Torre. His detailed telephone conversations

with Miguel about checking his name and social

security number for possible police investigations

suffices to support his use of communication

device to facilitate a drug crime. 
9

transaction at issue. Herrera asserts that only

his alleged bribe payments constitute the

money laundering transaction and that his

acceptance of $3,000 from the de la Torres

should not be considered the “laundering”

transaction. Thus, he argues that the absence

of evidence that any bribe payments were

made is relevant to his money laundering

conviction.

The statute does not make any distinction,

however, between a party who gives the

proceeds of an illegal activity and one who

receives them. As we have explained, the

question is whether the “transaction involved

the proceeds of unlawful activity.” PuigInfante, 19 F.3d at 939. 

In Puig-Infante, the defendant received

money in exchange fromthe sale ofmarihuana.

This appeared to be a transaction, but there

was no indication that the money she received

was the proceeds of unlawful activity. She

then transported the money interstate by car.

We held that while the transportation of

money interstate involved the proceeds of an

unlawful activity, the 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 interstate

commerce. 

Herrera avers that even if his acceptance of

the $3,000 is the transaction 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

burden to show even a de minimis effect on

interstate commerce. See United States v.

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

He points out that in cases in which courts

have affirmed money laundering convictions,

the “laundering” transactions have at least

been conducted via wire or the mails and that

such money was then deposited into bank

accounts. See United States v. Alford, 999

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

This court has emphasized the importance

of the interstate or foreign commerce

requirement of the financial transaction

element. For instance, we refused to allow the

government to meet its “financial transaction”

burden merely by proving that cash was

transported interstate by an automobile. See

Puig-Infante, 19 F.3d at 937. We similarly

refused to permit a jury to infer a “financial

transaction” from evidence that cash was

discovered in a defendant’s home. See United

States v. Ramirez, 954 F.2d 1035, 1039-40
10

(5th Cir. 1992).6

In neither of these cases, however, was the

reviewing court bound by the plain error

standard. Under plain error review, we ask

only if there would be a manifest 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

would be shocking.” Bailey, 111 F.3d

at 1235. Under the limited review allowed by

the plain error standard, the jury did not

commit plain error by inferring that the cash

transaction between de la Torre and Herrera

had a substantial effect on interstate commerce

for purposes of the financial transaction

element of § 1956.

(ii)

Herrera further arguesthat the government

did not meet its burden of proving that he

knew that the money he received came out of

the proceeds of de la Torre’s drug activities.

The government did not ask Miguel to explain

whether the money he used to pay Herrera

resulted from drug proceeds or was generated

through other means. We cannot say,

however, that there is plain error in allowing

the inference, from the voluminous evidence

presented about the scale and scope of the de

la Torre organization, that Miguel and

Carmela generated most of their income from

their drug trafficking business.

(iii)

Herrera charges that the absence of

evidence about how he disposed of the money

is fatal to the “intent to promote” or “intent to

conceal” element. He argues that there is no

evidence that he used the money to promote

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

of the agents conducting the de la Torre probe

admitted that they had no evidence that

Herrera did anything at all with the money he

received. They do point, however, to

Herrera’s statements in his recorded

conversations. Herrera characterizes his

statementsinthese conversations as boasts and

deceptions and argues that those statements

alone are not sufficient to support his money

laundering conviction.

The government 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 issufficient to

support a reasonable jury’s inference that

Herrera accepted the money with the intention

of using it to promote the drug conspiracy

through bribery. 

3.

To demonstrate a conspiracy to commit

moneylaundering, the government must prove

(1)the existence of a conspiratorial agreement,

(2) one co-conspirator knowingly commits an

overt act by participating 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 promote or

further that unlawful activity. United States v.

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

Alternatively, a conspirator may be held

responsible if he had the intent to conceal or

disguise the nature, the location, source,

ownership, or control of the proceeds of

specified unlawful activity. § 1956(a). 

Gurrusquietta does not challenge his

substantive money laundering conviction.

Instead, he arguesthat the government did not

present sufficient evidence to support his

conviction for conspiring to commit money

laundering. Specifically, he asserts that the

government never showed that he agreed to

join in a money laundering conspiracy. At

best, he claims that the government has only

shown that he associated with individuals who

 

6

In a similar 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 Reserve Notes that constituted the single

allegedmoney laundering transaction. . . .” United

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 his

intentional and knowing participation in the

conspiracy. United States v. Magee, 821 F.2d

234, 238 (5th Cir. 1987). 

Essentially, the government need only

establish that Gurrusquietta agreed to be part

of a conspiracy that would conduct financial

transactions with the proceeds from illegal

actions in furtherance of the conspiracy. The

evidence establishes that Gurrusquietta had

been a supplier to the de la Torre organization

since 1994 and knew the organization used

wire payments to agents in Mexico to

purchase marihuana. 

These payments over the wires meet the

financial transaction element of § 1956, and

the use of money from the distribution of

drugs in Dallas satisfied the “illegal proceeds”

element. The evidence also supported an

inference that the money was used for the

purpose of purchasing marihuana, thereby

satisfying the “promoting in furtherance of the

conspiracy” element. 

Gurrusquietta’s claim that he merely

associated with the conspiratorsis misleading.

The jury was entitled to infer from (1) his

substantial involvement in the supply of

marihuana to the organization and (2) his

brother’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 the admission of

Carmela’s testimony and the admission of

telephone and pen register records

authenticating the wiretapped conversations.

Herrera allegesthat the court erred by refusing

(1) to allow 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 trial from that of the

other conspirators. Herrera also invites us to

review, on direct appeal, the effectiveness of

his trial 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

will not reverse unless the error had a

“substantial and injurious effect or influence in

determining the jury’s verdict.” Lowery, 135

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

Carmela de la Torre testified that Miguel

told her that Robles worked for their

organization. Specifically, she explained that

Miguel would tell her that he needed to

borrow the car to go with Robles to collect

payments from drug sales. Id. Robles

objected to this testimony as inadmissible

hearsay. 

Rule 801(d)(2)(E), FED. R. EVID., 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

speaker made the statement in the course of

the conspiracy and in furtherance ofit. United

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

(5th Cir. 1998). 

There is no doubt that Carmela, Miguel,

and Robles were members of a conspiracy.

Carmela served as a telephone contact point

and would need to know who was

participating inthe organization. Additionally,

she testified that Miguel told her about

Robles’s role in the context of explaining why

he was borrowing the car. This testimony

seems to satisfy the requirement that the

statement be made in the furtherance of the

conspiracy, because Miguel explained that he

needed the car to go and collect money from

drug sales. The court did not abuse its

discretioninadmitting thistestimonyunder the

rule 801(d)(2)(E) co-conspirator exception to
12

the hearsay rule.7

b.

Robles objects to the admission of “pen

register” and wiretap orders from the

Southwestern Bell Company(“SWB”), arguing

that the government did not lay sufficient

foundation to admit them under the business

records exception to the hearsay rule. See

FED. R. EVID. 803(6). The rule requires the

government to lay foundation for business

record evidence through the testimony of a

witness who can attest to the procedures used

to create and maintain the records within the

business. 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 “court orders.” She testified that the

records were created by an employee of SWB

in the regular course of business 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 the procedures for

maintaining the records submitted into

evidence occurred in the regular course of

business. This testimony is sufficient to qualify

for the rule 803(6) exception to the hearsay

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

c.

During her closing argument rebuttal, the

prosecutorsaid, “Members ofthe jury, the five

individuals that are before you today are

involved in drug dealing in one way or

another.” According to Robles, this is a

statement of personal belief regarding guilt

that deeply prejudiced his case. 

A prosecutor may not personally vouch for

the credibility of witnesses, but he may argue

reasonable inferences drawn from the

evidence. United States v. Munoz, 150 F.3d

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

statement here could be reasonably inferred

from the evidence she presented and does not

vouch for the credibility of any witness.

Moreover, Robles does not 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 scheme,

including (1) the status of payment collections; (2)

the packaging of marihuana for sale; and (3) new

locations for a stash house. This evidence would

render the admission of Carmela’s testimony

harmless.
13

briefstatement prejudices anyof hissubstantial

rights to a degree meriting reversal. The

government offered substantial evidence,

including recorded conversations in which

Robles discussed drug-trafficking 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 to present witnesses who

would testify that no police officers had been

bribed as a result of his payments. He

petitioned the court to allow the Dallas police

chief or deputychiefto testify that no evidence

of bribes had been found as a result of an

internal investigation. The government

objected, and the district court excluded these

witnesses, ruling that their testimony 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 bribed. I just

don’t see—that’s not an element of anything

that’s been charged.”

Herrera responds that the issue of whether

he bribed anyone is relevant to the “financial

transaction” and “furtherance of unlawful

conduct” element of his money 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 transaction element of his

money laundering conviction, Herrera’s

receipt of the $3,000 in illegally generated

proceeds from the 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 promote unlawfulconduct” for

purposes of § 1956. Therefore, the district

court erred when it ruled that whether any

officer was bribed is “not an element of

anything that’s been charged.” 

We must still consider, however, whether

the excluded testimony prejudiced Herrera’s

defense to such a degree requiring reversal.

The government did not have to prove that

Herrera actually paid the bribes to the police

officers. Rather, the statute simply requires

the jury to find that Herrera accepted the

$3,000 “with the intent to promote the

carrying on ofspecified unlawful activity,” i.e.,

the drug-trafficking conspiracy. 

The government offered substantial

evidence, in the form of recorded

conversations between Miguel and Herrera,

establishing that Herrera promised Miguel to

use the $3,000 to pay off police officers.

Given the strength of this evidence supporting

the jury’s finding that Herrera intended to pay

bribes, we do not think the exclusion of

witnesses testifying that no actual bribe

payments were made could have substantially

affected the 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 statements,

Herrera explained that he had made up his

bribery story to get money from Miguel and

that he had taken no action to pay bribes to

police officers. The government filed a motion

in limine to exclude this evidence as

inadmissible hearsay. 

The court 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 “out of court

statement” offered for the truth of the matter

asserted. Therefore, the court did not abuse

its “wide latitude to impose reasonable limits

on cross-examination” when it refused to

admit hearsay evidence at trial.

c.

Herrera claims he should have been granted

a severance. Rule 8(b), FED. R. CRIM. P.,

allows a court to join defendants in the same

indictment “if they are alleged to have
14

participated in the same series of acts or

transactions constituting an offense or

offenses.” To protect defendants, however,

FED. R. CRIM. P. 14 authorizes a severance if

it appears the defendant “is prejudiced by a

joinder o f offenses or of defendants in an

indictment.” A court should use rule 14 only

“ifthere is a seriousrisk 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. United States v. Pofahl,

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

Herrera aversthat he was highly prejudiced

as a result of being tried with twenty codefendants against whom the government

provided wiretapped conversations depicting

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 prejudiced his

ability to highlight his own very different

alleged role in the conspiracy.

Herrera’s generalized claims of prejudice

do not show reversible error. The Zafiro

Court did state that “[w]hen many defendants

are tried together in a complex 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. United States, 328 U.S. 750

(1946). 

Here, however, the government alleged

only one conspiracy and only one organization

of drug conspirators. Herrera dealt directly

with the head of this organization and

discussed mattersrelated to protecting a single

form of drug trafficking. 

Additionally, the Zafiro Court emphasized

that though courtsmaydetermine thatseparate

trials are necessary, “less drastic measures,

such as limiting instructions, often will suffice

to cure any risk of prejudice.” Zafiro,

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

481 U.S. 200, 211 (1987)). The Court then

found no abuse of discretion in a denial of

severance, even where each defendant had

accused the other defendant of the crime. The

Zafiro Court concluded that with the proper

instructions, the jury could give separate

consideration to each individual defendant

without prejudicing his 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 limiting

instruction 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 counsel did not move for

judgment of acquittal at the close of all the

evidence. Therefore, he did not preserve

Herrera’s objections to the sufficiency of the

evidence for his conspiracy, telephone use, and

money laundering convictions. On the basis of

this failure alone, Herrera’s appellate counsel

asks this court to find that Herrera received

ineffective assistance of counsel pursuant to

Strickland v. Washington, 466 U.S. 668

(1984). Following Washington, we will not

reverse based on an ineffective assistance of

counsel claim unless (1) the counsel’s

performance is deficient and (2) the errors are

so prejudicial as to deprive the defendant of a

fair trial. Belyeu v. Scott, 67 F.3d 535 (5th

Cir. 1995). 

 

8 Herrera does point to United States v.

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

we reversed 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

“inflammatory” evidence was offered here that

might have enraged the jury and motivated it to

impute guilt to unrelated co-defendants. 
15

“The general rule in this circuit is that a

claim of ineffective assistance of counsel

cannot be resolved on direct appeal when the

claim has not been raised 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

only when the record allows a fair evaluation

of the claim. Id.

Herrera claimsthat histrialcounsel’sfailure

to move for acquittal at the close of evidence

is obvious from the record and adequately

developed for review. Still, we have allowed

these types of claims on direct appeal only in

casesin which the trial attorneyhad been given

a chance to respond to the allegations9or

where government conduct was allegedly

responsible for the ineffective assistance.10

Herrera’s trial counsel has not been given the

opportunity to explain his alleged error, and

there is no evidence to 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 the ineffective

assistance claim without prejudice. 

3.

Gurrusquietta challenges the failure to

suppress evidence seized during the police

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

observed by federal agents picking up a gym

bag from a car that had previously been at the

de la Torre 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 traffic

violation, the police asked for and received

consent to search the car. Gurrusquietta now

claims that because the state police officers

would not have stopped himbut for the federal

agent interventionSSand because the federal

agents themselves did not have sufficient

probable causeSSthe court should have

suppressed all evidence from this search.

A warrantless arrest must be supported by

probable cause. United States v. Shugart,

117 F.3d 838, 846 (5th Cir.), cert. denied,

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

when the totality of facts and circumstances

within 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 process of

committing, an offense. Id. Because we find

that the challenged search was 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 swerved

and almost hit a police car. The government

claims that, having been lawfully 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 to the search. Rather, he

contends 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 agents’ suspicions of a drug

transaction, the stop itself must be supported

by probable cause to pass muster under the

Fourth Amendment.

Unfortunately for Gurrusquietta, we have

upheld a search conducted pursuant to a traffic

stop motivated by suspicions but not

supported by probable cause. Because we

review only the objective reasonableness of a

search, we will not consider the subjective

motives of the officer conducting the search.

See United States v. Castro, 166 F.3d 728,

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

In Castro, we upheld a search conducted

 

9 United States v. Phillips, 664 F.2d 971,

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

 

10 United States v. Martinez-Perez, 941

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

after a legitimate traffic stop, even though the

government admitted that the stop had been

motivated by suspicions of drug trafficking.

Therefore, this court squarely rejected the

view advanced by Gurrusquietta here (and in

the Castro panel opinion) that because the

traffic stop was a “ruse,” any subsequent

search had to be supported by probable cause.

Castro, 166 F.3d at 734.

For thisreason, the district court did not err

when it refused to suppress evidence seized

during the April 8 search of Gurrusquietta’s

car. 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 sentencing

guidelines to factual findings and the factual

findings themselves for clear error. In making

findings of fact for sentencing purposes, a

court need only be convinced by a

preponderance of evidence. Shugart, 117 F.3d

838, 848 (5th Cir.), cert. denied, 118 S. Ct.

433 (1997). 

1.

Robles’ssentence 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 all, much less one

that was connected to the drug conspiracy.

We review this frontal assault on factual

findings for clear error.

The district court relied primarily on

recorded conversations in which Robles

recounted stories about using a firearm during

drug transactions. These conversations also

revealed Miguel de la Torre's instructing

Robles to purchase a firearm for use during

drug transactions. 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

conversations 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 court 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 of drugs

reasonably foreseeable to himduring the life of

the conspiracy. The court accepted the PSR's

calculation that Robles should be attributed

1,000 pounds of marihuana.
17

The PSR made this calculation in an

unusual manner. First, it relied on Miguel de

la Torre’s testimony that his organization

moved between 20,000 to 25,000 pounds of

marihuana during a 78-week period. More

specifically, the PSR found that 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.

Because the 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

organization were reasonably foreseeable to

him. 

Roblesrepliesthat it isimproper to average

the marihuanamoved 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 there 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 Robles was based on

“further investigation by case agents” rather

than on simple averaging. In its initial

recommendation, the PSR noted that it had

calculated the amounts attributable to Robles

based on “wire communications, video and

physical surveillance, debriefings with codefendants, arrest and seizure of money and

wire transfer records.” We infer that the

PSR’s reference to “further investigation” in

the addendum 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 responsible for

more than 1,000 kilograms of marihuana,

subjecting him to an enhanced sentence

requiring a 240-month mandatory minimum.

The evidence at trial and in the PSR, however,

plainly stated Gurrusquietta was only

responsible for 668.15 kilograms.

The government concedesthisis clear error

and requests a remand for resentencing. We

therefore vacate Gurrusquietta’ssentence and

remand for resentencing under a guideline

range consistent withthe amounts attributed to

him.

The judgments of conviction and sentence

are AFFIRMED, except that Gurrusquietta’s

sentence is VACATED and REMANDED for

resentencing.