* 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.

United States Court of Appeals

Fifth Circuit

FILED

August 23, 2007

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 05-10428

UNITED STATES OF AMERICA

Plaintiff-Appellee

v.

CHRISTOPHER ALMAGUER,

also known as Toothpick

Defendant-Appellant

Appeal from the United States District Court 

for the Northern District of Texas

USDC No. 4:04-CR-152-2-A

Before JOLLY, STEWART, and PRADO, Circuit Judges.

PER CURIAM:*

Christopher Almaguer appeals his convictions on five counts related to his

involvement in a methamphetamine distribution network. We AFFIRM.

I.

Christopher Almaguer, also known as “Toothpick” was charged with six

counts of illegal drug activity and money laundering in conjunction with his

involvement in a drug conspiracy run by Frank Flores, otherwise known as
No. 05-10428

1 The jury also found Almaguer guilty of Count 5, possession of a semi-automatic rifle

in furtherance of a drug trafficking crime on August 17, 2004, in violation of 18 U.S.C. § 924(c).

At sentencing, however, the district court dismissed Count 5 on the government’s motion.

2

“Tank.” Almaguer’s case proceeded to trial, and the jury found him guilty on five

counts: Count 1, conspiracy to possess with intent to distribute and to distribute

more than 50 grams of methamphetamine, in violation of 21 U.S.C. § 846; Count

2, distribution of more than 50 grams of methamphetamine on April 15, 2003,

in violation of 21 U.S.C. §§ 841(a)(1) & 841(b)(1)(A)(viii); Count 3, distribution

of more than 50 grams of methamphetamine on January 28, 2004, in violation

of 21 U.S.C. §§ 841(a)(1) & 841(b)(1)(A)(viii); Count 4, possession of two

handguns in furtherance of a drug trafficking crime on April 1, 2004, in violation

of 18 U.S.C. § 924(c); and Count 6, causing his common law wife, Graciela

Gandara, to engage in money laundering, in violation of 18 U.S.C. §§ 2 &

1957(a).1 Almaguer appealed his convictions on all five counts.

II.

Almaguer argues that his trial counsel provided ineffective assistance by

failing to move for a judgment of acquittal on all counts at the close of the

government’s case, at the close of all evidence, or after the jury returned the

verdict. See FED. R. CRIM. P. 29. Almaguer argues that there is insufficient

evidence to support any of his convictions.

“A claim of ineffective assistance of counsel is ordinarily not reviewed on

direct appeal unless it has been addressed by the district court. Only when the

record is sufficiently developed with respect to such a claim, will we determine

on direct appealthe merits ofthe claim.” United States v. Rosalez-Orozco, 8 F.3d

198, 199 (5th Cir. 1993) (citations, quotation, and alteration omitted). Here, the

record is sufficiently developed for us to consider Almaguer’s claim, and we

therefore turn to the merits of his argument.
No. 05-10428

3

To prevail on a claim of ineffective assistance of counsel, the defendant

must demonstrate (1) deficient performance by counsel that (2) prejudiced the

defense. Id. (citing Strickland v. Washington, 466 U.S. 668, 687 (1984)). “To

establish prejudice, [Almaguer] must show thatthere is a reasonable probability

that, but for counsel’s unprofessional errors, the result of the proceeding would

have been different.” Id.(quotation omitted). To determine whether Almaguer’s

alleged ineffective assistance of counsel prejudiced his defense, “we must

evaluate the sufficiency of the evidence as if counsel had moved for judgment of

acquittal at the close of the evidence.” Id. at 200. “Accordingly, we must

determine whether, viewing the evidence and the inferences that may be drawn

from itin the light mostfavorable to the verdict, a rational jury could have found

the essential elements ofthe offenses beyond a reasonable doubt.” Id. (quotation

omitted).

A.

We first consider the sufficiency of the evidence for Almaguer’s drugrelated convictions under Counts 1, 2, 3, and 4. To convict Almaguer of drug

conspiracy under Count 1, the government was required to prove beyond a

reasonable doubt: (1) an agreement existed between Almaguer and one or more

persons to violate the applicable narcotics laws; (2) Almaguer knew of the

conspiracy and intended to join it; and (3) Almaguer participated voluntarily in

the conspiracy. See United States v. Infante, 404 F.3d 376, 385 (5th Cir. 2005).

“An express agreement is not required; a tacit, mutual agreement with common

purpose, design, and understanding will suffice.” Id. Each element may be

established by circumstantial evidence. Id. Accordingly, “[a]ssociation or

presence can be sufficient to prove knowing participation in the agreement if

combined with other supporting circumstantial evidence.” United States v.

Martinez, 190 F.3d 673, 676 (5th Cir. 1999). 
No. 05-10428

4

Similarly,to convict Almaguer of drug possession with intentto distribute

under Counts 2 and 3, the government was required to prove beyond a

reasonable doubt:“(1) knowing (2) possession of an illegal substance (3) with the

requisite intent to distribute.” See Infante, 404 F.3d at 385. “Possession can be

actual or constructive, joint among defendants, and established by direct or

circumstantial evidence.” Martinez, 190 F.3d at 676. 

Finally, to convict Almaguer of possession of a firearm in furtherance of

a drug trafficking crime under Count 4, the government was required to prove

that Almaguer (1) carried a firearm (2) during and in relation to a drug

trafficking crime. See United States v. Guidry, 456 F.3d 493, 508 (5th Cir. 2006);

18 U.S.C. § 924(c) (2006).

Here, sufficient evidence clearly supports Almaguer’s conviction under

Count 2 for possession with intent to distribute on April 15, 2003. Francisco

(Frank) Flores testified that a man named Fino made drug transactions on

Flores’s behalf and that on April 15, 2003, Fino and Almaguer delivered a

shipment of methamphetamine to Jeffrey Borho. Borho likewise testified that

on April 15, 2003, he arranged to purchase methamphetamine from Flores, and

the shipment was delivered to him by Fino and Almaguer. Police testified that

they observed Almaguer park his Lincoln Navigator at Flores’s home and leave

with another man and several small bags. They later observed the Navigator

pull into a hotel parking lot, pick up Borho, drive around the hotel, and drop off

Borho, who carried a small package. Shortly thereafter, officers stopped and

arrested Borho for a traffic violation, seizing approximately 600 grams of

methamphetamine. Borho also testified that a day or two prior to April 15,

2003, he was trying to get two or three pounds of methamphetamine and was

waiting at a park with Flores when Almaguer pulled up in his Navigator,

accompanied only by a child. Flores went to Almaguer’s car window and

returned to Borho soon thereafter,throwing Borho a McDonald’s bag containing
No. 05-10428

2 OverAlmaguer’shearsay objection,the district court admittedPena’s testimony about

Flores’s instructions as a statement in furtherance of the conspiracy.

5

french fries, catsup, and three pounds of methamphetamine. Viewing this

evidence in the light most favorable to the government, see Rosalez-Orozco, 8

F.3d at 200, the evidence was sufficient for the jury to find Almaguer guilty of

Count 2, see Infante, 404 F.3d at 385; Martinez, 190 F.3d at 676.

Likewise, sufficient evidence supports Almaguer’s conviction under Count

3 for possession with intent to distribute on January 28, 2004. That day, police

officers arrested Priscilla Pena when she was seen dumping methamphetamine

out of her vehicle’s window during a traffic stop. Pena testified that about one

week prior to her arrest, she had called Flores and arranged to purchase “a little

over a pound” of methamphetamine. She testified that Flores instructed her to

meet with Almaguer to receive the methamphetamine.2 She further testified

that she met Almaguer at the designated location, and he provided her with the

methamphetamine. Later, on April 1, 2004, police officers stopped Almaguer’s

vehicle and found $1900 in cash and two handguns. In sum, these facts provide

sufficient evidence to support Almaguer’s conviction under Count 3. See Infante,

404 F.3d at 385; Martinez, 190 F.3d at 676.

The foregoing facts also demonstrate, in conjunction with the record as a

whole, that sufficient evidence supports Almaguer’s convictions under Count 1

for drug conspiracy, see Infante, 404 F.3d at 385; Martinez, 190 F.3d at 676, and

under Count 4 for possession of a handgun in furtherance of a drug trafficking

crime, see Guidry, 456 F.3d at 508; 18 U.S.C. § 924(c).

B.

We next consider the sufficiency of the evidence for Almaguer’s money

laundering conviction under Count 6. To prove a money laundering offense

under 18 U.S.C. § 1957(a), the government must prove: (1) property valued at

more than $10,000 was derived from a specified unlawful activity (here, drug
No. 05-10428

6

trafficking, see 18 U.S.C. §§ 1956(c)(7)(B)(i) & 1957(f)(3)); (2) Almaguer engaged

in a monetary transaction with the property; and (3) Almaguer knew that the

property was derived from unlawful activity. See United States v. Rodriguez,

278 F.3d 486, 490 (5th Cir. 2002). The term “monetary transaction” is defined

to mean “the deposit, withdrawal, transfer, or exchange, in or affecting

interstate or foreign commerce, of funds or a monetary instrument (as defined

in section 1956(c)(5) of this title [which includes “bank checks”]) by, through, or

to a financial institution (as defined in section 1956 of this title), including any

transaction that would be a financial transaction under section 1956(c)(4)(B) of

this title, ...” 18 U.S.C. § 1957(f)(1) (2006). 

Attrial, an IRS agenttestified that on April 26, 2002, Almaguer’s common

law wife, Graciela Gandara, entered the Forth Worth Community Credit Union

with $15,100 in cash and received two cashier’s checks for $7,500 each. The

checks were issued to Arcadia Financial Ltd., a company based in Minneapolis,

Minnesota, and the checks identified Graciela Gandara as the remitter. The

agent traced the funds and determined that the $15,000 was credited in May

2002 to an Arcadia Financial account related to the purchase of a 1998 Lexus

jointly owned by Almaguer and Gandara. As evidenced by Government Exhibit

7,the 1998 Lexus had been repossessed on April 16, 2002, and Gandara used the

$15,000 in cashier’s checks in addition to other funds to pay offthe auto loan and

redeem the 1998 Lexus on May 14, 2002. Furthermore, the government

produced Government Exhibit 25, which summarized the transactions of a Bank

of America checking account held by Almaguer and Gandara. In 2002, the

deposits consisted of $36,915.00 in cash and $36,063.79 in checks, of which

$1,668.06 was taken out as cash. Almaguer and Gandara filed a joint tax return

for the 2002 tax year, admitted into evidence as Government Exhibit 11. On

their 2002 tax return, the two of them only reported income of $24,943.00, the
No. 05-10428

3 Almaguer points out that Gandara self-reported in a loan application in Government

Exhibit 7 that her salary as of July 2001 was $2,500 per month. Nevertheless, Government

Exhibit 7 also contains a letter dated July 13, 2001 from Gandara’s employer stating that

Gandara had been on a leave of absence since May 25, 2001, and Almaguer produced no

evidence that she ever returned to work. 

Almaguer also points out that Government Exhibit 8 contains a copy of a pay stub

which indicates that as of October 26, 2002, Almaguer had earned $43,860.00 gross income in

2002. The pay stub clearly conflicts with his reported income and his W-2 tax form, and

“viewing the evidence and the inferences that may be drawn from it in the light most favorable

to the verdict,” we assume that the jury believed the W-2 tax form and not the pay stub. See

Rosalez-Orozco, 8 F.3d at 200.

4 Almaguer claims that he and Gandara could have obtained the $15,100 cash from an

auto insurance check they received as settlement for a wrecked Lexus. His claim is without

merit. Based on a review of the couple’s joint checking account, the government points out that

the only check Almaguer and Gandara received from their auto insurance company was issued

on November 6, 2002 as partial settlement of claims arising out of an incident on October 7,

2002, which was after Gandara obtained the cashier’s checks on April 26, 2002. Furthermore,

the check was only for $13,909.71.

7

amount appearing on Almaguer’s W-2 tax form from his employer, Bison

Building Materials.3

In United States v. Westbrook, 119 F.3d 1176 (5th Cir. 1997), a case of

money laundering in violation of 18 U.S.C. § 1956, this Court concluded that a

reasonable jury could infer that the defendant bought his Mercedes using drug

money, where he did not file a tax return or identify any legitimate income and

where there was “ample evidence” that the defendant was involved in extensive

drug dealing. Id. at 1191. Although the facts in this case differ because

Almaguer’s reported income exceeded the $15,100 used for the cashier’s checks,

his reported salary was nevertheless only $24,943.00, and “the jury was free to

discredit [Almaguer’s] theory that the funds used to acquire the [cashier’s

checks] were from a legitimate source.” See Rodriguez, 278 F.3d at 491. The

record demonstrates that Almaguer and Gandara obtained over $50,000 in

unexplained cash in 2002 ($36,915.00 deposited into their joint account plus

$15,100 for the cashier’s checks),4 and the government produced “ample
No. 05-10428

8

evidence” at trial that Almaguer was involved in the drug conspiracy. See

Westbrook, 119 F.3d at 1191. “The government is under no duty to trace the

individual funds and it is not necessary that a transaction be examined wholly

in isolation if the evidence tends to show that it is part of a larger scheme that

is designed to conceal illegal proceeds.” Rodriguez, 278 F.3d at 491 (quotation

omitted). On the facts before us, we find sufficient evidence for a reasonable

trier of fact to find beyond a reasonable doubt that the cash Gandara used to

purchase the cashier’s checks was derived from drug trafficking and that

Almaguer knew the cash was derived from drug trafficking. See Rodriguez, 278

F.3d at 490.

The remaining question is whether there is sufficient evidence to show

that Almaguer engaged in a monetary transaction, see id., or more specifically

as stated in Count 6, that he “did intentionally and knowingly cause [Gandara]

to engage in a monetary transaction ....” in violation of 18 U.S.C. §§ 2 and

1957(a). Under 18 U.S.C. § 2, “[w]hoever willfully causes an act to be done which

if directly performed by him or another would be an offense against the United

States, is punishable as a principal.” 18 U.S.C. § 2(b) (2006) (emphasis added).

The record demonstrates that Almaguer and Gandara acted as common law

husband and wife, shared a checking account, owned the 1998 Lexus together,

and in 2002 had over $50,000 of unexplained cash that the jury apparently

concluded was mostly if not entirely Almaguer’s drug money. Under these facts,

there was sufficient evidence for the jury to conclude beyond a reasonable doubt

that Almaguer “caused” Gandara to engage in the monetary transaction such

that he can be held liable as a principal for violating 18 U.S.C. § 1957(a). See 18

U.S.C. §§ 2 and 1957(a).

Nonetheless, Almaguer argues that even if he “caused” Gandara to engage

in money laundering, the government failed to produce sufficient evidence to

satisfy the interstate commerce nexus requirement of the definition of “monetary
No. 05-10428

9

transaction.” See 18 U.S.C. § 1957(f)(1). We disagree. Under 18 U.S.C. §

1957(f)(1), a “monetary transaction” includes “any transaction that would be a

financial transaction under section 1956(c)(4)(B) of this title,” and 18 U.S.C. §

1956(c)(4)(B) defines “financial transaction” as “a transaction involving the use

of a financial institution which is engaged in, or the activities of which affect,

interstate or foreign commerce in any way or degree.” Here, Gandara used the

cash to obtain two cashier’s checks made out to Arcadia Financial Ltd., a

financial institution based in Minnesota but having at least one Texas address

and doing business with Gandara and Almaguer in Texas, as evidenced by

Government Exhibit 7. Therefore, Arcadia Financial is “a financial institution

which is engaged in ... interstate or foreign commerce in any way or degree,” and

Gandara’s payment of the cashier’s checks to Arcadia Financial qualified as a

“financialtransaction” under 18 U.S.C. § 1956(c)(4)(B), and thus, as a “monetary

transaction” under 18 U.S.C. § 1957(f)(1).

III.

The record demonstrates that the government produced sufficient evidence

for the jury to find Almaguer guilty beyond a reasonable doubt on all five counts

of conviction. Therefore, he was not prejudiced by his trial counsel’s failure to

move for a judgment of acquittal, and his constitutional claim of ineffective

assistance of counsel fails because, assuming counsel was ineffective, he cannot

satisfy the prejudice prong of the claim. See Rosalez-Orozco, 8 F.3d at 199.

Because we conclude that sufficient evidence supports Almaguer’s convictions

for the purposes of his ineffective assistance claim, which requires us to

“evaluate the sufficiency of the evidence as if counsel had moved for judgment

of acquittal at the close of the evidence,” see Rosalez-Orozco, 8 F.3d at 200,

Almaguer’s stand-alone insufficient evidence claims also fail under the

heightened “manifest miscarriage of justice” standard of review, see United
No. 05-10428

10

States v. Sam, 467 F.3d 857, 860 (5th Cir. 2006) (quotation omitted);

Rosalez-Orozco, 8 F.3d at 202. Accordingly, Almaguer’s convictions are

AFFIRMED.