1 District Judge of the Western District of Louisiana,

sitting by designation.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

______________________________

NO. 91-5799

______________________________

UNITED STATES OF AMERICA, 

 Plaintiff-Appellee,

versus

HENRY S. FULLER and 

ROBERT DUANE FOSTER,

Defendants-Appellants.

 

 Appeals from the United States District Court

for the Western District of Texas

 

(October 6, 1992)

Before JONES and WIENER, Circuit Judges, and LITTLE, District

Judge.1

LITTLE, District Judge:

Henry Silas Fuller and Robert Dwayne Foster were convicted of

conspiracy to launder money. Fuller was also convicted of

attempting to launder money. In their appeal, Foster and Fuller

assert that the evidence, some of which was wrongfully admitted,

was insufficient to support guilty verdicts. The appellants also

suggest reversible error in the district court's submission of an

instruction on deliberate ignorance. Finally, appellants contest

the district court's determination of the sum subject to the
2

offence. This error resulted in an enhanced sentence. Finding no

merit in any argument raised by either appellant, we affirm.

According to the indictment, Fuller and Foster allegedly

conspired to launder money in violation of 18 U.S.C. § 371 and §

1956(a)(B). Fuller was also charged with violating 18 U.S.C. §

1956(a)(3)(B), attempting to launder money represented by a law

enforcement agent to be the proceeds of drug trafficking. Taken in

a light most favorable to the verdict, the following are the facts

of the case.

Fuller, a domiciliary of Austin, Texas and generally a realtor

of some ten years experience, met a bar owner in Del Rio, Texas in

the spring of 1989. Fuller asked bar owner Jose Martiarena if he

knew of anyone with a strong desire to launder money. Martiarena

introduced Fuller to a government informant, Mike Nicholas.

Nicholas in turn introduced Fuller to government agent Alfonso

Martinez. On 16 May 1989 Martinez met with Fuller, Nicholas and

David Ruiz, also a government agent. Martinez was seeking

assistance from Fuller in getting cash in and out of a banking

system in such a way that the cash would be sanitized, i.e., any

illegal taint would be removed and currency reporting forms would

not have to be completed. The meeting in May was conducted in a

hotel room in San Antonio, Texas and was memorialized through video

tape. Fuller bemoaned the fact that a Brazilian based land sale

for $25,000,000 had been upended when the government of Brazil

appropriated his land for agrarian distribution. Fuller was in

need of legitimate funds, as much as $100,000, to finance the cost
3

of a legal attack on the Brazilian uncompensated confiscation. In

anticipation of the receipt of $25,000,000, Fuller had gained

knowledge in the art of moving money from place to place in order

to lessen the impact of taxation. Fuller assumed some expertise in

money management and secrecy by boasting of friendship with a group

that had control over 23 banks. His knowledge would justify a 20%

fee. Certainly the banks could assist Martinez, through Fuller, in

hiding or cleansing money. Another currency cleansing creation of

Fuller's involved a loan to Hemisphere Insurance Company, a

Bahamian based insurance company. Hemisphere was in need of cash

to fund the acquisition of another insurance company. Fuller could

provide Martinez's dollars to Hemisphere in exchange for Hemisphere

debentures. The transaction would be secured by a mortgage on

Texas property owned by Hemisphere. As a quid pro quo for the

loan, the insurance company, for a fee, would also assist in

setting up a corporation offshore into which funds would be

deposited and from which funds could be withdrawn without U. S.

Government regulation. Fuller had the perfect cover. He would

describe the funds to be camouflaged by the insurance company as

part of his legally obtained funds from the Brazilian land

transaction. In fact, he had a photocopy of a check to his order

for the equivalent of $25,000,000, and that would be an impressive

prop. Subsequent to the meeting, Fuller, through Foster, sent

Martinez, through Nicholas, documents that could be used to

effectuate the mortgage proposal. 

On 21 June 1989, Martinez and Nicholas met in a San Antonio
4

hotel with Fuller and Foster. This conclave was also the subject

of a video and audio recordation. Foster described himself to

agent Martinez as a well-drilling fund raiser and real estate

broker. Foster sent Martinez financial statements on three related

insurance companies, Hemisphere, Benefax and Bowman. Foster was

acquainted with the management of these companies and with offshore

corporations and banking operations. At this time the loan to

Hemisphere Insurance Company or Benefax was discussed, as well as

the creation of a Martinez controlled Bermuda based bank account

into which and from which Martinez could direct funds. Foster and

Fuller both confirmed a fee arrangement ranging from a flat 20% to

a declining sliding scale depending upon the volume of funds

handled by Foster and Fuller. For example, the commission would

drop to 12 1/2% on funds administered in the amount of $1,000,000

or more per month. Foster and Fuller were specifically advised

that the funds were acquired by illegal activities. Therefore,

loss of the funds by Foster-Fuller would place Martinez in a hot

spot. Martinez could not go to court because he would be unable to

disclose the source of his funds.

After the meeting of 21 June 1989, Martinez communicated by

telephone with Fuller. The next communication between Fuller and

Martinez occurred on 1 May 1990, when Fuller, in response to a

message from Martinez, called Martinez. Over the next sixty days,

there were four telephone calls between the two. The third face to

face meeting between Martinez and Fuller took place on 28 June

1990, again at the Embassy Suites Hotel in San Antonio, Texas. The
5

third person at that meeting was an undercover San Antonio

policeman. Foster, according to Fuller, was working offshore and

could not attend the meeting. The laundering scheme was reviewed.

Martinez gave $97,500 cash to Fuller. Fuller would carry the money

to Foster. The funds would be deposited in a Hemisphere Insurance

Company account in Bermuda. The corporation would then transfer

the funds to a corporate account to be controlled by Martinez.

Hemisphere would issue its debenture and Foster and Fuller would

received a commission. Fuller prepared an accounting statement

showing the costs, including fees, to which the $97,500 payment was

exposed. Martinez's participation was evidenced by his cash

delivery of $97,500 and his message to Fuller that he would get

possession of the debentures on Sunday. After Fuller accepted the

money and immediately prior to his intended departure, he was

arrested. Among his possessions was a passport with markings

evidencing recent and frequent trips to Brazil. Martinez knew that

Fuller needed as much as $100,000 to finance his lawsuit in Brazil.

Martinez said his clients were Colombians, but the money itself had

no "white dust" on it. 

Fuller testified that he knew the money was drug driven but

that he intended to steal the money from Martinez. Fuller needed

money to fund his Brazilian lawsuit and to get even with drug

traffickers who had enticed his son down the dark side of the path.

Fuller also testified that he told Foster that the Martinez money

had come from South America. Foster testified that he was unaware

that the Martinez funds were anything other than legally obtained.
6

SUFFICIENCY OF THE EVIDENCE

We review the evidence, and all reasonable inferences to be

drawn therefrom, supporting a conviction in the light most

favorable to the verdict. United States v. Tripplett, 922 F.2d

1174, 1177 (5th Cir. 1991), cert. denied, 111 S.Ct. 2245 (1991).

We ask whether a rational jury could have found each defendant

guilty beyond a reasonable doubt. Every reasonable theory of

innocence need not be excluded. All credibility choices are

decided in favor of the government. United States v. Montemayor,

703 F.2d 109, 115 (5th Cir. 1983), cert. denied, 464 U.S. 822

(1983); United States v. Green, 964 F.2d 365 (5th Cir. 1992);

United States v. Breque, 964 F.2d 381 (5th Cir.), reh'g denied en

banc, 1992 U.S. App. LEXIS 18664 (5th Cir. 1992).

I. FULLER'S CONVICTION

Fuller calls into question the sufficiency of evidence to

convict him on the attempt to conduct a transaction proscribed by

18 U.S.C. § 1956(a)(3)(B). This statute criminalizes the

laundering of funds received from an unlawful activity. It is well

settled that mere preparation alone will not suffice to support

conviction for conducting a financial transaction affecting

interstate commerce. There must be a substantial step taken toward

the commission of a crime. Fuller accepted drug money from an

undercover agent and moved to depart from the hotel room. Fuller

claims that these acts, acceptance of funds and an attempt to exit

the building, do not amount to an attempt to conduct a financial

transaction. 
7

In order to convict under 18 U.S.C. § 1956, the government

must prove beyond a reasonable doubt that the defendant involved

himself in a financial transaction with property represented by the

undercover agent to be the product of a specified unlawful

activity. A specified unlawful activity, according to the statute,

includes "dealing in narcotic or other dangerous drugs" punishable

by imprisonment for not more than one year. 18 U.S.C. §§

1956(c)(7)(A) and 1961(1). The government must also prove beyond

a reasonable doubt that the defendant knew the illicit source of

the funds and that the laundering was done with the intent to

conceal or disguise the nature, location, source, ownership or

control of the property. 18 U.S.C. § 1956(a)(3)(B). This circuit

has adopted a two-step test for proof of attempt:

We have stated a two-step test for finding criminal

attempt. "To be guilty of an attempt, the defendant (1)

must have been acting with the kind of culpability

otherwise required for the commission of the crime which

he is charged with attempted," and (2) "must have engaged

with conduct which constitutes a substantial step towards

commission of the crime." United States v. Briscoe, 742

F.2d 842, 846 (5th Cir. 1984)(citations omitted). In

order to establish a violation of 18 U.S.C. § 1956, the

government must prove that the defendant (1) knowingly

conducted a financial transaction ("financial

transaction" in this context means "the movement of funds

by wire or other means . . . which in any way or degree

affects interstate or foreign commerce.") 18 U.S.C. §

1956(c)(4) (2) which involved the proceeds of unlawful

activity and (3) with the intent to promote or further

that unlawful activity.

United States v. Salazar, 958 F.2d 1285, (5th Cir. 1992).

Fuller does not dispute that he knew the source of the funds

and that he intended to conceal or disguise the source of the

funds. What Fuller does dispute is the sufficiency of the evidence
8

that equates his actions with "conducts" or "transaction" as those

terms are defined in 18 U.S.C. § 1956(a)(3)(B). Fuller also

disputes that the evidence is sufficient to link him with a

financial transaction. The statute defines, but not in exclusive

terms, the words "conducts," "transaction," and "financial

transaction" as follows:

(2) the term "conducts" includes initiating, concluding,

or participating in initiating, or concluding a

transaction;

(3) the term "transaction" includes a purchase, sale,

loan, pledge, gift, transfer, delivery, or other

disposition, and with respect to a financial institution

includes a deposit, withdrawal, transfer between

accounts, exchange of currency, loan, extension of

credit, purchase or sale of any stock, bond, certificate

of deposit, or other monetary instrument, or any other

payment, transfer, or delivery by, through, or to a

financial institution, by whatever means effected; 

(4) the term "financial transaction" means a transaction

involving the movement of funds by wire or other means or

involving one or more monetary instruments, which in any

way or degree affects interstate or foreign commerce, or

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; 

18 U.S.C. § 1956(c)(2)(3)(4). 

Fuller would like the law to measure only his receipt of funds

and his walk to the hotel door. Nothing in the statute requires

such a restrictive reading. Fuller's entire relationship with the

undercover agents must be, and was, the subject of jury evaluation.

At three lengthy meetings, held over a fourteen month period,

Fuller described in great detail methods that he could administer

to cleanse the drug funds so that deposit and withdrawal reporting

requirements could be avoided. Not only did Fuller suggest the
9

methods of law avoidance, but also he initiated steps towards

perfection of plans to accomplish the illegal purpose. Fuller

talked with insurance company executives, obtained financial data

on accomplices to the scheme of laundering, and sent this material

to the undercover agent. He prepared a detailed financial

statement showing the source and application of funds when received

from the undercover agent. He travelled widely in Texas in

pursuance of factual data to support the benefits to be received by

the undercover agent from the Fuller-created laundering schemes.

What did Fuller need to launder the money? He needed a solid

plan, one that oozed with commercial merit, he needed the money,

and he needed to transmit the money to the entity to perform the

laundering function. What did Fuller do to accomplish the feat?

He prepared a plan, he refined it after communicating with an

intended recipient of the money, he demonstrated the commercial

reasonableness of the plan to the undercover agent, he received the

money, and was on his way to deliver the money to the sanitizing

agent in a foreign situs when he was arrested. If he had made

delivery of the money the crime would have been perfected.

Fuller cites U. S. v. Ramirez, 954 F.2d 1035 (5th Cir.), cert.

denied, 112 S.Ct. 3010 (1992), as this circuit's rule that mere

possession of money does not support "the inference that the

defendant transferred, delivered, moved or otherwise disposed of

the money as required by the statute." Id. at 1040. In Ramirez,

this court overturned a conviction of money laundering when drug

money was found in a house belonging to a co-conspirator. The
10

government had failed to show that the co-conspirator was involved

in any way in a financial transaction with the money. The Ramirez

holding is inapposite to this case. Fuller developed a procedure

to launder funds derived from illegal sources. There is no

constructive possession of money here. Fuller arranged a plan to

circumvent currency reporting requirements and accepted cash to

complete the plan. He was not an innocent dupe as was a coconspirator in the Ramirez case. The evidence is overwhelming. A

jury could easily conclude that Fuller was the mastermind of an

intricate international plot concocted by him to conceal the source

of large sums of drug money. Only Fuller's testimony supports his

theory that he intended to fleece Martinez out of his money. The

jury's determination will not be disturbed.

II. FOSTER'S CONVICTION

Foster regards the indictment and evidence as insufficient to

support his conviction for conspiracy to launder funds represented

to be the proceeds of an unlawful activity. The indictment,

according to Foster, is deficient in that there is no assertion by

the Government that its agent warranted to Foster that the money

for laundering came from an unlawful activity. The indictment

charged that Fuller and Foster "willfully, knowingly and unlawfully

conspired, combined, confederated and agreed together, and with

each other, to commit an offense against the United States in

violation of Title 18, United States Code, Section 371, that is to

say, they conspired to launder money, in violation of Title 18,

United States Code, Section 1956(a)(3)(B)." The indictment
11

described each of the specific elements of the offense, including

the requirement that the Government agent certify the illegal

source of the funds that are the subject of the laundering scheme.

The indictment is not invalid. A challenge similar to that

raised by Foster was brought forth in United States v. Graves, 669

F.2d 964 (5th Cir. 1982). Graves claimed that an indictment for

conspiracy to violate the Dyer Act was insufficient in that the

indictment neglected to mention that Graves knew that the trucks

were stolen and were valued at more than $5,000. In ruling on

Graves' meritless argument, the court noted, as we do, that the

defendant was charged with conspiracy to violate the law, not with

a substantive violation of the law itself. In such a case, "the

sufficiency of the indictment must be measured with regard to a

conspiracy to violate a federal law rather than with regard for the

substantive violations Graves conspired to commit." Id. at 968.

The court in Graves went on to describe a sufficient indictment for

conspiracy:

An indictment is sufficient if it, first, contains the

elements of the offense charged and fairly informs the

defendant of the charge against which he must defend,

and, second, enables him to plead an acquittal or

conviction in bar of future prosecutions for the same

offense.

Id. at 968 (quoting with approval United States v. Bailey, 444 U.S.

394, 414 (1980)). The indictment of Foster clearly contains all of

the elements of the statute and directly notifies him of the

charges he is called upon to defend. We reject the argument that

the indictment is defective.

Foster also argues that the evidence is insufficient to
12

support his conviction. Foster, having attended only one of the

three meetings between Fuller and Martinez claims that he was never

informed by Martinez that the Martinez funds were from the illegal

sale of drugs. Supported by citations previously reported, we ask

whether a rational jury could have found beyond a reasonable doubt

that Foster was aware of the source of the Martinez funds. Or, as

we stated in U.S. v. Arditti, 955 F.2d 331, 339 (5th Cir.), reh'g

denied, 1992 U.S. App. LEXIS 13930 and 1992 U.S. App. LEXIS 13931

(5th Cir. 1992):

In this case, it is enough that sufficient evidence was

presented that the jury could have found beyond a

reasonable doubt that (the Government agent) represented,

and (the defendant) understood, that the funds they were

laundering were the proceeds of the specified illegal

activities.

Viewing the evidence in a light favorable to the verdict, we find

sufficient evidence to support the conclusion that Foster knew the

funds came from an illegal source. At the meeting of 21 June 1989,

agent Martinez rejected the Foster researched transaction of a

Texas land purchase, the land having been encumbered with a lease

of questionable value. But agent Martinez expressed interest in

offshore banking. Foster and Fuller explained the creation of an

offshore account into which the Martinez money would be deposited.

Even though the offshore corporation would use a wholly owned

subsidiary as the account owner, only Martinez, or his designee,

would have authority to make deposits and withdrawals. As Foster

described the transaction, the account would look like a Hemisphere

Insurance Company account, but the sole control over the account

would vest in Martinez. All that would be required for the Bermuda
13

based account would be a minimum balance. Even large deposits and

withdrawals would not attract attention. The money would be paid

to Foster and Fuller, the commission extracted, and the net

proceeds delivered to the insurance company. Foster recognized the

risk of the transaction when he said, in discussing commissions:

The terms are the same whether it's a hundred thousand or

a hundred million, you're in trouble. It's what you did,

not how much you did.

But Martinez wasn't as concerned about the commission and the

danger of being detected as he was about the security of his

client's money.

Martinez: You feel, you may feel that I, am not going as

fast as you want me to go, but I have to make

sure that the money is secure. Yeah, the

people down south, they don't want any

excuses. . . . Okay, let me, let me just

make sure you guys understand something, where

I'm coming from. In these situations that I'm

dealing with, some of these Colombians that I

have to get the money to, sometimes deal with

other people. They're gonna deal with the

person that gives them the best deal. So if I

want to get their money to run it through the

system that we talked about right here, I've

got to have, I've got to have a reasonable way

to, a price for them. If not, they'll just go

to somebody else and there's a lot of people

out there that already helping them, and I

have to compete with them and, and sometimes

it's a little hard. But they also, you know,

your also talking about large amounts of money

in hard cash. Twelve percent sounds within

reason, and it all depends what, how much the

Colombian is going to give me that particular

time . . . but you got to remember you know,

the funds, you know, it's, if they leak out,

the illegal, the illegality of the funds, the

funds are illegal if they get lost, my

recourse is very limited, you know that

legally.

Foster: I'll ride shotgun. How's that, I'll ride

shotgun.
14

Martinez: Those are the sources of the funds, you know.

. . . And I don't need any Colombians on my

ass.

Fuller: Well, I don't think there's anyone involved

now that doesn't understand what's, you know,

what we're doing, I mean it's just totally,

what we're doing is not legal and the main

thing is, is to watch everyone's backs. And

if one person gets caught well, he keeps his

mouth shut and that's it and the best way for

him not to know is not to ever meet anybody.

Martinez: Do we deliver it (the money) to you?

Fuller: Yeah, but you'll have a debenture. 

Martinez: I'll tell you what, you know, I'll tell you

guys an honest story. This happened to me,

dealing with those Colombians, you know, this

is common, you know, dealing with these

Colombians, you know, this is common you know,

dealing with Colombians, this happened to me.

I went to, I called, they called me from down

south and said, he says, Al, this is, you

know, we got, we got some for you to pick up,

I said, well, how much do you have? And he

says 127. So I figured 127,000, and, and I

misread them. So I have a small car and I,

and, the Colombians I go pick them up and I

pick up in the parking lots because I get

there and I pick it up quick and disappear and

I have my partners with me. So I say, so, so

I get there and, God damn Colombian comes out,

he says, I says, he says, well, here, you got

it? And I say, I got the packages, he says,

okay, I say, well let's transfer it to my car,

he says quick. So he starts bring out the

suitcases, and I have a little car, before I

know it I've got suitcases tied all over the

damn car and got some in the back, and I got

1.5 million bucks. I says, oh, it took me two

weeks to get rid of that stuff. They followed

me day in and day out. . . . I finally had,

you know, it took me two weeks to get it back

to them on this one, I said, hey, you know I

can't move it that fast. . . . 

Foster: God dang. . . . 

Martinez: These Colombians that I deal with, they

developed a trust in me enough that they'll
15

release 1.5 million bucks to me. And of

course they know quite a bit about me too, you

know, but you know, by the same token, knock

on wood, I've been fortunate and never lost

any of their money, and I don't plan to, if I

do, I'm going to have to make good or I'm

going to have a very good explanation why some

money gets lost.

Foster: Well, you know, the front has got to look

right too. It's just like, I saw on the news

the other day that, that big bust with 80

million worth of cocaine and the "carrier" has

got a California driver's license, he rents a

truck in Florida and he's speeding heading to

California. Now that, I mean, 

Martinez: He's looking for it.

Foster: There's something wrong, there's something

wrong here.

Rarely does a jury have the opportunity to see and hear the

event at issue. Usually, the testimony of a witness to an event

imparts that witnesses' personality in the reproduction. But in

this case, the video tape recorded the entire event and made each

juror an armchair witness, not hobbled by another's recollection.

The jury could reasonably conclude that Martinez led Foster to

believe that the funds to be laundered were the product of an

illicit activity.

DELIBERATE IGNORANCE INSTRUCTION

Foster and Fuller each object to the deliberate ignorance

instruction related to the charge of conspiracy to launder money.

The court instructed the jury that:

You may find that a defendant had knowledge of a fact if

you find that the defendant deliberately closed his eyes

to what otherwise would have been obvious to him. While

knowledge on the part of the defendant can not be

established merely by demonstrating that the defendant

was negligent, careless or foolish. Knowledge can be
16

inferred if the defendant deliberately blinded himself to

the existence of a fact.

Foster and Fuller believe that the government agent is required by

statute to represent to them that the money was the product of an

illegal activity. Allegedly, the deliberate ignorance instruction

compromises the statutory instruction. They also claim that the

instruction is in error in a conspiracy case. Foster and Fuller

assert that in a conspiracy case there must be evidence of a

conscious agreement between the parties. The deliberate ignorance

instruction, according to appellants, undercuts the heavy burden

placed upon the government to prove a conspiracy.

In U. S. v. Daniel, 957 F.2d 162 (5th Cir. 1992), a defendant

complained that the trial court should not have given an

instruction on deliberate ignorance. The court first addressed the

issue of standard of review: 

The standard of review of a claim that a jury instruction

was inappropriate is "whether the courts charge, as a

whole, is a correct statement of the law and whether it

clearly instructs jurors as to the principles of law

applicable to them." United States v. Lara-Velasquez,

919 F.2d 946, 950 (5th Cir. 1990) quoting from United

States v. Stacey, 896 F.2d 75, 77 (5th Cir. 1990). This

court has consistently upheld such an instruction as long

as sufficient evidence supports its insertion into the

charge.

Id. at 169. The giving of the deliberate ignorance instruction was

not reversible error. Appellants insist that the instruction was

wrongfully given because the jury could believe that the Government

was only required to prove that the defendants should have known of

the source of funds. We disagree. There is ample evidence that

both defendants, in fact, knew that the source of the funds was
17

drug sales. The instruction could not have misled the jury as to

the proper standard. The jury instruction that dealt specifically

with 18 U.S.C. § 1956(a)(3)(B) made clear to the jury that the

Government had to prove that the undercover agent made a

representation. Taken as a whole, the instructions were proper and

there was no error in giving the deliberate ignorance instruction.

See U.S. v. Breque, 964 F.2d 381 (5h Cir.), reh'g denied en banc,

1992 U.S. App. LEXIS 18664 (5th Cir. 1992) for an in depth analysis

of the deliberate ignorance instruction in a case involving

conspiracy and attempt to launder drug funds.

AGENT'S EXPLANATION OF VIDEOTAPE RECORDINGS

The appellants complain that the videotapes of the three

meetings with the undercover agent were improperly embellished when

the agent was allowed to explain and interpret the argot or

seemingly secret jargon of the alleged criminals. For example, the

undercover agent was permitted to advise the jury of the meaning

and import of the witnesses' recorded words. The undercover agent

was allowed to explain the term "move around" money; to explain the

prominence of the Bahamas in drug money laundering schemes; to

explain the money owners' reason for avoiding the completion of

currency declaration forms; to explain the meaning of money

laundering; to explain currency transaction reporting requirements;

to explain the significance of small bills in money laundering of

proceeds from narcotic sales; to explain that Colombia is a country

well known for its international drug trafficking. All of the

admissions were in the nature of self serving testimony from one
18

not qualified to give expert testimony, so say the appellants. The

appellants cite this circuit's opinion in U. S. v. Hall, 653 F.2d

1002 (5th Cir. 1991) as authority for their demands that their

convictions be reversed. On examination, Hall will not support the

defendant's theory for reversal. We need but quote from the Hall

decision to distinguish the testimony in that case from this. 

To bolster its case, the government called its final

witness, DEA agent John Donald. Donald did not

participate in the investigation leading to Hall's arrest

and prosecution, and was in no way connected with the

development of the case against Hall. The sole purpose

of his testimony was to respond to defense counsel's

suggestion that the government had been unable to obtain

corroborating physical evidence against Hall because Hall

was innocent of the offenses charged. Donald testified

in general terms about the various procedures used by the

DEA in its narcotics investigations. In sum, Donald

described the various investigative techniques and

testified that it is not always possible to conduct a

"controlled buy" and seizure of narcotics during the

course of an investigation, particularly where the

conspiracy under investigation has already terminated by

the time the investigation is commenced or the subject of

the investigation is insulated in the higher echelons of

the narcotics conspiracy.

In essence, Donald testified as a kind of quasi-expert on

DEA investigative procedures, and his testimony was

limited to the general and quite hypothetical

descriptions of accepted practice that are typical of the

expert witness. He testified to no facts bearing on any

manner on the prosecution of Christopher Hall or on the

investigation leading to that prosecution. His testimony

had no tendency whatsoever to make the existence of any

fact of consequence to the government's case in chief

either more or less probable than it would have been

without his testimony.

Hall, 653 F.2d at 1005, 1006. The undercover agent in this case,

Martinez, presented relevant evidence. He testified as to facts

directly bearing on the investigation and ultimate arrest of both

Foster and Fuller. He was professionally qualified to testify as
19

to the usual meanings, in the words of drug money laundering, of

terms used by the parties to the conversations. The Martinez

testimony was relevant and admissible. FED. R. EVID. 402.

THE SENTENCE

Appellants find fault with the district judge's assessment of

the amount involved in the offense. The district judge concluded

that $2,097,000 was the amount of money involved in the offense and

this finding produced a six level upward adjustment to the base

level offense. The district court applied a base offense level of

twenty as required by U.S.S.G. § 2S1.1(a)(2), and a six level

upward adjustment for the specific offense characteristic because

the funds to be laundered under the scheme exceeded $2,000,000.

U.S.S.G. § 2S1.1(b)(G). In making its determination of the amount

involved, the trial court cited the negotiations of the 21 June

1989 meeting during which the defendants discussed the ease with

which $1,000,000 a month could be laundered. The court also

observed that placing the amount at $2,097,000 was conservative and

modest. The actual sum could have been as high as $25,000,000.

Our standard of review of factual findings upon which a sentence is

based has been succinctly stated in a recent opinion:

The district court's findings about the quantity of drugs

on which a sentence should be based are factual findings

which we review for clear error. United States v.

Rivera, 898 F.2d 442, 445 (5th Cir. 1990). A finding

will not satisfy this deferential standard "`when,

although there is evidence to support it, the reviewing

court on the entire evidence is left with the definite

and firm conviction that a mistake has been committed.'"

Anderson v. City of Bessemer City, 470 U.S. 564, 573, 105

S.Ct. 1504, 1511, 84 L.Ed.2d 518 (1985) (quoting United

States v. United States Gypsum Co., 333 U.S. 364, 395, 68

S.Ct. 525, 541-42, 92 L.Ed. 746 (1948)); see also United
20

States v. Sanders, 942 F.2d 894, 897 (5th Cir. 1991) ("a

factual finding is not clearly erroneous as long as it is

plausible in light of the record read as a whole"). The

district court is not limited to considering the amount

of drugs seized or specified in the charging instrument.

United States v. Sarasti, 869 F.2d 805, 806 (5th Cir.

1989), but may consider amounts that were part of a

common plan or scheme to distribute. United States v.

Ponce, 917 F.2d 841, 844 (5th Cir. 1990) (per curiam),

cert. denied, ____ U.S. ____, 111 S.Ct. 1398, 113 L.Ed.2d

453 (1991); United States v. Byrd, 898 F.2d 450, 452 (5th

Cir. 1990). The ultimate sentence will be upheld so long

as it results from a correct application of the

Guidelines to factual findings that are not clearly

erroneous. Rivera, 898 F.2d at 445; United States v.

Buenrostro, 868 F.2d 135, 136-37 (5th Cir. 1989), cert.

denied, 495 U.S. 923, 110 S.Ct. 1957, 109 L.Ed.2d 319

(1990).

U.S. v. Mitchell, 964 F.2d 454 (5th Cir. 19 June 1992). The

district court was guided by United States v. Richardson, 925 F.2d

112, 116 (5th Cir. 1991), cert. denied, 111 S.Ct. 2686 (1991) when

it made the factual determination as to the amount of money that

the defendants were "reasonably capable" of laundering. The

analysis by the district judge was well within the bounds of

reason. Fuller had the perfect cover, the Brazil land sale for

$25,000,000. That sum would provide the shade of validity to

launder the drug money from the clients of the government agent.

We find no clear error in the analysis by the district court.

There are no factual inaccuracies presented to question the court's

logical conclusions.

All of the arguments of appellants have been reviewed and

refuted. We AFFIRM the convictions and sentences with respect to

each defendant.