Filed: May 26, 1998
Latest Update: Mar. 02, 2020
Summary: REVISED, May 26, 1998 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT _ No. 97-20130 _ UNITED STATES OF AMERICA, Plaintiff-Appellee, v. JUAN GARCIA ABREGO, Defendant-Appellant. _ Appeal from the United States District Court for the Southern District of Texas _ May 6, 1998 Before KING, EMILIO M. GARZA, and DEMOSS, Circuit Judges. KING, Circuit Judge: Defendant-appellant Juan Garcia Abrego appeals his conviction and sentence for ten counts of possession with intent to distribute cocain
Summary: REVISED, May 26, 1998 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT _ No. 97-20130 _ UNITED STATES OF AMERICA, Plaintiff-Appellee, v. JUAN GARCIA ABREGO, Defendant-Appellant. _ Appeal from the United States District Court for the Southern District of Texas _ May 6, 1998 Before KING, EMILIO M. GARZA, and DEMOSS, Circuit Judges. KING, Circuit Judge: Defendant-appellant Juan Garcia Abrego appeals his conviction and sentence for ten counts of possession with intent to distribute cocaine..
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REVISED, May 26, 1998
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 97-20130
_____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
JUAN GARCIA ABREGO,
Defendant-Appellant.
_________________________________________________________________
Appeal from the United States District Court
for the Southern District of Texas
_________________________________________________________________
May 6, 1998
Before KING, EMILIO M. GARZA, and DEMOSS, Circuit Judges.
KING, Circuit Judge:
Defendant-appellant Juan Garcia Abrego appeals his
conviction and sentence for ten counts of possession with intent
to distribute cocaine in violation of 21 U.S.C. § 841(a)(1) and
(b)(1)(A), five counts of money laundering in violation of 18
U.S.C. § 1956(a)(1)(A)(i), three counts of money laundering in
violation of 18 U.S.C. § 1956(a)(2)(A), one count of conspiracy
to launder money in violation of 18 U.S.C. § 1956(h), and one
count of conducting a continuing criminal enterprise in violation
of 21 U.S.C. § 848. We affirm.
I. FACTUAL BACKGROUND
For approximately two decades, Juan Garcia Abrego was the
hub of a narcotics smuggling syndicate of staggering dimension.
Headquartered in Matamoros, Mexico, Garcia Abrego’s organization
was responsible for smuggling tremendous quantities of cocaine
and marijuana into the United States from the mid-1970s to the
mid-1990s.
Garcia Abrego began trafficking large quantities of
marijuana in the mid-1970s. In 1976, Carlos Resendez, a long
time friend of Garcia Abrego, delivered approximately 300
kilograms of marijuana to him. Francisco “Paco” Perez also began
working for Garcia Abrego in the drug trafficking trade around
1980. At Garcia Abrego’s direction, Perez unloaded marijuana
flown in on a small plane by Oscar “El Profe” Lopez Olivares,
stored it in a warehouse on Garcia Abrego’s ranch in Soliceno,
Mexico, and smuggled it across the border into the United States
in inner tubes.
In the early 1980s, Garcia Abrego expanded his operation.
According to some members of his organization, in 1985, Garcia
Abrego ordered the murder of Casimiro “Cacho” Espinoza, another
drug trafficker in Mexico, in order to eliminate competition.
Thereafter, Luis Medrano, who had previously worked for Espinoza,
went to work for Garcia Abrego.
In 1986, Garcia Abrego began trafficking cocaine because
marijuana was a seasonal business. Luis Medrano and Oscar
Malherbe worked as managers and supervisors one step below Garcia
Abrego in the chain of command in his organization. Medrano and
Malherbe enlisted the services of a number of other individuals,
including Jaime Rivas Gonzales, Tony Ortiz, Tomas “Gringo”
2
Sanchez, and Juan Ibarra, to transport cocaine into the United
States and the rich proceeds from its sale back into Mexico.
These individuals in turn utilized the services of numerous other
individuals to package and deliver the cocaine and to collect and
deliver the money.
Garcia Abrego used money from his drug operation to purchase
large ranches in Soto La Marina, an area south of Matamoros.
Malherbe and Medrano arranged for loads of cocaine to be flown to
these ranches, and from there, the cocaine was moved to
Matamoros. The cocaine was smuggled across the border and
stockpiled in the Brownsville, Texas area. From there, members
of Garcia Abrego’s organization arranged the shipment of the
cocaine to Houston. From Houston, the drugs were distributed
locally and nationally, principally to New York and Los Angeles.
Garcia Abrego’s organization utilized vehicles with hidden
compartments to transport cocaine and proceeds from its sale
inside the United States. Until 1990, the organization also
utilized INS buses to smuggle narcotics into the United States.
Garcia Abrego’s organization trafficked a huge amount of
narcotics. Between 1989 and 1993, U.S. law enforcement officials
seized over thirteen tons of the organization’s cocaine, but this
was but a fraction of the amount that the organization
successfully smuggled into the United States. Jaime Rivas
Gonzales testified that he moved between thirty-three and forty
tons of cocaine for the organization, and Carlos Rodriguez
3
testified that he moved over fifty tons. Tony Ortiz testified
that he moved 10,000 kilograms of cocaine for the organization.
Garcia Abrego’s organization derived substantial profits
from its drug trafficking activities. Members of the
organization sold cocaine in Houston for between $17,000 and
$23,000 per kilogram and in Los Angeles and New York for between
$23,000 and $25,000 per kilogram. Tony Ortiz testified that he
collected $60 to 70 million on behalf of the organization in New
York and Houston and shipped it back to Matamoros.
In addition to trafficking narcotics, Garcia Abrego’s
business also included providing “protection” to other drug
traffickers moving narcotics through the Matamoros area. In the
mid-1980s, Carlos Resendez, who had begun working for Garcia
Abrego full time, set up a meeting between Garcia Abrego and
Fernando “El Aguacate” Martinez, another drug trafficker who
sought permission from Garcia Abrego to move cocaine through the
Matamoros area. Garcia Abrego agreed to allow him to do so in
exchange for $200,000 for each airplane load brought through the
area.
According to some members of his group, when Garcia Abrego
got word that Martinez had landed planes without paying the
$200,000 fee, he became angry and had his men capture a member of
Martinez’s organization and beat information out of him regarding
the rival organization, including the number and weights of loads
of cocaine that the organization transported. In hopes that law
enforcement authorities could eliminate his competition for him
4
and save him the trouble of doing it himself, Garcia Abrego
turned this information over to FBI Agent Claudio DeLaO, who was
masquerading as a corrupt agent in an attempt to effect Garcia
Abrego’s arrest. Insofar as more direct efforts are concerned,
DeLaO asked Garcia Abrego in a subsequent telephone conversation
what had happened to the member of Martinez’s group from whom he
had acquired information. Garcia Abrego responded, “We left him
at the Rio Bravo more or less,” a comment which DeLaO took to
mean that Garcia Abrego had killed him. Garcia Abrego also
stated that another member of Martinez’s group from whom he had
acquired information “already went to heaven.” Garcia Abrego
then indicated that he had gathered his men to take care of
Martinez personally, but that, before they could do so, Mexican
federal police arrested Martinez. Thereafter, Garcia Abrego
began demanding forty to fifty percent of Colombian traffickers’
loads in exchange for the privilege of moving narcotics through
the Matamoros area.
Carlos Rodriguez, Sergio “Checo” Gomez, and Jesus “Chuy”
Espinoza also paid Garcia Abrego’s organization for the privilege
of trafficking cocaine through Matamoros. Rodriguez and his
cohorts received their cocaine from the Medellin Cartel.
However, Medrano and Malherbe subsequently informed Rodriguez
that he and his comrades were being absorbed into Garcia Abrego’s
organization and that they could no longer purchase cocaine from
the Medellin Cartel because their organization worked exclusively
with the Cali Cartel.
5
The hierarchy of Garcia Abrego’s organization was firmly
established. If a member of the group overstepped his authority,
the consequences were dire. In 1991, Tomas “Gringo” Sanchez, a
principal player in the New York segment of Garcia Abrego’s
distribution network, ordered the killing of a Colombian drug
trafficker in a Matamoros jail without authorization from Garcia
Abrego. As a result of the killing, a riot broke out in the
jail, killing two members of Garcia Abrego’s organization.
Garcia Abrego was upset by Sanchez’s acting without authority
because of the intense media attention that the riot caused. He
had also concluded that Sanchez had gotten out of hand and lost a
great deal of money for his organization. Thereafter, Luis
Medrano ordered Sanchez killed.
Garcia Abrego protected his business from interference from
law enforcement by paying large bribes to Mexican law enforcement
officials. Specifically, he ordered individuals in his
organization to pay Lopez Parra, a commander in La Procuraduria
General de la Republica (the PGR), Luis Esteban Villalon, who was
in charge of the federal police for northern Mexico, and Coello
Trejo, the Deputy General for the PGR $1.5 million per month.
Garcia Abrego also had Francisco Perez purchase clothing for
employees of Trejo on a number of occasions. On each occasion,
Perez spent from $50,000 to $80,000.
Garcia Abrego also protected his organization by attempting
to maintain a low profile. At one point, he informed Perez that
he intended to kill two Mexican reporters because they were
6
writing “[t]oo many personal things in the newspaper” about his
narcotics trafficking business. When Oscar “El Profe” Lopez
Olivares, formerly a valued member of Garcia Abrego’s
organization, made statements to the press threatening to expose
a high-level narcotics operation in Matamoros along with its
organizer, Garcia Abrego attempted to have him killed and,
through Luis Medrano, enlisted the assistance of Agent DeLaO in
this regard.
Lopez Olivares’s statements to the press created pressure
from law enforcement for Garcia Abrego. He alleviated this
pressure through further bribes to government officials. He also
moved to Monterey, a city deeper inside Mexico than Matamoros,
and essentially went into seclusion so that he was not accessible
to people outside his organization.
Sometime in late 1989 or early 1990, $10 million in bribe
money from Garcia Abrego’s organization failed to reach Coello
Trejo. In January 1990, Mexican officials jailed eighteen
members of Garcia Abrego’s group for possession of firearms,
cocaine, and marijuana. Because of pressure from Mexican law
enforcement, Garcia Abrego moved to his sister’s home in McAllen,
Texas and later to an apartment in Chicago. Shortly thereafter,
Mexican officials seized Garcia Abrego’s ranches and other
property in Matamoros.
In December 1990, Garcia Abrego discovered that he was named
in a federal indictment that had recently been unsealed, and he
therefore fled back to Monterey. After his return to Monterey,
7
Garcia Abrego purchased several million dollars worth of
properties, including ranches, which he used as hideouts. From
1991 though 1994, Garcia Abrego remained in hiding and changed
locations at least every few weeks and sometimes every few days.
Though he was in hiding, Garcia Abrego continued to meet with
members of his organization to discuss the drug business.
Pursuant to Garcia Abrego’s orders, Carlos Resendez acted as an
intermediary through whom other members of the group, including
Oscar Malherbe and Luis Medrano, went in order to meet with
Garcia Abrego.
In 1996, Mexican authorities arrested Garcia Abrego after
Resendez informed them where he was hiding. Within a few days,
Mexican authorities flew Garcia Abrego to the United States and
placed him in the custody of U.S. law enforcement officials.
II. PROCEDURAL BACKGROUND
A grand jury indicted Garcia Abrego on twenty-two counts of
a twenty-eight-count indictment, including ten counts of
possession of cocaine with intent to distribute in violation of
21 U.S.C. § 841(a)(1) and (b)(1)(A), five counts of money
laundering in violation of 18 U.S.C. § 1956(a)(1)(A)(i), three
counts of money laundering in violation of 18 U.S.C. §
1956(a)(2)(A), one count of conspiracy to possess cocaine and
marijuana with intent to distribute in violation of 21 U.S.C.
§ 846, one count of conspiracy to launder money in violation of
18 U.S.C. § 1956(h), one count of conspiracy to import cocaine
and marijuana in violation of 21 U.S.C. § 963, and one count of
8
conducting a continuing criminal enterprise (CCE) in violation of
21 U.S.C. § 848. After a lengthy trial, the jury found Garcia
Abrego guilty of all twenty-two counts. The district court
dismissed the conspiracy to possess cocaine and marijuana with
intent to distribute and conspiracy to import cocaine and
marijuana counts because they constituted lesser-included
offenses of conducting a CCE. The district court imposed a
sentence consisting of concurrent terms of life imprisonment
followed by concurrent five-year terms of supervised release for
the CCE count and for each count of possessing cocaine with
intent to distribute. The court sentenced Garcia Abrego to
concurrent 240-month terms of imprisonment followed by concurrent
3-year terms of supervised release for the count of conspiracy to
launder money and for each of the substantive money laundering
counts. The district court also imposed a fine of $128,312,098
and ordered Garcia Abrego to forfeit $350,000,000 in United
States currency and substituted assets. Garcia Abrego appeals
his conviction and sentence as to all counts.
III. DISCUSSION
Garcia Abrego appeals his conviction and sentence on the
following fourteen grounds:
1. The government’s payment of witnesses, grants of
immunity, and plea bargaining so distorted the
adversary process at Garcia Abrego’s trial that the
proceedings were rendered fundamentally unfair.
9
2. The district court erred in declining to give a
requested jury instruction explaining the non-
reciprocal nature of the government’s offer of
incentives to witnesses.
3. The district court improperly entered a judgment of
conviction on the charged substantive drug offenses
because it gave the jury a Pinkerton instruction only
with respect to the count charging Garcia Abrego with
conspiracy to possess cocaine and marijuana with intent
to distribute, a count that it later dismissed.
4. Insufficient evidence supported Garcia Abrego’s
convictions of the substantive drug offenses.
5. Insufficient evidence supported Garcia Abrego’s
convictions of money laundering.
6. Insufficient evidence supported Garcia Abrego’s
conviction of conspiracy to launder money.
7. Insufficient evidence supported Garcia Abrego’s
conviction of conducting a CCE.
8. Garcia Abrego’s conviction of conspiracy to launder
money violated the Ex Post Facto Clause because it was
based on conduct that occurred prior to the enactment
of the harsher penalty provisions of 18 U.S.C.
§ 1956(h).
9. Garcia Abrego’s custodial statement at the Houston FBI
office was rendered involuntary by the fact that it
followed an un-Mirandized prior custodial statement
10
made while Garcia Abrego was under the influence of
drugs forcibly administered by authorities bringing
Garcia Abrego to the United States.
10. Garcia Abrego’s inability to understand his Miranda
rights rendered his custodial statement involuntary and
therefore inadmissible on Fifth Amendment grounds.
11. The district court erred in admitting expert testimony
regarding the effect of habitual Valium use.
12. The district court’s order of criminal forfeiture
violated the Double Jeopardy Clause because it was
based in part upon two counts of the indictment that
constituted lesser-included offenses of another offense
of conviction.
13. The district court’s admission of testimony that
implicated Garcia Abrego in several murders violated
Rules 403 and 404(b) of the Federal Rules of Evidence.
14. The district court’s admission of foreign records of
financial transactions into evidence violated 18 U.S.C.
§ 3505, the Confrontation Clause, and a number of the
Federal Rules of Evidence.
We address each of these issues in turn.
A. The Government’s Provision of
Inducements to Its Witnesses
Garcia Abrego contends that the government’s extensive use
of incentives such as motions for downward departure pursuant to
§ 5K1.1 of the Sentencing Guidelines, Rule 35 reductions in
sentence, immigration permits, cash payments, and grants of
11
immunity from prosecution to motivate many government witnesses
to testify denied him his constitutional right to due process.
He argues that, because he was denied the opportunity to offer
similar incentives to obtain testimony, the adversarial process
was skewed to an exceptional degree in the government’s favor and
that his constitutional right to due process was thereby
violated. Garcia Abrego’s claim lacks merit.
This court has observed that “[n]o practice is more
ingrained in our criminal justice system than the practice of the
government calling a witness who is an accessory to the crime for
which the defendant is charged and having that witness testify
under a plea bargain that promises him a reduced sentence.”
United States v. Cervantes-Pacheco, 826 F.2d 310, 315 (5th Cir.
1987) (en banc). We have also noted that a witness who receives
financial compensation in exchange for testimony has less of an
incentive to testify falsely than a witness who testifies in
exchange for a reduced sentence. See
id. Accordingly, “[a]s in
the case of the witness who has been promised a reduced sentence,
it is up to the jury to evaluate the credibility of the
compensated witness.” See
id. at 315.1
1
Garcia Abrego urges us to “reconsider” our decision in
Cervantes-Pacheco. However, in the absence of any intervening
Supreme Court or en banc circuit authority that conflicts with
Cervantes-Pacheco--and Garcia Abrego has pointed to none--we are
bound by our decision in that case. “It has long been a rule of
this court that no panel of this circuit can overrule a decision
previously made by another.” Ryals v. Estelle, 661 F.2d 904, 906
(5th Cir. Nov. 1981). This principle applies a fortiori here
because Cervantes-Pacheco is an en banc decision.
12
We have acknowledged that the government must observe
certain procedural safeguards when it intends to offer testimony
of a witness receiving some sort of compensation for his
testimony. See United States v. Bermea, 30 F.3d 1539, 1552 (5th
Cir. 1994). Specifically, these safeguards include the
following:
The government must not use or encourage the use of
perjured testimony; the government must completely and
timely disclose the fee arrangement to the accused in
accordance with Brady v. Maryland, 373 U.S. 83, 83 S.
Ct. 1194, 10 L. Ed. 2d 215 (1963); the accused must be
given an adequate opportunity to cross-examine the
informant and government agents about any agreement to
compensate the witness; and the trial court should give
a special jury instruction pointing out the suspect
credibility of paid witnesses.
Id. Garcia Abrego does not contend that the government or the
district court failed to comply with any of the above safeguards.
Garcia Abrego contends that he does not seek to resurrect
any per se barrier to the admissibility of testimony by witnesses
compensated by the government. Rather, he contends that “‘due
process’, fundamental fairness and an accused’s meaningful right
to some parity in the compulsory process of witnesses will [not]
tolerate a system that permits only one side of the adversary
process to utilize . . . non-reciprocal incentives to entice
witnesses.” This court rejected a virtually identical argument
in United States v. Thevis, 665 F.2d 616 (5th Cir. Unit B Jan.
1982). In that case, the defendants argued that “the
government’s granting immunity to its witnesses while denying
immunity to [the defendants’ prospective witness] skewed the
evidence against [the defendants] and denied them a fair trial.”
13
Id. at 639. This court rejected the defendants’ argument, noting
that “[n]o Fifth Circuit case has upheld a grant of immunity by a
trial court, and our cases have strongly suggested, without
specifically deciding, that courts lack such power under any
circumstances.”
Id. at 639 n.25. The court observed that the
only situation in which due process even arguably warrants a
judicial grant of immunity to a defense witness is a situation in
which the government abuses its power to grant immunity to such a
degree that it denies the defendant a fair trial. See
id. at
640-41; see also United States v. Bustamante,
45 F.3d 933, 943
(5th Cir. 1995) (“It is also settled that, unless the government
has abused its immunity power, a defendant has no due process
right to have the trial court immunize defense witnesses.”);
United States v. Follin,
979 F.2d 369, 374 (5th Cir. 1992)
(“District Courts have no inherent power to grant immunity. A
district court may not grant immunity simply because a witness
has essential exculpatory evidence unavailable from other
sources.”). Garcia Abrego has alleged no abuse on the part of
the government in this case. Indeed, he has not even alleged the
existence of witnesses who would have been willing to testify in
his favor had he been able to offer them incentives similar to
those offered by the government.
Garcia Abrego nonetheless argues that “the issue here
presented is not whether [a] defendant must be accorded immunity
for defense witnesses, but rather whether and at what point the
prosecution’s advantage in obtaining favorable testimony so
14
substantially distorts the delicately balanced adversarial
process as to render such proceedings unfair.” Garcia Abrego’s
argument thus appears to boil down to a contention that the sheer
number of witnesses who received some sort of consideration from
the government in exchange for their testimony rendered his trial
fundamentally unfair. However, we see no logical basis for
departing from the principle articulated in Cervantes-Pacheco and
Bermea--that “‘it is up to the jury to evaluate the credibility
of a compensated witness’”--based merely upon the number of
witnesses that received inducements from the government in
exchange for their testimony. Bermea, 30 F.3d at 1552 (quoting
Cervantes-Pacheco, 826 F.2d at 315). Garcia Abrego’s claim that
the government violated his right to due process through the use
of inducements to obtain favorable testimony from witnesses
therefore lacks merit.
B. Jury Instruction on the Nonreciprocal
Nature of Inducements to Government Witnesses
Garcia Abrego contends that, even if the pervasiveness of
the government’s practice of compensating its witnesses
monetarily and otherwise did not of itself violate his right to
due process, the district court nonetheless erred in refusing his
proposed jury instruction pointing out the non-reciprocal nature
of such compensation (i.e., the fact that only the government
could offer witnesses incentives such as motions for downward
departure and reduction of sentence) and indicating to the jury
that the government’s witnesses who obtained benefits in exchange
15
for their testimony had a motivation to lie. Garcia Abrego’s
proposed instruction read in pertinent part as follows:
Under the current law, the only way that a
cooperating witness can receive a reduction of his
sentence below the numerically determined guideline
range or the mandatory minimum is if a prosecutor files
a motion with the sentencing judge asking the judge to
reduce the sentence of the witness. You have heard the
terms “5K1.1” and “Rule 35” during this case. Those
are legal terms that refer to motions filed by the
prosecutor to reduce the sentence of a witness based on
the witness’ cooperation and “substantial assistance”
to the government in the arrest or prosecution of
another individual. If the prosecutor files the motion
before the witness is sentenced, the motion is called a
“5K1.1 motion.” If the motion is filed after the
witness is sentenced, it is called a “Rule 35 motion.”
The decision to file a “5K1.1 motion” or “Rule 35
motion” is within the sole discretion of the
prosecutor. Simply because a witness testifies
truthfully does not mean that the prosecutor will file
a “5K1.1 motion” or “Rule 35 motion” on the witness’
behalf.
Sentencing judges are powerless to reduce the
sentence of a cooperating witness below the mandatory
minimum or applicable guideline unless the prosecutor
files the “5K1.1 motion” or “Rule 35 motion” on behalf
of a witness. Moreover, the defense lawyers in this
case have no power to file a “5K1.1 motion” or “Rule 35
motion” on behalf of a witness who testifies, and
therefore, are powerless to help a cooperating witness
receive a reduced sentence.
Therefore, you must carefully evaluate the
testimony of any government witness who is cooperating,
or has cooperated, in exchange for or with the hope
that the prosecutor will file a “5K1.1 motion” or “Rule
35 motion” to reduce the sentence of the witness. You
should consider that such a witness may be motivated to
please the prosecutor, since only the prosecutor, not
the defense lawyers, can help that witness obtain a
reduction of his sentence. You must consider the
testimony of such a witness with great caution and
care.
Garcia Abrego contends that the above instruction was
justified in light of the pervasiveness of the government’s use
16
of inducements to obtain testimony from its witnesses. He argues
that the court’s standard cautionary instruction that the jury
should view the testimony of an “accomplice” or “informer for pay
or for immunity from punishment” with greater caution than other
testimony was insufficient to adequately instruct the jury on
this issue. We disagree.
District courts are afforded “substantial latitude in
formulating jury charges.” United States v. Asibor, 109 F.3d
1023, 1034 (5th Cir.), cert. denied,
118 S. Ct. 254 (1997), and
cert. denied sub nom.,
118 S. Ct. 638 (1997). To that end, we
review a district court’s refusal to give a proposed jury
instruction only for an abuse of discretion. See id.; United
States v. Pineda-Ortuno,
952 F.2d 98, 105 (5th Cir. 1992).
Reversal on the basis of a district court’s rejection of a
proposed jury instruction is appropriate only if the rejected
instruction (1) is substantively correct, (2) is not
substantially covered in the charge given, and (3) pertains to an
important point in the trial such that failure to give the
instruction impairs the defendant’s ability to present a given
defense effectively. See United States v. Pipkin,
114 F.3d 528,
535 (5th Cir. 1997).
The district court’s instructions cautioning the jury
regarding its evaluation of the testimony of accomplices and paid
informants tracks the language of the Fifth Circuit Pattern Jury
Instructions relating to these issues. See COMMITTEE ON PATTERN JURY
INSTRUCTIONS, DISTRICT JUDGES ASS’N FIFTH CIR., PATTERN JURY INSTRUCTIONS
17
(CRIMINAL CASES) 25-26 (1997). This court has held that these
instructions adequately safeguard a criminal defendant when the
government offers the testimony of a compensated informant. See
United States v. Goff, 847 F.2d 149, 161 & n.13 (5th Cir. 1988);
United States v. D’Antignac,
628 F.2d 428, 435-36 n.10 (5th Cir.
1980). The district court could thus properly conclude that the
instruction that it gave covered the substance of Garcia Abrego’s
proposed instruction.2 Therefore, the district court’s rejection
of Garcia Abrego’s proposed jury instruction did not constitute
an abuse of discretion.
C. Impact of the Dismissal of the Drug Conspiracy
Count on the Substantive Drug Convictions
Counts 3-10, 17, and 28 of Garcia Abrego’s indictment
charged him with violations of 21 U.S.C. § 841(a)(1), which
criminalizes the knowing possession of controlled substances,
including cocaine and marijuana, with intent to distribute.
Garcia Abrego contends that his convictions for these substantive
drug offenses are not sustainable on a theory of coconspirator
2
We also note that Garcia Abrego’s proposed instruction,
while perhaps not a technically inaccurate statement of the law,
at a minimum had the potential to confuse or mislead the jury.
The proposed instruction focuses exclusively on the role of the
prosecutor and fails to state expressly that only the court has
the authority to grant a § 5K1.1 or Rule 35 motion. The district
court could thus properly conclude that Garcia Abrego’s proposed
instruction could have given the jury the mistaken impression
that the prosecutor actually possesses the authority to reduce
the sentences of government witnesses. See United States v.
Tucker, 137 F.3d 1016, 1036 (8th Cir. 1998) (holding that the
district court did not abuse its discretion in denying the
defendant’s proposed instruction because it had the potential for
“misleading the jury and would have focussed the jury’s attention
on collateral issues”).
18
vicarious liability. Garcia Abrego notes that the jury received
a Pinkerton instruction in connection with the conspiracy to
possess cocaine with intent to distribute count which instructed
the jury that, if it found Garcia Abrego guilty of that count, it
could convict him of any substantive drug offenses committed by a
coconspirator in furtherance of the conspiracy even though Garcia
Abrego did not participate in the substantive offenses or have
any knowledge of them. See Pinkerton v. United States, 328 U.S.
640, 645-47 (1946). However, after the jury returned a verdict
of guilty with respect to all counts, the district court
dismissed the drug conspiracy count because it constituted a
lesser-included offense of conducting a CCE.
Garcia Abrego argues that he could not be convicted pursuant
to the Pinkerton instruction because the district court dismissed
the drug conspiracy count upon which the charge was based. He
therefore contends that his convictions for the substantive drug
offenses cannot stand because insufficient evidence exists to
prove that he is directly liable for these offenses--that is,
insufficient evidence exists for the jury to conclude beyond a
reasonable doubt that he actually or constructively possessed the
cocaine in question with intent to distribute it. The gist of
Garcia Abrego’s argument appears to be that he cannot be
convicted of the substantive drug offenses on a coconspirator
vicarious liability theory because the district court did not
enter judgment convicting him on the drug conspiracy count even
19
though the jury found him guilty on that count. Garcia Abrego
has cited no authority in support of this contention.
Assuming, merely for the sake of argument, that a conspiracy
conviction is a necessary predicate to a conviction of
substantive offenses on the basis of a theory of coconspirator
vicarious liability, such a conviction exists in this case
because the jury also found Garcia Abrego guilty of conducting a
CCE, and the district court entered a judgment of conviction on
this count. The Supreme Court has held that conspiracy
constitutes a lesser-included offense of conducting a CCE. See
Rutledge v. United States, 517 U.S. 292 (1996). Therefore, in
finding Garcia Abrego guilty of conducting a CCE, the jury
necessarily found that he participated in a conspiracy. Garcia
Abrego’s conviction of conducting a CCE is thus tantamount to a
conspiracy conviction. See United States v. Graewe,
774 F.2d
106, 108 (6th Cir. 1985) (“A [CCE] charge is a conspiracy charge,
and one convicted of a CCE is subject to Pinkerton liability.”).3
3
Garcia Abrego contends that the CCE conviction provides
no basis for sustaining his substantive drug convictions on a
theory of coconspirator vicarious liability because the Pinkerton
instruction did not inform the jury that, if it found Garcia
Abrego guilty of conducting a CCE, it could convict him of any
substantive drug offenses committed in furtherance of the CCE.
However, the authorities that Garcia Abrego cites in support of
this proposition establish nothing more than that the jury charge
must inform the jury of the Pinkerton principle in order for a
conviction of a substantive offense to be sustainable on the
basis of coconspirator vicarious liability. See United States v.
Sanchez-Sotelo, 8 F.3d 202, 208 (5th Cir. 1993); United States v.
Pierce,
893 F.2d 669, 675-76 (5th Cir. 1990). As
indicated
supra, the jury charge accurately apprised the jury of the
Pinkerton principle.
20
The jury instruction in this case expressly apprised the
jury of the Pinkerton principle. As the government observes, in
finding Garcia Abrego guilty of the drug conspiracy count, the
jury found beyond a reasonable doubt that a drug conspiracy
existed and that Garcia Abrego was a voluntary participant in
this conspiracy. Moreover, the district court dismissed the drug
conspiracy count only because it constituted a lesser-included
offense of the CCE count of which the jury also found Garcia
Abrego guilty. We therefore conclude that the district court’s
dismissal of the drug conspiracy count in connection with which
the jury received the Pinkerton instruction does not foreclose
our affirmance of Garcia Abrego’s convictions of the substantive
drug offenses on the basis of coconspirator vicarious liability.
D. Sufficiency of the Evidence Supporting the
Substantive Drug Convictions
Garcia Abrego further argues that, even if the district
court’s dismissal of the drug conspiracy count in connection with
which the jury received the Pinkerton instruction does not
foreclose our affirmance of his convictions on the substantive
drug counts on a theory of coconspirator vicarious liability, we
must nonetheless reverse these convictions because insufficient
evidence exists to support them on the basis of such a theory.
We disagree.
Criminal convictions are supported by sufficient evidence
“if a reasonable trier of fact could conclude that the elements
of the offense were established beyond a reasonable doubt,
viewing the evidence in the light most favorable to the jury's
21
verdict and drawing all reasonable inferences from the evidence
to support the verdict.” United States v. Mmahat, 106 F.3d 89,
97 (5th Cir.), cert. denied,
118 S. Ct. 200 (1997). As indicated
below, we conclude that, viewing the evidence in the light most
favorable to the verdict, the jury could have concluded beyond a
reasonable doubt (1) that Garcia Abrego was involved in a
criminal conspiracy and (2) that the substantive drug offenses
were committed in furtherance of the conspiracy. We therefore
conclude that sufficient evidence exists to support Garcia
Abrego’s convictions of the substantive drug counts.
1. Sufficiency of the evidence
establishing a conspiracy
Circumstantial evidence may establish the existence of a
conspiracy, as well as an individual’s voluntary participation in
it, and “[c]ircumstances altogether inconclusive, if separately
considered, may, by their number and joint operation . . . be
sufficient to constitute conclusive proof.” United States v.
Roberts, 913 F.2d 211, 218 (5th Cir. 1990) (internal quotation
marks omitted). “Therefore, we have consistently held that the
jury may infer the existence of a conspiracy from the presence,
association, and concerted action of the defendant with others.”
United States v. Gonzales,
121 F.3d 928, 935 (5th Cir. 1997),
cert. denied,
118 S. Ct. 726 (1998), and cert. denied,
118 S. Ct.
1084 (1998). To be convicted of engaging in a criminal
conspiracy, an individual “need not know all the details of the
unlawful enterprise or know the exact number or identity of all
the co-conspirators, so long as he knowingly participates in some
22
fashion in the larger objectives of the conspiracy.” United
States v. Westbrook, 119 F.3d 1176, 1189 (5th Cir. 1997), cert.
denied sub nom.,
118 S. Ct. 1059 (1998), and cert. denied sub
nom.,
118 S. Ct. 1060 (1998); see also United States v.
Fernandez-Roque,
703 F.2d 808, 814-15 (5th Cir. 1983).
Furthermore, a conviction may be sustained solely on the basis of
the testimony of a coconspirator--even a coconspirator who
testifies on the basis of a plea bargain or promise of leniency--
so long as that testimony is not incredible as a matter of law--
that is, so long as it does not defy the laws of nature or relate
to matters that the witness could not have observed. See
Bermea,
30 F.3d at 1552.
In this case, the record contains evidence more than ample
to support the jury’s conclusion that Garcia Abrego engaged in a
conspiracy that had as its objects the violation of federal
narcotics and money laundering laws. The testimony of numerous
coconspirators establishes that Garcia Abrego cast a
conspiratorial net that was far-reaching and encompassed a large
number of individuals who aided in his drug trafficking
enterprise. Outlined below is the testimony that established the
general framework of Garcia Abrego’s organization.
Carlos Resendez testified that he engaged in the drug
trafficking business with Garcia Abrego beginning in 1976 and
later went to work for him in that business full time, continuing
until his arrest in April 1994. Resendez testified that Garcia
Abrego met directly with Luis Medrano, Oscar Malherbe, and Sergio
23
“Checo” Gomez regarding the narcotics trafficking business. He
also testified that Garcia Abrego was Medrano and Malherbe’s
boss, as well as the head of the entire drug organization.
Francisco Perez testified that he began moving drugs for Garcia
Abrego in 1980 and continued to do so until his arrest in August
1993. Agent Claudio DeLaO testified that, during conversations
with Luis Medrano, Medrano referred to Garcia Abrego as “El Jefe”
and “Patron,” both Spanish words signifying substantial
authority. In a recorded statement, Medrano also stated that he
went to work for “El Jefe” after Casimiro Espinoza, Medrano’s
former employer in the drug trafficking business, was killed.
According to the testimony of a number of Garcia Abrego’s
coconspirators, including Carlos Rodriguez, Tomas “Gringo”
Sanchez supervised cocaine distribution for Garcia Abrego’s group
in the New York area until he was killed.
The individuals who worked directly with Garcia Abrego,
along with Sanchez, arranged for the transportation of drugs and
proceeds from their sale in the United States through a number of
other individuals. Tony Ortiz testified that he transported
cocaine into the United States at the direction of Luis Medrano.
Francisco Segura testified that he originally worked for Tony
Ortiz and was later ordered by Medrano and Malherbe to collect
drug debts in New York. Carlos Rodriguez testified that he began
trafficking cocaine at the direction of Medrano and Malherbe in
1986 and that they dictated the Colombian cartel with whom he was
allowed to do business. William Allen Hoffman testified that he
24
delivered ten to twenty loads of cocaine for Medrano and that,
when he delivered loads to New York, his contact person there was
Sanchez. Jaime Rivas testified that he transported cocaine from
Harlingen to Houston for Luis Medrano and that he met with
Medrano regarding the transportation of cocaine up to two or
three times per week. Rivas also testified that Elias “El Profe”
Garcia and Hilario Gonzalez were involved in arranging
transportation of cocaine for the group. Tony Ortiz testified
that Juan Ibarra worked for Sanchez receiving cocaine and
arranging for the shipment of drug proceeds back down south to
Houston. Horace Vega, who testified that he moved money for the
group and acted as a confidential informant for the FBI,
testified that Ibarra replaced Sanchez as the point man for the
group’s operations in New York after Sanchez was killed.
A number of coconspirators testified that Garcia Abrego
utilized several individuals to manage the proceeds of his drug
trafficking enterprise. Francisco Perez testified that Fernando
Herrerra was in charge of managing Garcia Abrego’s drug proceeds.
Perez also testified that Garcia Abrego instructed Ricardo
Aguirre, who the documentary evidence indicated was listed as a
beneficial owner on several of the investment accounts in which
Garcia Abrego placed his drug proceeds, to move $25 million from
Mexico to the United States during the time period that Garcia
Abrego was hiding in Chicago as a result of increased pressure
and property seizures by Mexican authorities. Additionally, a
25
number of witnesses testified that Garcia Abrego’s group employed
a number of pilots, hit men, and body guards.
Garcia Abrego himself told federal law enforcement officials
during an interview that he began trafficking marijuana in 1979
and switched to cocaine in 1987. He stated that he moved between
800 and 1000 pounds of marijuana and 100 kilograms of cocaine per
month. He also stated that he progressed to moving loads of
cocaine ranging from 150 to 200 kilograms. He told federal law
enforcement agents that he moved narcotics across the U.S./Mexico
border with the assistance of Mexican judicial police, who would
inform him when he could safely move a load across the border.
Clearly the jury was presented with sufficient evidence for
it to rationally conclude beyond a reasonable doubt that a wide-
ranging criminal conspiracy of which Garcia Abrego knew and in
which he participated existed. Furthermore, sufficient evidence
existed for the jury to rationally conclude beyond a reasonable
doubt that each of the substantive drug offenses charged was
committed in furtherance of the conspiracy.
2. Sufficiency of the evidence linking the
substantive drug offenses to the conspiracy
As an initial matter, we note that Garcia Abrego does not
contest that sufficient evidence exists to prove that the
substantive drug offenses alleged were committed by someone;
rather he alleges that the evidence was insufficient to link the
offenses to him. We conclude that sufficient evidence existed
for the jury to conclude that each of the substantive drug
26
offenses was committed by one or more of Garcia Abrego’s
coconspirators in furtherance of the conspiracy.
Count 3 of the indictment was based upon the seizure of 825
kilograms of cocaine at the Sarita, Texas border patrol
checkpoint on March 14, 1989. The cocaine was discovered in a
secret compartment in an 18-wheeler driven by Raciel Garcia
Contreras and also occupied by Juan David Garcia. Jaime Rivas
testified that he informed Medrano about the load of cocaine lost
at the Sarita checkpoint and that Medrano instructed Malherbe to
tell “El Señor” about the lost load. At this point, Medrano
informed Rivas that Garcia Abrego was the boss and that he had to
be told about the seizure. From this evidence, the jury could
reasonably conclude that the drug offense described in count 3
was committed by Garcia Abrego’s coconspirators in furtherance of
the conspiracy.
Count 4 was based upon the seizure of 291 kilograms of
cocaine from a Tioga motor home driven by William Hoffman in
Queens, New York on May 3, 1989. Hoffman testified that he
purchased the motor home at the direction of Medrano and that
Medrano instructed him to take the motor home to Grand Prairie,
Texas to have a false bottom put in it. Hoffman also testified
that the seized cocaine was loaded into the motor home under the
supervision of Hilario Gonzalez and at the direction of Elias “El
Profe” Garcia. From this evidence, the jury could reasonably
conclude that the drug offense described in count 4 was committed
27
by Garcia Abrego’s coconspirators in furtherance of the
conspiracy.
Count 5 of the indictment was based in part upon the seizure
of 415 kilograms of cocaine from the residence of Frederico
Munguia on Krenek Road in Houston, Texas on August 28, 1989.
Carlos Rodriguez testified that Munguia transported cocaine for
the drug organization with which he, Garcia Abrego, Medrano, and
Malherbe were involved. Additionally, Rivas testified that, on
August 29, 1989, he contacted Medrano and told him that the
cocaine that he had delivered to Munguia the previous evening had
been seized. According to Rivas, Medrano then instructed him to
contact Munguia in San Antonio and have him come to Houston.
Based upon this evidence, the jury could reasonably conclude that
the drug offense charged in count 5 was committed by Garcia
Abrego’s coconspirators in furtherance of the conspiracy.
Count 6 was based upon the seizure of twenty kilograms of
cocaine from a mustang driven by Emilio Rivera as he left the
residence of Hilario Gonzalez’s father-in-law on Arrowrock Road
in Houston and 160 kilograms of cocaine seized from the residence
itself on September 18, 1989. Rivas testified that Gonzalez used
the Arrowrock residence to store cocaine that Rivas delivered to
him in Houston. Additionally, Rivas testified that Medrano
informed him of the seizure of cocaine at the Arrowrock
residence. From this evidence, the jury could reasonably
conclude that the drug offense charged in count 6 was committed
28
by Garcia Abrego’s coconspirators in furtherance of the
conspiracy.
Count 7 was based upon the seizure of 645 kilograms of
cocaine from a residence on Ridgeside Street in North Houston.
FBI agents testified that, prior to the seizure, they were
conducting surveillance at Bonnie’s Nursery, a nursery near
Humble, Texas on September 22, 1989. The agents observed a large
white refrigerator truck and a van. The agents testified that
several individuals were taking items out of the truck and
placing them in the van. The vehicles departed. Subsequently,
FBI agents had local law enforcement officials stop the truck,
and the driver was identified as Jaime Rivas. The van drove to
the Ridgeside residence and backed up to the residence’s garage.
An FBI agent walked by the residence and overheard the sound of
heavy objects being dropped and dragged across the floor of the
garage. A later search of the residence uncovered 645 kilograms
of cocaine in military-style duffle bags of a type similar to
duffle bags found by the FBI at Bonnie’s Nursery. Rivas
testified that he was subsequently informed of the seizure by
Elias “El Profe” Ruiz. From this evidence, the jury could
reasonably conclude that the drug offense described in count 7
was committed by Garcia Abrego’s coconspirators in furtherance of
the conspiracy.
Count 8 was based upon the seizure of approximately 9 tons
of cocaine from a residence on Bass Boulevard near Harlingen,
Texas on October 4, 1989. Rivas testified that he moved between
29
30,000 and 40,000 kilograms of cocaine through the Bass Boulevard
location. Law enforcement officials also seized ledgers at the
Bass Boulevard residence indicating that cocaine had been shipped
from the location on August 28, 1989, the same date as the
seizure of cocaine at Krenek Road, and indicating that 645
kilograms of cocaine had been shipped at some point prior to
September 29, 1989, which coincided with the size and date of the
shipment seized from the Ridgeside residence on September 22,
1989.
Francisco Perez testified that he showed Garcia Abrego a
newspaper article reporting the Bass Boulevard seizure and that,
in response, Garcia Abrego stated that “the boys had goofed.”
Perez also testified that everyone in the drug trafficking
organization, including Garcia Abrego, referred to Medrano and
Malherbe as “the boys.” Resendez testified that he had a
conversation with Garcia Abrego about the Bass Boulevard seizure.
He testified that Garcia Abrego was angry and stated that the
seizure was a result of having too many people involved in the
organization. He also testified that Garcia Abrego stated that
the individuals arrested in connection with the Bass Boulevard
seizure had been calling, asking him for help. Based upon this
evidence, the jury could reasonably conclude that the drug
offense charged in count 8 was committed by Garcia Abrego’s
coconspirators in furtherance of the conspiracy.
Count 9 was based upon the seizure of 603 kilograms of
cocaine from a tractor-trailer rig stuck in a ditch at a
30
warehouse located on Almeda-Genoa in Houston on November 6, 1989.
The warehouse was located directly in front of a house on South
Wayside, a street that runs perpendicularly to Almeda-Genoa. A
search of the house on South Wayside revealed duffle bags similar
to the ones discovered in the search of Bonnie’s Nursery. Rivas
testified that an individual he knew as “Bono,” whom an FBI agent
identified as Jose Bernardo Nieto, had previously shown him the
Almeda-Genoa warehouse and indicated that it was a potential
delivery point for cocaine in Houston. Rivas also testified
that, during a telephone conversation, Nieto told him that he had
lost a load of cocaine at the Almeda-Genoa warehouse. Tony Ortiz
testified that he had met Nieto at Medrano’s home, where Nieto
was meeting with Medrano to discuss cocaine transportation.
According to Ortiz, Nieto had lost a load of the organization’s
cocaine, and Medrano did not want to use him for transportation
anymore. Medrano met with Nieto to make arrangements for Nieto
to turn over the cocaine that he still had to Ortiz for
transportation. Based upon this evidence, the jury could
reasonably conclude that the drug offense described in count 9
was committed by Garcia Abrego’s coconspirators in furtherance of
the conspiracy.
Count 10 was based upon the seizure of two loads of cocaine,
both in excess of 300 kilograms, from the Nole Hace Ranch and
from a mobile home in Jones Creek, Texas. One of the FBI agents
involved in the seizure at the Almeda-Genoa warehouse testified
that he was conducting surveillance at the Wharton airport in
31
Houston and that he observed a blue pickup registered to
Guadalupe Velez. The agent testified that he had previously
observed a black pickup registered to Velez at the Almeda-Genoa
warehouse. FBI agents followed the blue pickup to the Nole Hace
Ranch, which is located near Clute, Texas. As the blue pickup
drove into the ranch, it was met by the black pickup that agents
had previously observed at the Almeda-Genoa warehouse. Both
trucks drove back toward the ranch. Later that afternoon, the
blue truck drove back to the Wharton airport and then to the
mobile home in Jones Creek, which was owned by Guadalupe Velez’s
sister. FBI agents subsequently searched the mobile home and the
Nole Hace Ranch, discovering more than 300 kilograms of cocaine
at each location. Phone records seized at the Almeda-Genoa
warehouse and the Nole Hace Ranch indicated that one telephone
call had been made from the South Wayside house located behind
the Almeda-Genoa warehouse to the Nole Hace Ranch and that four
telephone calls were made from the Nole Hace Ranch to the South
Wayside house. As noted earlier, Rivas testified that the
Almeda-Genoa warehouse was a potential delivery point for the
organization’s cocaine. Based upon this testimony, in connection
with the circumstantial evidence surrounding the two seizures at
issue in count 10, the jury could reasonably infer that the drug
offense described in count 10 was committed by Garcia Abrego’s
coconspirators in furtherance of the conspiracy.
Count 17 was based upon the seizure of 850 kilograms of
cocaine recovered from a warehouse on Sunshine Strip in Harlingen
32
leased to Benito Gonzales and a truck that was searched shortly
after it left the warehouse. Benito Gonzales was the brother of
Marcos Gonzales, who Tony Ortiz testified worked for him
transporting cocaine. Ortiz also testified that Benito Gonzales
helped his brother in picking up, packaging, and delivering
cocaine. Prior to searching the truck, U.S. customs officials
had executed a search warrant on the warehouse and discovered
metal boxes filled with cocaine and sealed inside wooden crates.
Upon searching the truck, customs officials found cocaine packed
in the same manner. This evidence, combined with Tony Ortiz’s
testimony regarding his involvement in the overall conspiracy
constitutes ample evidence from which the jury could reasonably
conclude that the drug offense charged in count 17 was committed
by Garcia Abrego’s coconspirators in furtherance of the
conspiracy.
Count 28 was based upon the seizure of 1000 kilograms of
cocaine that were delivered to the New Jersey warehouse of George
Paulicastro, an individual who was cooperating with the DEA.
Carlos Rodriguez testified that he arranged shipments of cocaine
to George Paulicastro’s warehouse in New Jersey. A special agent
for the DEA testified that, when the load of cocaine reached
Paulicastro’s warehouse on April 3, 1993, all but 10 kilograms of
it was replaced with fake cocaine. Carlos Rodriguez testified
that he was arrested in connection with the delivery. On April
9, 1993, Paulicastro delivered the cocaine in a rental truck to
Francisco Segura. Segura was later arrested, and at that time he
33
had in his possession a telephone book containing a code that
Segura testified was given to him by Medrano for use in
deciphering encoded telephone numbers given to Segura by group
members. Based upon this evidence, the jury could reasonably
conclude that the drug offense described in count 28 was
committed by Garcia Abrego’s coconspirators in furtherance of the
conspiracy.
E. Sufficiency of the Evidence Supporting the
Substantive Money Laundering Convictions
Garcia Abrego claims that insufficient evidence exists to
support his convictions of money laundering in violation of 18
U.S.C. § 1956(a)(1)(A)(i) and (a)(2)(A). We conclude, however,
that the government adduced evidence sufficient to support each
count of conviction.
1. Section 1956(a)(1)(A)(i)
Counts 2, 11-13, and 16 charged Garcia Abrego with
laundering money in violation of 18 U.S.C. § 1956(a)(1)(A)(i),
which criminalizes engaging in a financial transaction involving
the proceeds of an unlawful activity with the intent to promote
a specified unlawful activity.4 For purposes of § 1956(a)(1), a
4
Section 1956(a)(1) provides in relevant part as follows:
(a)(1) Whoever, knowing that the property involved in a
financial transaction represents the proceeds of some
form of unlawful activity, conducts or attempts to
conduct such a financial transaction which in fact
involves the proceeds of specified unlawful activity--
(A)(i) with the intent to promote the carrying on
of specified unlawful activity . . .
shall be sentenced to a fine of not more than $500,000
or twice the value of the property involved in the
transaction, whichever is greater, or imprisonment for
34
transaction is “‘a purchase, sale, loan, pledge, gift, transfer,
delivery, or other disposition’ or some action involving a
financial institution or its facilities.” United States v. Puig-
Infante, 19 F.3d 929, 938 (5th Cir. 1994) (quoting 18 U.S.C.
§ 1956(c)(3)). “‘Disposition’ most commonly means ‘a placing
elsewhere, a giving over to the care or possession of another.’”
Id. (quoting WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY 654 (Philip
Babcock Grove ed. 1961)).5
Garcia Abrego contends that the evidence adduced at trial
was insufficient to support his convictions for counts 2, 11-13,
and 16 because (1) the government failed to prove a transaction
involving the funds at issue in each count because it offered no
evidence of a disposition of the funds and (2) none of the funds
were transferred to Garcia Abrego.6 We disagree. Sufficient
not more than twenty years, or both.
18 U.S.C. § 1956(a)(1).
5
A particular transaction constitutes a “financial
transaction” if it “in any way or degree affects interstate or
foreign commerce [and] (i) involv[es] the movement of funds by
wire or other means or (ii) involv[es] one or more monetary
instruments.” 18 U.S.C. § 1956(c)(4)(A); see also Puig-Infante,
19 F.3d at 938. As indicated infra, Garcia Abrego challenges
only the sufficiency of the evidence to establish that the funds
at issue in each count alleging a violation of § 1956(a)(1)(A)(i)
were involved in a transaction. He does not contend that any
transaction in which the government proved the funds were
involved did not meet the above definition of financial
transaction. Therefore, we address only the issue of whether
sufficient evidence existed for the jury to conclude beyond a
reasonable doubt that the funds at issue in each count were
subject to a transaction.
6
Garcia Abrego does not challenge the sufficiency of the
evidence to establish that the money at issue in each of the
money laundering counts constituted the proceeds of narcotics
35
evidence exists for the jury to conclude that the funds at issue
in each of these counts were utilized in some form of transaction
and that the money laundering offenses were committed by Garcia
Abrego’s coconspirators in furtherance of the conspiracy
described in Part III.D.1, supra.
Count 2 was based upon the seizure of $4,012,549 on February
4, 1989 from a secret compartment in a van at Rapid Truck Repair
in Houston. A special agent for the Criminal Investigation
Division of the Internal Revenue Service testified that, on
February 1, 1989, Alexander Guzman and Hector Castano had driven
the van to Memorial City Mall. At the mall, they turned the van
over to Fernando Cordona and Henry Cortez, who had arrived at the
mall in another vehicle. From this point forward, law
enforcement officials maintained constant surveillance of the van
until the time of its seizure. Cordona and Cortez took the van
to a residence on Langbourne Street in Houston. The next day,
Cortez drove the van back to Memorial City Mall and turned it
over to an unidentified individual who drove the van to Rapid
Truck Repair. The jury could reasonably conclude that this
series of events involved one or more dispositions of the money
later recovered from the van because, on more than one occasion,
the van, along with its contents, was “giv[en] over to the care
or possession of another.” Puig-Infante, 19 F.3d at 938
(internal quotation marks omitted).
trafficking or that the transfers at issue were made for the
purpose of promoting narcotics trafficking activity.
36
Jaime Rivas testified that he was responsible for delivering
the load of money seized at Rapid Truck Repair to Matamoros,
Mexico and that he received his instructions on the disposition
of the money from Luis Medrano. From this testimony, the jury
could reasonably conclude that the money laundering offense
described in count 2 was committed by Garcia Abrego’s
coconspirators in furtherance of the conspiracy.
Count 11 was based upon the seizure of $2.4 million that
resulted from the search of a Jeep Wagoneer driven by Juan Miguel
“Gordo” Lizardi Garcia at the International Bridge. Carlos
Resendez testified that Lizardi Garcia worked for Garcia Abrego’s
organization. An FBI agent testified that, prior to this
seizure, law enforcement officials intercepted a telephone
conversation between Tomas “Gringo” Sanchez and Hilario Gonzales.
Hilario Gonzales subsequently ordered Guadalupe Manuel Lopez to
rent a large U-Haul truck, load it with clothing and furniture,
and turn it over to other individuals in the southwest part of
Houston. Law enforcement officials observed Lopez comply with
these orders on April 7, 1997. The individuals to whom Lopez
turned over the truck drove it to the Southwest Terrace
Apartments on Bassford in Houston. Tony Ortiz testified that he
had an apartment in this complex.
Two days later, Lopez drove the truck to a residence in
Brownsville on Monterey Street. He then turned the vehicle over
to some individuals at that residence and left for the airport.
Law enforcement officials then observed these unidentified
37
individuals unload the contents of the truck, dumping all of the
clothing and furniture into the yard and taking 21 U-Haul boxes
into the house. Law enforcement officers maintained surveillance
on the Monterrey Street house until April 11, 1990. The entire
time, the clothing and furniture remained dumped in the yard.
Law enforcement officials also observed a Jeep Wagoneer at the
Monterey Street house. On April 11, Lizardi Garcia was stopped
on the International Bridge in this same Jeep Wagoneer. A search
of the vehicle revealed U-Haul boxes filled with bundles of U.S.
currency.
The above evidence would allow the jury to conclude that the
funds seized from the Jeep Wagoneer had been “giv[en] over to the
care or possession of another” one or more times, thus
establishing the transaction element of the money laundering
offense. Puig-Infante, 19 F.3d at 938 (internal quotation marks
omitted). Furthermore, the involvement of Tomas “Gringo” Sanchez
and the use of Tony Ortiz’s apartment in transporting the money,
along with Resendez’s testimony that Lizardi Garcia worked for
Garcia Abrego’s group, provides sufficient evidence for the jury
to reasonably conclude that the money laundering offense
described in count 11 was committed by Garcia Abrego’s
coconspirators in furtherance of the conspiracy.
Count 12 is based upon $108,000 that Horace Vega received at
Carpet Masters in Houston from Jesse Ceballos on February 23,
1991. Vega testified that, in January 1991, he met with Luis
Medrano and discussed building a frozen food warehouse that would
38
be used to distribute cocaine. Medrano agreed to pay the $3.5
million necessary to set up the warehouse. He stated that he
would provide Vega with $100,000 to secure a contract for the
warehouse’s construction and would pay $1 million a week after
the contract was secured. Thereafter, he would pay $1 million
per year until the contract price was paid. Medrano told Vega
that he would receive the money from Jesse Ceballos and Juan
Ibarra in Houston.
On two subsequent occasions, Vega attempted to arrange to
pick up the $100,000 in Houston, but did not receive it. On the
second attempt, Juan Ibarra told him that he could not pay the
$100,000 because the group was attempting to reestablish
protection in Mexico. Thereafter, Vega spoke with Medrano again,
and Medrano became upset when he found out that Vega had not been
able to pick up the money necessary to secure a contract for the
warehouse. In a later taped conversation, Vega and Jesse
Ceballos arranged for Vega to pick up the money at Carpet
Masters. The transfer of the $108,000 to Vega clearly
constituted “a giving over to the care or possession of another,”
and thus a transaction for purposes of establishing a money
laundering offense. Puig-Infante, 19 F.3d at 938. Additionally,
the involvement of Luis Medrano in the transfer and the fact that
the transfer was made to facilitate the building of a warehouse
to be used to distribute narcotics provide ample basis for the
jury to conclude that the offense described in count 12 was
39
committed by Garcia Abrego’s coconspirators in furtherance of the
conspiracy.
Count 13 was based upon Vega’s receipt of $50,000 from Alex
Ceballos, the brother of Jesse Ceballos, at Carpet Masters on May
3, 1991. In recorded conversations on May 2, 1991, Vega and
Jesse Ceballos discussed Vega’s having a secret compartment built
into a trailer for the transport of cocaine. Vega told Ceballos
that he would need $50,000 to have this done. Additionally, Juan
Ibarra was present when Vega picked up the money on May 3, 1991.
The conveyance of the money to Vega constituted a transaction.
Given that Medrano had previously told Vega to contact Ceballos
and Ibarra in connection with another transaction, the jury had
ample basis for concluding that the money laundering offense
described in count 13 was committed by Garcia Abrego’s
coconspirators in furtherance of the conspiracy.
Count 16 was based upon Vega’s payment of $7,965 for 8 trash
compactors and 700 bags for use in packaging marijuana. Vega
testified that he received orders from Jesse Ceballos to purchase
the trash compactors because Luis Medrano needed them to package
40,000 pounds of marijuana. The government offered into evidence
a recorded conversation between Vega and Ceballos to this effect.
Vega testified that he then went to Houston, met up with Oscar
Abelenda, a cocaine dealer who was a customer of Ceballos. Vega
and Abelenda then purchased the trash compactors and bags. The
jury could reasonably conclude that Vega’s purchase of the trash
compactors and bags entailed a transaction within the meaning of
40
§ 1956(a)(1). See 18 U.S.C. § 1956(c)(3) (defining transaction
to include a purchase). Further, based upon the fact that Vega
undertook the transaction pursuant to orders from Medrano to
purchase materials and equipment necessary to facilitate drug
trafficking, the jury could reasonably conclude that the offense
described in count 16 was committed by Garcia Abrego’s
coconspirators in furtherance of the conspiracy.
2. Section 1956(a)(2)(A)
Counts 14, 15, and 27 charged Garcia Abrego with violation
of 18 U.S.C. § 1956(a)(2)(A), which criminalizes the
transportation, transmission, or transfer of a monetary
instrument or funds from a place inside the United States to a
place outside the United States with the intent to promote the
carrying on of a specified unlawful activity. See United States
v. Savage, 67 F.3d 1435, 1440 (9th Cir. 1995).7 As with the
substantive drug offenses, Garcia Abrego does not contend that
the evidence was insufficient to establish that the offenses
7
Section 1956(a)(2) provides in relevant part as follows:
(2) Whoever transports, transmits, or transfers, or
attempts to transport, transmit, or transfer a monetary
instrument or funds from a place in the United States
to or through a place outside the United States or to a
place in the United States from or through a place
outside the United States--
(A) with the intent to promote the carrying on of
specified unlawful activity . . .
shall be sentenced to a fine of not more than $500,000
or twice the value of the monetary instrument or funds
involved in the transportation, transmission, or
transfer whichever is greater, or imprisonment for not
more than twenty years, or both.
18 U.S.C. § 1956(a)(2).
41
charged in counts 14, 15, and 27 occurred.8 Rather, he contends
that insufficient evidence exists to link him to the offenses.
However, as with the counts alleging violations of
§ 1956(a)(1)(A)(i), we conclude that sufficient evidence exists
to demonstrate that the offenses were committed by Garcia
Abrego’s coconspirators in furtherance of the conspiracy.
Accordingly, Garcia Abrego’s convictions are sustainable on a
theory of coconspirator vicarious liability.
Count 14 was based upon the delivery of $1.4 million of the
organization’s funds from Houston to Matamoros, Mexico on
September 7, 1991. Vega testified that, on September 6, 1991, he
picked up $1.4 million from Jesse Ceballos at a residence in
Houston pursuant to instructions from Malherbe and Medrano. He
further testified that, pursuant to his instructions from the
prior day, on September 7, 1991, he turned the money over to an
8
Garcia Abrego asserts that the funds at issue in these
counts were not exported to Matamoros, Mexico. However, with
respect to counts 14 and 15, the record citations that he
provides in support of this proposition do not indicate that the
funds at issue were not exported to Matamoros, Mexico.
Furthermore, as indicated infra, the evidence presented at trial
indicated that the funds at issue in these two counts were
transported across the Mexican border, which satisfies
§ 1956(a)(2)(A)’s requirement that the funds be transferred from
a point inside the United States to a point outside the United
States.
Furthermore, as indicated infra, the funds at issue in count
27 were seized from a vehicle on the International Bridge driving
toward Mexico. The fact that the funds were seized before they
actually passed from the United States into Mexico is irrelevant
for purposes of § 1956(a)(2)(A) because the statute also
criminalizes an “attempt[] to transport, transmit, or transfer a
monetary instrument or funds from a place in the United States to
or through a place outside the United States.” 18 U.S.C.
§ 1956(a)(2) (emphasis added).
42
individual that he knew as Pinata, who transported the money into
Mexico. Based upon Vega’s testimony that he acted at the behest
of Malherbe and Medrano, the jury could reasonably conclude that
the money laundering offense described in count 14 was committed
by Garcia Abrego’s coconspirators in furtherance of the
conspiracy.
Count 15 was based upon the delivery of $1.463 million of
the organization’s money from Houston to Matamoros on September
26, 1991. Vega testified that, pursuant to instructions from
Jesse Ceballos, he picked up the money in Houston on September
25, 1991. He testified that he then drove the money to the Rio
Grande Valley, where he met Carlos Salazar. From there,
Salazar’s sister, Ninfa Lopez, drove Vega’s vehicle, and Vega
road with Salazar to the Mexican border. At the border, Salazar
told a Mexican Customs official that they worked for El Señor,
and they were waived through. Vega testified that they then
delivered the money to Matamoros. Based upon this testimony, the
jury could reasonably conclude that the money laundering offense
described in count 15 was committed by Garcia Abrego’s
coconspirators in furtherance of the conspiracy.
Count 27 was based upon the seizure of $528,000 from a
vehicle driven by Roberto Villareal as he attempted to cross into
Mexico on the International Bridge on May 6, 1992. Carlos
Rodriguez testified that Villareal was the cousin of Sergio
“Checo” Gomez and that he was helping the organization smuggle
drug proceeds into Mexico at the time of this seizure. Based
43
upon this testimony, the jury could reasonably conclude that the
money laundering offense described in count 27 was committed by
Garcia Abrego’s coconspirators in furtherance of the conspiracy.
F. Sufficiency of the Evidence Supporting
the Conviction for Conspiracy to Launder Money
Count 18 of Garcia Abrego’s indictment charged him with
conspiracy to launder money in violation of 18 U.S.C. § 1956(h).
Section 1956(h) provides as follows:
Any person who conspires to commit any offense defined
in this section or section 1957 shall be subject to the
same penalties as those prescribed for the offense the
commission of which was the object of the conspiracy.
18 U.S.C. § 1956(h). This court has not had occasion to
determine what elements of proof are necessary to establish a
violation of § 1956(h). However, the Third Circuit has held that
a conviction for violation of § 1956(h) requires that the
government prove the following three elements:
(1) the conspiracy, agreement, or understanding to
commit money laundering was formed, reached, or entered
into by two or more persons; (2) at some time during
the existence or life of the conspiracy, agreement, or
understanding, one of its alleged members knowingly
performed one of the overt acts charged in the
indictment in order to further or advance the purpose
of the agreement; and (3) at some time during the
existence or life of the conspiracy, agreement, or
understanding, the defendant knew the purpose of the
agreement, and then deliberately joined the
conspiracy, agreement or understanding.
United States v. Conley, 37 F.3d 970, 976-77 (3d Cir. 1994).
The Supreme Court has held that a conviction of conspiracy
to commit a drug crime in violation of 21 U.S.C. § 846 does not
require proof of an overt act in furtherance of the conspiracy.
See United States v. Shabani, 513 U.S. 10, 15 (1994). Section
44
846 has language virtually identical to the language of
§ 1956(h).9 Neither the Supreme Court nor this court has had
occasion to determine whether 18 U.S.C. § 1956(h) also lacks an
overt act requirement. We need not address this issue here
because the substantive money laundering offenses discussed in
Parts III.E.1 and III.E.2, supra, satisfy an overt act
requirement, should such a requirement exist.
Because we have concluded that Garcia Abrego’s convictions
for laundering money in violation of § 1956(a)(1)(A)(i) and
(a)(2)(A) are sustainable on a theory of coconspirator vicarious
liability, we necessarily conclude that sufficient evidence
exists for the jury to have concluded beyond a reasonable doubt
that Garcia Abrego knowingly participated in a conspiracy, one of
the objects of which was to commit money laundering offenses
involving drug proceeds.
G. Sufficiency of the Evidence Supporting
the Conviction for Conducting a CCE
Count 20 of Garcia Abrego’s indictment charged him with
conducting a CCE in violation of 21 U.S.C. § 848. “A conviction
for [CCE] requires proof that a defendant organized, supervised
or managed five or more persons in a continuing series of drug
9
Section 846 provides as follows:
Any person who attempts or conspires to commit any
offense defined in this subchapter shall be subject to
the same penalties as those prescribed for the
offense, the commission of which was the object of the
attempt or conspiracy.
21 U.S.C. § 846.
45
violations from which the defendant obtained substantial income.”
United States v. Sotelo, 97 F.3d 782, 789 (5th Cir.), cert.
denied sub nom.,
117 S. Ct. 620 (1996), and cert. denied, 117 S.
Ct. 1002 (1997), and cert. denied sub nom.,
117 S. Ct. 1324
(1997); see also Garrett v. United States,
471 U.S. 773, 786
(1985). Garcia Abrego argues that the government failed to prove
that he derived substantial income from the sale of narcotics and
that he organized, led, managed, or supervised five or more
individuals. We reject both of these contentions.
1. Substantial Income
In support of his contention that the government failed to
prove that he derived substantial income from the sale of
narcotics, Garcia Abrego merely cross-references those portions
of his brief arguing that insufficient evidence existed to
convict him of laundering money and that the district court
improperly allowed the admission of foreign bank records. As
indicated in Part III.E, supra, we reject Garcia Abrego’s
argument that insufficient evidence existed to support his
convictions for money laundering. As indicated in Part III.N,
infra, we reject his argument that the district court improperly
admitted the foreign financial records.
Moreover, in May 1988, Dr. Victor Leal, a Brownsville-area
ophthalmologist whom Garcia Abrego used as a liason for
communicating with Agent DelaO, told DelaO in a recorded
conversation that, ten years ago Garcia Abrego was a factory
worker and that now he was a “big boss.” Francisco Perez
46
testified that Garcia Abrego told him that he had ordered Ricardo
Aguirre to launder $25 million of his money. Carlos Resendez
testified that Garcia Abrego told him that he had $30-35 million
in Ricardo Aguirre’s name. Tony Ortiz testified that, during his
involvement with Garcia Abrego’s organization, he shipped between
$60 and 70 million in drug proceeds from New York and Houston
back to Matamoros. Horace Vega testified that he moved $7.5
million for the organization. Clearly, the jury had ample basis
from which to conclude that Garcia Abrego derived substantial
income from trafficking narcotics.
2. Organization, Management, or Supervision
of Five or More Individuals
Garcia Abrego conclusorily argues that insufficient evidence
existed for the jury to conclude beyond a reasonable doubt that
he acted as an organizer, supervisor, or manager of five or more
individuals in his narcotics trafficking activities. The
testimony of Garcia Abrego’s coconspirators summarized in Part
III.D.1, supra, constitutes sufficient evidence for the jury to
conclude that Garcia Abrego acted in such a capacity with far
more than five people. The government adduced a great deal of
evidence in the form of testimony from coconspirators indicating
that Garcia Abrego was the leader of a very large narcotics
trafficking enterprise with a pyramid-like hierarchy. The
testimony of coconspirators provided a basis for the jury to
conclude (1) that Luis Medrano and Oscar Malherbe worked directly
for Garcia Abrego and that he delegated to them substantial
managerial authority; (2) that Medrano and Malherbe in turn
47
delegated responsibility for smuggling drugs and their proceeds
to individuals such as Jaime Rivas, Tony Ortiz, and Carlos
Rodriguez; and (3) that these individuals in turn recruited
numerous other individuals to actually package, load, and ship
narcotics and their proceeds. The fact that Garcia Abrego did
not directly control the actions of many of these individuals is
irrelevant; that their actions were directly supervised or
managed by individuals to whom Garcia Abrego delegated authority
indicates that Garcia Abrego organized, supervised, or managed
them for purposes of § 848. See United States v. Tolliver, 61
F.3d 1189, 1216 (5th Cir. 1995) (holding that the defendant
possessed managerial authority over individuals for purposes of
the CCE statute because they worked for one of the defendant’s
subordinates), vacated on other grounds, Sterling v. United
States,
516 U.S. 1105 (1996), and vacated on other grounds, Moore
v. United States,
117 S. Ct. 40 (1996); United States v.
Hinojosa,
958 F.2d 624, 630 (5th Cir. 1992) (“‘[A] defendant may
not insulate himself from CCE liability by carefully pyramiding
authority so as to maintain fewer than five direct
subordinates.’” (quoting United States v. Ricks,
882 F.2d 885,
891 (4th Cir. 1989) (brackets in original)).
Apparently recognizing the futility of simply arguing that
the jury could not rationally conclude beyond a reasonable doubt
that he organized, managed, or supervised five or more
individuals in his drug trafficking enterprise, Garcia Abrego
principally argues that his conviction for conducting a CCE must
48
be set aside because the jury could have concluded that he
supervised individuals who as a matter of law could not
constitute his supervisees (e.g., individuals with whom Garcia
Abrego merely had a buyer/seller relationship). In essence,
Garcia Abrego is challenging the district court’s jury
instruction on the CCE offense on the ground that it allowed the
jury to convict him based upon a theory of liability that was not
legally viable. See Griffin v. United States, 502 U.S. 46, 59
(1991) (noting that a conviction is invalid “[w]hen . . . jurors
have been left the option of relying upon a legally inadequate
theory . . . [because] there is no reason to believe that their
own intelligence and expertise will save them from that error”).
Because Garcia Abrego did not object to the CCE instruction on
these grounds at the district court level,10 we review his claim
for plain error. See FED. R. CRIM. PROC. 52(b); United States v.
Jones,
132 F.3d 232, 243 (5th Cir. 1998).
Under the plain error standard, we may reverse only if “(1)
there was error (2) that was clear and obvious and (3) that
affected [Garcia Abrego’s] substantial rights.” United States v.
10
Garcia Abrego proffered a proposed supplemental
instruction on CCE stating the following:
The act of supplying cocaine, or “fronting”
cocaine to a customer does not constitute without more,
a basis for determining that the supplier organized,
managed or supervised either his buyers or his buyers
[sic] customers.
However, during formal objections to the district court’s jury
charge, Garcia Abrego withdrew this proposed instruction “because
the Court [was] giving [it] in other ways, shape or form.”
49
Dupre, 117 F.3d 810, 817 (5th Cir. 1997), cert. denied, 118 S.
Ct. 857 (1998); see also United States v. Olano,
507 U.S. 725,
731-36 (1993). “Normally, although perhaps not in every case,
the defendant must make a specific showing of prejudice to
satisfy the ‘affecting substantial rights’ prong” of the plain
error inquiry.
Olano, 507 U.S. at 735. Even when these criteria
are satisfied, we should exercise our discretion to reverse only
if the error “seriously affects the fairness, integrity or public
reputation of judicial proceedings.”
Id. at 732 (internal
quotation marks and brackets omitted); see also
Dupre, 117 F.3d
at 817.
The jury instruction regarding the organizer/supervisor/
manager element of the CCE offense tracked the language of the
Fifth Circuit Pattern Jury Charge, which provides as follows:
The term “organizer, supervisor, or manager” means
that the defendant was more than a fellow worker and
that the defendant either organized or directed the
activities of five or more other persons, whether or
not the defendant was the only organizer or supervisor.
COMMITTEE ON PATTERN JURY INSTRUCTIONS, DISTRICT JUDGES ASS’N FIFTH CIR.,
PATTERN JURY INSTRUCTIONS (CRIMINAL CASES) 239 (1997).
Assuming, merely for the sake of argument, that a juror
strictly complying with this instruction--as we assume that the
jurors in this case did, see United States v. Jimenez, 77 F.3d
95, 99 (5th Cir. 1996)--could have, as a theoretical matter,
found Garcia Abrego guilty of conducting a CCE on the basis of
his association with persons who could not have constituted his
50
supervisees as a matter of law,11 we are unconvinced that such
error rises to the level of plain error. As noted above, the
government adduced a great deal of evidence at trial regarding a
large number of individuals over whom the jury could reasonably
conclude that Garcia Abrego exerted direct or indirect managerial
authority. Furthermore, Garcia Abrego does not contend that,
11
We acknowledge that a number of circuits have held that
the statutory language, “other persons with respect to whom such
person occupies a position of organizer, a supervisory position,
or any other position of management” indicates that the term
“organizer” as used in § 848 implies a position carrying some
degree of managerial authority rather than a position
characterized by mere coordination of various players. See,
e.g., United States v. Lindsey, 123 F.3d 978, 987-88 (7th Cir.
1997); United States v. Williams-Davis,
90 F.3d 490, 508-09 (D.C.
Cir. 1996), cert. denied,
117 S. Ct. 986 (1997), and cert. denied
sub nom.,
117 S. Ct. 988 (1997); United States v. Witek,
61 F.3d
819, 822-24 (11th Cir. 1995); United States v. Delgado,
4 F.3d
780, 785-86 (9th Cir. 1993). One court indicated that a CCE
instruction similar to the one at issue here was erroneous
because it failed to highlight the requirement of managerial
authority. See
Lindsey, 123 F.3d at 985-86.
We have no occasion here to determine whether an individual
must exercise managerial authority over another individual in
order to be considered an organizer as to that individual for
purposes of § 848 or whether the district court’s instruction was
erroneous because of its failure to elucidate such a managerial
authority requirement, should it exist, because our review in
this case is limited to a review for plain error. As noted
infra, (1) the government presented a great deal of evidence
indicating that Garcia Abrego exercised managerial authority,
both direct and indirect, over a large number of individuals and
(2) Garcia Abrego does not contend that, during argument, the
government urged the jury to convict Garcia Abrego of conducting
a CCE based upon his association with individuals over whom he
did not exert direct or indirect managerial authority. We are
satisfied that any error in the district court’s instruction was
not plain error because Garcia Abrego has demonstrated no
prejudicial impact, and thus no detrimental effect on his
substantial rights. See United States v. Rogers, 126 F.3d 655,
659 (5th Cir. 1997). We therefore express no opinion as to
whether the district court’s CCE instruction was actually
erroneous.
51
during argument, the government urged the jury to find Garcia
Abrego guilty of conducting a CCE on the basis of his association
with individuals who, as a matter of law, could not have
constituted his supervisees. Rather, he merely claims that a
handful of the government’s witnesses could not have constituted
his supervisees.12 We find it highly improbable that, in finding
Garcia Abrego guilty of conducting a CCE, the jury rested its
verdict upon Garcia Abrego’s association with such individuals
rather than upon his association with the numerous individuals
whom the jury could have correctly concluded were his
supervisees. Garcia Abrego has thus failed to demonstrate that
any error on the part of the district court in connection with
its jury instructions on the CCE offense prejudiced him and
thereby affected his substantial rights. Therefore, we hold that
the district court did not plainly err, if it erred at all, in
its instruction to the jury regarding the CCE offense. See
United States v. Lindsey, 123 F.3d 978, 986 (7th Cir. 1997)
(holding that the district court did not plainly err in giving
the jury an instruction regarding CCE that could have allowed the
jury to convict the defendant on the basis of his association
12
We find Garcia Abrego’s assertions in this regard
somewhat dubious themselves. For example, Garcia Abrego claims
that William Hoffman could not have constituted his supervisee
because Hoffman described himself as a freelance courier and
stated that he worked for a number of different individuals.
However, Hoffman testified that he took orders from Oscar
Malherbe and Luis Medrano. This testimony indicates that Garcia
Abrego exercised indirect managerial authority over him. See
Tolliver, 61 F.3d at 1216. Obviously, § 848 does not require
that an individual work exclusively for the defendant in order to
be considered the defendant’s supervisee.
52
with individuals who could not have been his supervisees as a
matter of law because there was “adequate evidence of [the
defendant’s] supervision of a sufficient number of persons whom
he clearly ‘managed’”).
H. Impact of the Ex Post Facto Clause on the
Money Laundering Conspiracy Conviction
Garcia Abrego contends that all of the acts that formed the
basis of his conviction for conspiracy to launder money occurred
before October 28, 1992, the effective date of 18 U.S.C.
§ 1956(h), which raised the maximum penalty for such a conspiracy
to the same level as the underlying substantive offense. See 18
U.S.C. § 1956(h). He also argues that, even if only one of the
acts comprising the offense occurred before § 1956(h)’s effective
date, the Ex Post Facto Clause precludes applying the statute’s
harsher penalty provisions to the offense.
As an initial matter, we reject Garcia Abrego’s argument
that his conviction under § 1956(h) violated the Ex Post Facto
Clause if any of the conduct in furtherance of the conspiracy
occurred before the statute’s effective date. Conspiracy is a
continuing offense. See Bermea, 30 F.3d at 1577. “‘[W]here a
crime is still being carried on and continued after the date when
the act becomes effective,’ a statute imposing a greater penalty
for conspiracy does not violate the constitutional prohibition of
ex post facto laws.” United States v. Todd,
735 F.2d 146, 150
(5th Cir. 1984) (quoting Huff v. United States,
192 F.2d 911,
914-15 (5th Cir. 1951)); see also United States v. Harris,
79
F.3d 223, 229 (2d Cir.), cert. denied,
117 S. Ct. 142 (1996);
53
Bermea, 30 F.3d at 1577; United States v. Garfinkel,
29 F.3d
1253, 1259 (8th Cir. 1994); United States v. Jackson,
845 F.2d
1262, 1265 (5th Cir. 1988).
In circumstances in which many acts in a continuing offense
occurred before the effective date of the statute criminalizing
the continuing offense, the trial court must inform the jury of
the effective date of the statute and instruct the jury that, in
order to convict the defendant of the offense, it must find that
the offense continued after the effective date of the statute.
See Todd, 735 F.2d at 150. The district court gave such an
instruction in this case, and the government presented ample
evidence that the conspiracy to launder money occurred after the
effective date of § 1956(h).
Among the post-October 1992 evidence supporting Garcia
Abrego’s conviction of conspiracy to launder money is the
testimony of Carlos Resendez that he participated in a large
cocaine transaction in 1993 and turned the proceeds over to
Garcia Abrego in Monterey, Mexico. Additionally, Resendez
testified that he picked up money in the United States for Garcia
Abrego in 1993. Resendez also testified that he engaged in a
cocaine transaction in 1994 and that he delivered the money
pursuant to Garcia Abrego’s instructions. Furthermore, Tony
Ortiz testified that, in November 1992, he delivered
approximately $40,000 to Medrano for use in bribing a Mexican
official. Based upon this evidence, the jury could reasonably
conclude that the money laundering conspiracy continued after the
54
effective date of § 1956(h). Therefore, Garcia Abrego’s
conviction for violation of § 1956(h) did not violate the Ex Post
Facto Clause.
I. Admissibility of Garcia Abrego’s Custodial Statement
Garcia Abrego challenges the admissibility of the statement
that he made to U.S. law enforcement officials after he was
transferred to U.S. custody by Mexican authorities. Before
addressing Garcia Abrego’s claims regarding his custodial
statement, a synopsis of the facts surrounding that statement is
necessary.
1. Factual Background
Mexican law enforcement officials arrested Garcia Abrego in
Monterey, Mexico on the night of January 14, 1996. Mexican
officials flew Garcia Abrego to Mexico City that night, and DEA
Agent Lawrence Hensley accompanied them on the flight. During
the flight, Garcia Abrego drank some tequila. Without giving
Garcia Abrego Miranda13 warnings, agent Hensley asked Garcia
Abrego questions about his citizenship and the seizure of cocaine
and money. The government contends that Garcia Abrego made no
specific admissions of wrongdoing, and Garcia Abrego does not
specify the content of his statement.
Garcia Abrego stayed the night in Mexico City in the custody
of Mexican officials. The next morning, he received injections
of a number of blood pressure medications. That afternoon,
Mexican officials took Garcia Abrego to the airport in Mexico
13
Miranda v. Arizona, 384 U.S. 436 (1966).
55
City. Garcia Abrego requested an attorney or to be taken before
a judge.14. We note for the sake of clarity that the term “Fifth
Amendment right to counsel” is something of a misnomer to the
extent that it indicates that the Fifth Amendment itself creates
a right to counsel. The rights created by Miranda, including the
right to have counsel present during custodial interrogation,
“are ‘not themselves rights protected by the Constitution but
[are] instead measures to insure that the right against
compulsory self-incrimination [is] protected.’” Duckworth v.
Eagan, 492 U.S. 195, 203 (1989) (quoting Michigan v. Tucker,
417
U.S. 433, 444 (1974)) (alterations in original); United States v.
Smith,
7 F.3d 1164, 1170 (5th Cir. 1993). However, because of
the pervasiveness of the term’s use in the cases of the Supreme
Court and this circuit interpreting the right to counsel created
by Miranda, we use it here.15 Mexican officials complied with
14
In a post-oral argument letter brief that, pursuant to
court instructions, was to address only the adequacy of record
support for arguments that had already been made, Garcia Abrego
argues for the first time that his request for a lawyer while in
the custody of Mexican authorities constituted an invocation of
his Fifth Amendment right to counsel. He therefore contends that
his later custodial statement at the FBI office was presumptively
involuntary because he was not provided access to a lawyer prior
to the statement. See Edwards v. Arizona, 451 U.S. 477, 484-85
(1981) (holding that, once the accused asserts this Fifth
Amendment right to counsel
and thereby “expresse[s] his desire to deal with the police only
through counsel, [he] is not subject to further interrogation by
the authorities until counsel has been made available to him,
unless the accused himself initiates further communication,
exchanges, or conversations with the police”).
“[T]his court has repeatedly held . . . [that] we will not
review arguments raised for the first time in a reply brief.”
NLRB v. Cal-Maine Farms, Inc., 998 F.2d 1336, 1342 (5th Cir.
56
neither request. While detained at the airport, Garcia Abrego
received two ten-milligram injections of Valium. He was then
placed on a Mexican airplane occupied by only Mexican officials
and flown to Houston Intercontinental Airport.
Shortly after arriving in Houston, Garcia Abrego was
released into United States custody and was taken to the Houston
FBI office. Upon arrival there, he complained of shoulder and
back pains that he alleged resulted from Mexican officials
forcibly pushing him to the ground and restraining him. Dr. Gary
M. Coleman examined Garcia Abrego, and concluded that he
“appeared to be alert[,] . . . was able to converse and answer
his questions appropriately[,] . . . did not appear to be
somnolent or sleepy, . . . [and did not appear] . . . to be
1993). We will not allow Garcia Abrego to do in a limited post-
oral argument submission that which he could not do in a reply
brief. We therefore decline to resolve Garcia Abrego’s Edwards
claim. However, we note that Garcia Abrego does not claim that,
at the time that he made his request for counsel, he was being
subjected to custodial interrogation. It is highly questionable
whether Garcia Abrego could have invoked his Fifth Amendment
right to counsel at a point in time prior to custodial
interrogation, particularly at a point when he was not even in
the custody of U.S. officials. As the Supreme Court observed in
McNeil v. Wisconsin, 501 U.S. 171 (1991),
We have in fact never held that a person can invoke his
Miranda rights anticipatorily, in a context other than
“custodial interrogation[.]” . . . Most rights must
be asserted when the government seeks to take the
action they protect against. The fact that we have
allowed the Miranda right to counsel, once asserted, to
be effective with respect to future custodial
interrogation does not necessarily mean that we will
allow it to be asserted initially outside the context
of custodial interrogation, with similar future effect.
Id. at 182 n.3 (citations omitted); see also Goodwin v. Johnson,
132 F.3d 162, 180 n.14 (5th Cir. 1997).
57
suffering from an excessive amount of any certain medication at
the time.” Additionally, the law enforcement officials who
interviewed Garcia Abrego testified that he showed no signs of
impairment at the time of the interview.
Thereafter, U.S. law enforcement officials read Garcia
Abrego his Miranda rights in Spanish, and he signed a form
acknowledging that he understood his rights. United States law
enforcement officials then interviewed him. Agent Hensley
testified that Garcia Abrego made a number of denials of
particular episodes of criminal activity that were identical to
statements that he made to Hensley during the flight from
Monterrey to Mexico City.
At the suppression hearing, Dr. Coleman testified that an
overdose of Valium would be evidenced by signs of somnolence and
sleepiness. He also testified that users of Valium develop a
tolerance over time and that a given dose of Valium may have
varying effects on a particular individual based on a number of
other factors, including the level of anxiety the individual is
experiencing at the time of administration, his physical size,
and the route of administration. Garcia Abrego introduced expert
testimony from Dr. Ernest D. Lykissa that a first-time user who
received a twenty-milligram dose of Valium would be significantly
impaired by the drug and that a person who took all of the
medication administered to Garcia Abrego by Mexican doctors would
be “literally incapacitated.” However, Dr. Lykissa clarified
that a habitual user could withstand a much higher dosage of
58
Valium than a first-time user and that his conclusions regarding
the combined effects of the drugs administered to Garcia Abrego
were based on an assumption that he received all of the drugs at
one time. Dr. Lykissa also testified that some of the
hypertension medication that Garcia Abrego received would block
his kidneys’ ability to eliminate Valium for a six-hour period.
Another expert, Dr. Gloria Keraga, testified that Valium taken in
conjunction with one of the medications given to Garcia Abrego
could increase suggestibility. Dr. Keraga admitted that these
effects might be different for a chronic user of Valium. Agent
Hensley testified at the suppression hearing without objection
that Garcia Abrego had used Valium on a daily basis for a number
of years prior to his arrest.16
2. Admissibility
Garcia Abrego argues that his custodial statement at the FBI
office was the fruit of his initial un-Mirandized statements to
Agent Hensley shortly after his arrest and was therefore
inadmissible at trial. He also argues that his custodial
statement at the FBI office was rendered independently
involuntary by the fact that he was under the influence of drugs
that made him susceptible to law enforcement officials’
solicitous interrogation. We reject both of these contentions.
16
Additionally, at trial, Francisco Perez testified that
he purchased Valium for Garcia Abrego on a number of occasions
and that Garcia Abrego used Valium on a daily basis from at least
1980 until 1993. Carlos Resendez testified that he also
purchased Valium for Garcia Abrego on occasion and that Garcia
Abrego was accustomed to using Valium.
59
a. Effect of prior un-Mirandized statements
Garcia Abrego’s custodial statement at the FBI office was
not rendered involuntary by the fact that he previously made un-
Mirandized statements to Agent Hensley. Miranda merely created a
prophylactic rule that establishes an irrebuttable presumption of
involuntariness with respect to statements made during custodial
interrogation that are not preceded by Miranda warnings. See
McNeil v. Wisconsin, 501 U.S. 171, 176 (1991). Mirandized
statements made subsequent to an un-Mirandized statement are not
the illegal fruit of the prior statement unless the prior
statement was actually involuntary as opposed to merely presumed
involuntary on the basis that it was given without the benefit of
Miranda warnings. See Oregon v. Elstad,
470 U.S. 298, 310-11
(1985) (holding that, absent evidence that an unwarned statement
was actually the product of police coercion, “a careful and
thorough administration of Miranda warnings serves to cure the
condition that rendered the unwarned statement inadmissible”).
The record provides no indication that Garcia Abrego’s statements
to Agent Hensley were involuntary. Therefore, these statements
did not taint Garcia Abrego’s later statement at the FBI office.
b. Actual voluntariness
Garcia Abrego next argues that the drugs that Mexican
officials administered to him, coupled with the solicitousness of
U.S. law enforcement officials, rendered his custodial statement
involuntary. We disagree. When a defendant challenges the
voluntariness of a confession, the government must prove its
60
voluntariness by a preponderance of the evidence in order for the
confession to be admissible as substantive evidence at the
defendant’s criminal trial. See Self v. Collins, 973 F.2d 1198,
1205 (5th Cir. 1992). While the ultimate determination of
voluntariness is a question of law reviewed de novo, this court
must accept the factual conclusions underlying the district
court’s determination of voluntariness unless they are clearly
erroneous. See United States v. Restrepo,
994 F.2d 173, 183 (5th
Cir. 1993).
“A confession is voluntary if, under the totality of the
circumstances, the statement is the product of the accused’s free
and rational choice.” United States v. Broussard, 80 F.3d 1025,
1033 (5th Cir.), cert. denied sub nom.,
117 S. Ct. 264 (1996).
“[C]oercive police activity is a necessary predicate to the
finding that a confession is not ‘voluntary’ within the meaning
of the Due Process Clause of the Fourteenth Amendment.” Colorado
v. Connelly,
479 U.S. 157, 167 (1986). However, “[a] defendant’s
mental condition still properly figures into the voluntariness
calculus. Police exploitation of the mental condition of a
suspect, using ‘subtle forms of psychological persuasion,’ could
render a confession involuntary.” United States v. Raymer,
876
F.2d 383, 386-87 (5th Cir. 1989) (quoting
Connelly, 479 U.S. at
164).
The record contains ample evidence from which the district
court could conclude that the drugs that Mexican authorities
administered to Garcia Abrego did not impair his mental capacity.
61
Dr. Coleman’s testimony that Garcia Abrego did not appear
impaired and evinced none of the symptoms of a Valium overdose,
together with the testimony of the officers who interviewed
Garcia Abrego that he appeared in no way impaired, provided an
adequate basis for the district court’s conclusion that Garcia
Abrego’s mental capacity was not impaired as a result of the
drugs that he had been administered earlier in the day.
Additionally, Agent Hensley’s testimony that, during the
interview, Garcia Abrego made many of the same denials of
particular episodes of criminal conduct that he had previously
made to Hensley during the trip from Monterrey to Mexico when no
Valium was in his system indicates that the Valium injections had
not diminished Garcia Abrego’s mental capacity. The district
court was presented with conflicting expert testimony regarding
the probable effect of Valium and the other drugs administered to
Garcia Abrego, and the court was free to make credibility
assessments regarding the different expert witnesses. See United
States v. Ponce, 8 F.3d 989, 998 (5th Cir. 1993). Moreover, the
district court was free to accord great weight to the testimony
of those individuals who actually observed Garcia Abrego prior to
his interview with law enforcement authorities. Thus, we cannot
say that the district court’s determination that the medication
that Garcia Abrego received did not render him mentally impaired
62
at the time of his interview with law enforcement officials was
clearly erroneous.17
Moreover, Garcia Abrego has demonstrated no overreaching by
law enforcement officials, which, as noted earlier, is a
prerequisite to a determination that a confession is involuntary
for purposes of the Fourteenth Amendment Due Process Clause. The
mere fact that law enforcement agents were solicitous and
attempted to create a favorable climate for confession did not
render Garcia Abrego’s statement involuntary. See United States
v. Barlow, 41 F.3d 935, 944 n.26 (5th Cir. 1994).18 Garcia
Abrego contends that the solicitousness of law enforcement
officials constituted an exploitation of his vulnerable mental
state. However, as indicated above, the district court had an
ample basis for concluding that Garcia Abrego did not possess a
vulnerable mental state capable of exploitation. Therefore, the
district court properly concluded that the government established
by a preponderance of the evidence the voluntariness of Garcia
17
Garcia Abrego also claims that he “was particularly
susceptible to entreaties by U.S. authorities” because he alleges
that he was mistreated by Mexican authorities and feared their
return. The only evidence that the district court heard
indicating mistreatment by Mexican authorities consisted of
testimony and out-of-court statements from Garcia Abrego himself,
and the court was free to make a negative credibility assessment
regarding this evidence. See Ponce, 8 F.3d at 998.
18
Additionally, although we have concluded that the
district court’s factual determination that the drugs
administered to Garcia Abrego had no deleterious effect on his
mental condition was not clearly erroneous, it is worth noting
that the district court found, on the basis of Agent Hensley’s
testimony, that United States law enforcement officials had no
involvement in the administration of drugs to Garcia Abrego.
This factual determination was not clearly erroneous.
63
Abrego’s statement at the FBI office. The statement was thus
admissible as substantive evidence at Garcia Abrego’s trial.
J. Validity of Garcia Abrego’s Waiver
of His Miranda Rights
In an effort to attack the admissibility of his confession
from a slightly different angle, Garcia Abrego contends that he
did not validly waive his Miranda rights prior to his statement
to law enforcement agents at the FBI office. A defendant’s
waiver of his Miranda rights is only effective if the waiver is
knowingly, intelligently, and voluntarily made. See Moran v.
Burbine, 475 U.S. 412, 421 (1986). As with the issue of the
voluntariness of a custodial confession, a district court’s
determination regarding the validity of a defendant’s waiver of
his Miranda rights is a question of law reviewed de novo, but
this court accepts the factual conclusions underlying the
district court’s legal determination unless they are clearly
erroneous. See United States v. Flores,
63 F.3d 1342, 1363 (5th
Cir. 1995). Additionally, as with a challenge to the
voluntariness of a confession, when the defendant challenges the
validity of his waiver of his Miranda rights, the government
bears the burden of proving the validity of the waiver by a
preponderance of the evidence. See United States v. Hurtado,
905
F.2d 74, 76 (5th Cir. 1990).
Garcia Abrego does not dispute that the law enforcement
officers who interviewed him read him his Miranda rights in
Spanish and that he stated to them that he understood each of
these rights. However, he argues that his impairment from the
64
medication that he had received from Mexican doctors, coupled
with his lack of education and experience with the U.S. judicial
system, precluded a knowing and voluntary waiver. In support of
his contention that the medication that he received precluded a
voluntary waiver, Garcia Abrego points to essentially the same
expert testimony to which he points in support of his contention
that his custodial statement was involuntary.19 For the same
reasons outlined in Part III.I, supra, we conclude that the
district court had an adequate basis for concluding that the
medication that Garcia Abrego received did not render him
mentally impaired at the time law enforcement authorities read
him his Miranda rights.
In further support of his contention that he could not
knowingly, intelligently, and voluntarily waive his Miranda
rights, Garcia Abrego points to the fact that he has only the
equivalent of an eighth grade education. He also relies on the
district court’s statement in connection with a hearing regarding
disqualification of counsel on the basis of conflicts of interest
that Garcia Abrego did not understand the conflicts issue and
“also [did] not have a rudimentary understanding of his
constitutional rights and of the judicial process that now
affects his future.” At the hearing that formed the basis of the
above statement by the district court, Garcia Abrego disavowed
any prior experience with the United States judicial system. At
19
In addition, he points to Dr. Keraga’s testimony that
she “[did not] imagine” that he would have been able to
understand his Miranda rights.
65
a later hearing, however, Garcia Abrego admitted that he was
previously charged with a criminal offense in the Southern
District of Texas, was represented by counsel, and pleaded
guilty. This experience provided him with some exposure to the
U.S. judicial system. Furthermore, Garcia Abrego claimed that
his apparent lack of understanding at the previous hearing
resulted from the fact that he could not hear properly and felt
poorly, and the court concluded that Garcia Abrego had firmly
grasped the conflicts issue. The court further concluded, based
upon its interactions with Garcia Abrego as well as the testimony
of law enforcement officials regarding the answers that Garcia
Abrego provided in response to their questioning, that, at the
time he waived his Miranda rights, Garcia Abrego “was of keen
mind, intelligent, able to understand what was transpiring and
was under no type of coercion or government oppression.” As
demonstrated above, the record contains ample evidence to support
these factual conclusions, and the district court could therefore
properly conclude that the government carried its burden of
proving by a preponderance of the evidence that Garcia Abrego
knowingly, intelligently, and voluntarily waived his Miranda
rights.
K. Admissibility of Evidence Regarding the
Effects of Habitual Valium Use
Garcia Abrego contends that the district court erred in
admitting expert testimony at trial from Dr. Coleman20 that
20
In his brief, Garcia Abrego incorrectly refers to Dr.
Coleman as Dr. Lykissa, one of his own experts.
66
habitual use of Valium would diminish the effect of the drug.
Like other evidentiary rulings, we review a district court’s
decision to admit expert testimony for an abuse of discretion.
See United States v. Griffith, 118 F.3d 318, 322-23 (5th Cir.
1997).
Garcia Abrego called Dr. Coleman as a witness. During
direct examination, counsel for Garcia Abrego questioned Dr.
Coleman regarding his medical examination of Garcia Abrego upon
his arrival in the United States and about the effects of a
number of the medications that Mexican authorities had
administered to him. Counsel for Garcia Abrego and Dr. Coleman
engaged in the following exchange regarding Dr. Coleman’s
knowledge of Valium dependency:
Q: Now, do you know anything at all, sir, about
Valium habituation or Valium dependency? Have you
ever studied the subject in your particular area
of expertise?
A: In medical school we did study the effect of
Valium and other benzodiazepines.
Q: But you wouldn’t hold out to be able to render an
expert opinion on that, I take it.
A: No, not -- it really depends. As a physician who
uses these medications on a daily basis, I have to
be knowledgeable about those medications.
Q: But so far as knowing anything about habituation
or dependency or holding out to be an expert,
would you or not hold yourself out to be an expert
in that area?
. . .
A: I don’t pretend to be an expert, but I do know
something about Valium situations, dependencies.
Being a physician, I have to.
67
Q: All right. I understand. I know something about
it, being a lawyer. I have to. But neither of us
are experts.
A: I am not certain what the -- qualifications are
needed to be an expert on this medication.
Q: Would you not represent yourself here in the court
as being an expert?
A: On that particular medication, I don’t pretend to
be an expert. But as a physician who prescribes
the medication, I certainly know quite a bit about
it.
On cross-examination, the government asked Dr. Coleman a
number of questions regarding his medical education, training,
and experience. Dr. Coleman testified that he graduated from
medical school and subsequently received six years of training in
internal medicine. He stated that he had pharmacological
training in drugs that cause dependency and that he prescribed
drugs such as Valium to patients on a daily basis. The
government then asked Dr. Coleman what effect a twenty-milligram
dose of Valium would have on a person who had used the drug on a
daily basis for eight to ten years. Garcia Abrego objected on
the ground that Dr. Coleman “ha[d] testified that he is not
qualified as an expert in that area of practice.” The district
court overruled the objection on the ground that Dr. Coleman
“ha[d] practical experience . . . sufficient to give his
opinion.” Dr. Coleman then testified that “[s]omeone who has
taken Valium for a long period of time, depending on the doses
which he has been taking, . . . may have some resistance to that
medication” and that such a person “oftentimes can take dosages
68
which are quite high and not manifest the typical symptoms of
sedation of someone who does not use this medication.”
Garcia Abrego contends that the district court erred in
allowing Dr. Coleman to testify regarding the effects of habitual
Valium use because he admitted during direct examination that he
was not an expert in the area of Valium dependency. However, Dr.
Coleman’s statements to this effect establish nothing more than
that Dr. Coleman may have been unfamiliar with the meaning of
“expert” as a legal term of art. Given Dr. Coleman’s testimony
regarding his medical education and substantial experience in
prescribing Valium, we cannot say that the district court abused
its discretion in concluding that Dr. Coleman possessed the
requisite “knowledge, skill, experience, training, or education”
to testify competently regarding the effects of habitual Valium
use. See FED. R. EVID. 702.
Garcia Abrego also contends that the government’s
hypothetical question regarding the effects of a twenty-milligram
dose of Valium on a person who has used the drug for many years
“is not the type of hearsay reasonably relied upon by experts in
[Dr. Coleman’s field]” and that Dr. Coleman’s answer to the
question was therefore inadmissible. This argument borders on
the frivolous. The hypothetical question itself was obviously
not the basis of Dr. Coleman’s opinion. His experience with
Valium prescription and patient observation, along with his
medical training, formed the basis of his opinion. An expert may
testify in response to a hypothetical question containing facts
69
that have evidentiary support in the trial record. See, e.g.,
United States v. Levine, 80 F.3d 129, 135 (5th Cir.), cert.
denied,
117 S. Ct. 83 (1996); 2 JOHN HENRY WIGMORE, EVIDENCE §§ 674,
679, 680 (Chadbourn rev. 1979). Garcia Abrego does not dispute
that the government presented testimony from two of his
coconspirators--Francisco Perez and Carlos Resendez--indicating
that Garcia Abrego had used Valium habitually for many years.
See note
15, supra. Thus, the district court properly allowed
Dr. Coleman to answer the hypothetical question posed by the
government.
L. Constitutionality of the Criminal Forfeiture
Garcia Abrego contends that the district court violated the
Double Jeopardy Clause because it based its order of criminal
forfeiture on all of the counts for which the jury returned a
guilty verdict even though the district court dismissed two of
those counts--conspiracy to possess marijuana and cocaine with
intent to distribute and conspiracy to import cocaine and
marijuana--as lesser-included offenses of conducting a CCE.
Garcia Abrego relies on the Supreme Court’s recent holding in
Rutledge v. United States, 517 U.S. 292 (1996), that conspiracy
to distribute controlled substances is a lesser-included offense
of the CCE offense. See
id. at 307. He argues that, because he
was punished for conducting a CCE, he cannot also be punished for
engaging in drug conspiracies. Because the amount that the
district court ordered him to forfeit was based upon his
engagement in a CCE as well as his engagement in a conspiracy to
70
possess narcotics with intent to distribute and a conspiracy to
import narcotics, he argues that the forfeiture violates the
Double Jeopardy Clause. Garcia Abrego’s argument lacks merit.
In addition to protecting against a second prosecution for
the same offense after acquittal or conviction, the Double
Jeopardy Clause “protects against multiple punishments for the
same offense.” Brown v. Ohio, 432 U.S. 161, 165 (1977). The
prohibition against multiple punishments for the same offense “is
designed to ensure that the sentencing discretion of courts is
confined to the limits established by the legislature.” Ohio v.
Johnson,
467 U.S. 493, 499 (1984); see also United States v.
Halper,
490 U.S. 435, 450 (1989). In this case, the district
court ordered Garcia Abrego to forfeit an amount within the
limits established by Congress.
Section 853(a) of Title 21 of the United States Code, which
defines property subject to criminal forfeiture in connection
with drug crimes, provides as follows:
Any person convicted of a violation of this
subchapter or subchapter II of this chapter [which
include the drug conspiracies with which Garcia Abrego
was charged] punishable by imprisonment for more than
one year shall forfeit to the United States,
irrespective of any provision of State law--
(1) any property constituting, or derived from, any
proceeds the person obtained, directly or indirectly,
as the result of such violation;
(2) any of the person’s property used, or intended to
be used, in any manner or part, to commit, or to
facilitate the commission of, such violation; and
(3) in the case of a person convicted of engaging in
a continuing criminal enterprise in violation of
section 848 of this title, the person shall forfeit, in
addition to any property described in paragraph (1) or
(2), any of his interest in, claims against, and
71
property or contractual rights affording a source of
control over, the continuing criminal enterprise.
21 U.S.C. § 853(a) (emphasis added). The above language
indicates that a defendant convicted of conducting a CCE must
forfeit any property or contract rights affording control over
the criminal enterprise in addition to the items described in
paragraphs (1) and (2) of the provision, which a defendant
convicted of conspiracy to possess narcotics with intent to
distribute or conspiracy to import narcotics would be forced to
forfeit. See id. To the extent that Garcia Abrego’s
participation in drug conspiracies constituted lesser-included
offenses of his participation in a CCE, the proceeds of the
conspiracies were necessarily proceeds of the CCE. Therefore,
the amount forfeitable as a result of the conspiracies is
necessarily subsumed in the amount forfeitable as a result of the
CCE. The statute would have required the district court to order
Abrego to forfeit the same amount regardless of whether the court
considered the conspiracy counts. Because the amount that the
district court ordered Garcia Abrego to forfeit is within the
limits set by Congress, the criminal forfeiture comports with the
Double Jeopardy Clause.
M. Admission of Evidence of Murders
Garcia Abrego contends that the district court erred in
admitting evidence that he ordered a number of murders. As noted
earlier, we review a district court’s evidentiary rulings for an
abuse of discretion. See United States v. Torres, 114 F.3d 520,
525-26 (5th Cir.), cert. denied sub nom.,
118 S. Ct. 316 (1997),
72
and cert. denied, 118 S. Ct. 316 (1997), and cert. denied sub
nom.,
118 S. Ct. 316 (1997).
Garcia Abrego first contends that evidence that he ordered a
number of murders was inadmissible under Rule 404(b) of the
Federal Rules of Evidence21 because it constituted evidence of
other crimes, wrongs, or acts offered to prove his bad character
and action in conformity therewith. He further complains that he
did not receive the notice required by Rule 404(b) when the
prosecution intends to offer evidence of prior crimes, wrongs, or
other acts for purposes other than proving action in conformity
with bad character.
Admission of the evidence did not violate Rule 404(b). In
order “to avoid the strictures of Rule 404(b) [regarding the
admission of character evidence], all the government need do is
suggest a logical hypothesis of the relevance of the evidence for
purposes other than to demonstrate [the defendant’s] propensity
to act in a particular manner.” United States v. Krout, 66 F.3d
21
Rule 404(b) provides as follows:
Other crimes, wrongs, or acts. Evidence of other
crimes, wrongs, or acts is not admissible to prove the
character of a person in order to show action in
conformity therewith. It may, however, be admissible
for other purposes, such as proof of motive,
opportunity, intent, preparation, plan, knowledge,
identity, or absence of mistake or accident, provided
that upon request by the accused, the prosecution in a criminal
case shall provide reasonable notice in advance of trial, or
during trial if the court excuses pretrial notice on good cause
shown, of the general nature of any such evidence it intends to
introduce at trial.
FED. R. EVID. 404(b).
73
1420, 1431 (5th Cir. 1995). Moreover, “evidence of acts
committed pursuant to a conspiracy and offered to prove the
defendant’s membership or participation in the conspiracy are not
extrinsic evidence,” i.e., evidence of “other” acts, for purposes
of Rule 404(b). Id.; see also United States v. Miller, 116 F.3d
641, 682 (2d Cir. 1997), petition for cert. filed, 66 U.S.L.W.
(U.S. Jan. 26, 1998) (No. 97-7630), and petition for cert. filed,
66 U.S.L.W. (U.S. Feb. 26, 1998) (No. 97-8083). Acts
committed in furtherance of the charged conspiracy are themselves
part of the act charged. See
Miller, 116 F.3d at 682. Thus,
evidence of such acts constitutes intrinsic evidence--that is,
direct evidence of the charged conspiracy itself. See
Miller,
116 F.3d at 682;
Krout, 66 F.3d at 1431.
The government suggested a logical hypothesis that all of
the murders about which it elicited testimony were committed in
furtherance of Garcia Abrego’s narcotics trafficking conspiracy.
The testimony regarding the murders supports this hypothesis.
Specifically, Ricardo Garza testified that Garcia Abrego had
Oscar “El Profe” Lopez Olivares kill Casimiro Espinoza in order
to eliminate drug trafficking competition in the Matamoros area.
Francisco Perez testified that Garcia Abrego told him that he had
two Mexican officials killed because they were moving drugs
without Garcia Abrego’s knowledge or permission. Perez also
testified that Garcia Abrego told him that he intended to have
two newspaper reporters killed because they were writing
newspaper articles exposing his drug trafficking activities.
74
Horace Vega testified that Medrano told him that the group wished
to have Lopez Olivares killed because he threatened to expose
high-level members of the group to the U.S. media. All of this
testimony indicates that the killings at issue were in
furtherance of Garcia Abrego’s drug-trafficking enterprise.
Therefore, the evidence of Garcia Abrego’s involvement in the
murders was not inadmissible under Rule 404(b)’s prohibition on
“[e]vidence of other crimes, wrongs, or acts . . . [offered] to
show action in conformity therewith.” FED. R. EVID. 404(b).
Indeed, it was not evidence of “other crimes, wrongs, or acts” at
all. Thus, Rule 404(b) did not require that the government
provide Garcia Abrego with advance notice of its intent to offer
the evidence.
Garcia Abrego also contends that allowing witnesses to
testify regarding his involvement in murders violated Rule 403 of
the Federal Rules of Evidence.22 He argues that the danger of
unfair prejudice created by such testimony substantially
outweighed any probative value it might have because the evidence
was not pertinent to the charged drug and money laundering
offenses. Garcia Abrego argues that the danger of unfair
22
Rule 403 provides as follows:
Although relevant, evidence may be excluded if its
probative value is substantially outweighed by the
danger of unfair prejudice, confusion of the issues, or
misleading the jury, or by considerations of undue
delay, waste of time, or needless presentation of
cumulative evidence.
FED. R. EVID. 403.
75
prejudice was exacerbated by the fact that the government offered
no direct evidence that any killings actually occurred, but
rather relied strictly upon hearsay statements.
Admission of the evidence did not violate Rule 403.
“Testimony presented by the government will invariably be
prejudicial to a criminal defendant. But Rule 403 only excludes
evidence that would be unfairly prejudicial to the defendant.”
United States v. Townsend, 31 F.3d 262, 270 (5th Cir. 1994).
Because Rule 403 operates to exclude relevant evidence,
application of the rule “‘must be cautious and sparing.’” United
States v. Pace,
10 F.3d 1106, 1115-16 (5th Cir. 1993) (quoting
United States v. McRae,
593 F.2d 700, 707 (5th Cir. 1979)). The
acts of violence to which the evidence at issue here related were
integral parts of the conspiracies and the CCE with which Garcia
Abrego was charged. The fact that the evidence offered by the
government consisted only of out-of-court statements accompanied
by no physical evidence of murder merely goes to the weight of
the evidence rather than its admissibility.23 We therefore
conclude that the district court did not abuse its discretion in
admitting testimony regarding Garcia Abrego’s involvement in
murders. See
Miller, 116 F.3d at 682 (holding that the district
23
Garcia Abrego does not contest on appeal the district
court’s determination that Rule 802's general prohibition on the
admission of hearsay evidence did not bar the admission of the
statements on the ground that they all constituted admissions by
a party-opponent. See FED. R. EVID. 801(d)(2) (defining
statements of a party and statements of a party’s coconspirator
made during and in furtherance of the conspiracy as nonhearsay
when such statements are offered against the party).
76
court did not abuse its discretion in admitting evidence of
uncharged murders committed in furtherance of the charged
narcotics conspiracy).
N. Admissibility of Foreign Financial Records
In support of its contention that Garcia Abrego derived
substantial revenue from his drug trafficking activities, the
government offered foreign bank records pertaining to
approximately $30 million that it contended was transferred from
Mexico to the United States, deposited in bank accounts in
McAllen, Texas, and then funneled through the American Express
Company to accounts in Switzerland and the Cayman Islands.
Garcia Abrego levels a number of attacks at the district court’s
admission of these records. Specifically, he argues that
admission of the records violated 18 U.S.C. § 3505, the
Confrontation Clause, and several of the Federal Rules of
Evidence. We address each of these arguments in turn.
1. Section 3505
Garcia Abrego initially challenges the admissibility of the
foreign bank records under 18 U.S.C. § 3505. Section 3505
provides in relevant part as follows:
(a)(1) In a criminal proceeding in a court of the
United States, a foreign record of regularly conducted
activity, or a copy of such record, shall not be
excluded as evidence by the hearsay rule if a foreign
certification24 attests that--
24
Subsection (c) of the statute defines a foreign
certification as “a written declaration made and signed in a
foreign country by the custodian of a foreign record of regularly
conducted activity or another qualified person that, if falsely
made, would subject the maker to criminal penalty under the laws
77
(A) such record was made, at or near the time of
the occurrence of the matters set forth, by (or
from information transmitted by) a person with
knowledge of those matters;
(B) such record was kept in the course of a
regularly conducted business activity;
(C) the business activity made such a record as
a regular practice; and
(D) if such record is not the original, such
record is a duplicate of the original;
unless the source of information or the method or
circumstances of preparation indicate lack of
trustworthiness.
(2) A foreign certification under this section shall
authenticate such record or duplicate.
(b) At the arraignment or as soon after the
arraignment as practicable, a party intending to offer
in evidence under this section a foreign record of
regularly conducted activity shall provide written
notice of that intention to each other party. A motion
opposing admission in evidence of such record shall be
made by the opposing party and determined by the court
before trial. Failure by a party to file such motion
before trial shall constitute a waiver of objection to
such record or duplicate, but the court for cause shown
may grant relief from the waiver.
18 U.S.C. § 3505.
Garcia Abrego contends that the government failed to comply
with the notice requirement contained in § 3505(b) because it did
not provide notice of its intention to introduce the foreign
records until over six months after his indictment25 even though
the government had been in possession of the records in
connection with another prosecution for approximately two
years.26 Garcia Abrego thus argues that the government did not
of that country.” 18 U.S.C. § 3505(c)(2).
25
Garcia Abrego was arraigned on February 6, 1996. The
government gave notice that it intended to introduce the records
on August 15, 1996.
26
Garcia Abrego also complains that the documents were not
accompanied by a proper certification as required by
78
provide notice “as soon after the arraignment as practicable,” as
required by the statute and that the records were therefore
inadmissible under § 3505. Id.
As the district court observed, the government “certainly
[did] not act[] with diligence in giving [the] notice” required
by § 3505(b). However, we conclude that this lack of diligence
did not render the records inadmissible under the statute. The
plain language of § 3505 does not make compliance with the notice
requirement a prerequisite to the admissibility of evidence under
the statute. First, subsection (a) of § 3505, which establishes
the requirements for admissibility under the section, makes no
reference to subsection (b), which establishes the notice
requirement. This would indicate that compliance with the notice
requirement is not a precondition of admissibility. Subsection
(b) also contains a requirement that the party opposing admission
of a foreign record under § 3505 must object before trial or
otherwise waive the objection. This would indicate that the
provisions of subsection (b) are meant to facilitate pretrial
determinations of the admissibility of foreign records under
§ 3505 rather than establish prerequisites to admissibility under
§ 3505(a)(1). He argues without further explanation that the
certifications were improper because they were made in connection
with another criminal case. However, the matters that the
statute requires that the certification address mirror the four
requirements for rendering a normal business record admissible
under the business records exception to the hearsay rule, none of
which are case-specific. Compare 13 U.S.C. § 3505(a)(1) with
FED. R. EVID. 803(6). Garcia Abrego advances no argument as to
why the required contents of the certification would be any
different in this case than in the previous one. We therefore
reject this argument.
79
the statute. The legislative history of § 3505 bears out this
conclusion.
The House Report on the bill that ultimately became § 3505
states that “[t]he purpose of the legislation is to make foreign-
kept business records more readily admissible into evidence in
criminal trials in United States courts.” H.R. REP. NO. 98-907,
at 2 (1984), reprinted in 1984 U.S.C.C.A.N. 3578, 3578. This
general statement of § 3505's purpose indicates that the
procedural requirements of subsection (b) are designed to
facilitate the admission of foreign business records rather than
serve as an impediment to their admissibility. Furthermore, the
House Report goes on to state the following:
Subsection (b) of section 3505 is intended to promote
the resolution before trial of questions concerning the
admissibility of foreign business records. Subsection
(b) requires that the party intending to offer the
foreign business record provide written notification of
that intention to all other parties to the case. Any
objection to the admissibility of the foreign record
must be made in writing and filed with the court before
trial, and the court must decide the motion before
trial. Failure of a party to raise an objection before
trial constitutes a waiver of the objection. The
court, for good cause shown, however, can grant relief
from the waiver.
Id. at 6, reprinted in 1984 U.S.C.C.A.N. 3578, 3582 (emphasis
added). This passage indicates that the primary purpose of
subsection (b) is to force parties opposing the admission of
foreign business records to lodge their objections before trial
so that questions of admissibility may be resolved at an early
stage. A requirement of early notice of a party’s intention to
offer such records is a necessary concomitant to a pretrial
80
determination of their admissibility. Without sufficient
pretrial notice of a party’s intention to offer foreign business
records, it would certainly be unfair to conclude that the party
opposing the admission of such records has waived his or her
objections to the admissibility of the records by failing to
assert them pretrial. However, were we to conclude that a
failure to give timely notice of an intent to offer foreign
records under § 3505 bars admission of the records pursuant to
the statute, we would flout § 3505’s purpose by turning a
requirement intended to facilitate the admission of foreign
business records into a procedural barrier impeding their
admission. The statute’s legislative history indicates that
Congress wished to “promote” pretrial resolution of evidentiary
disputes regarding foreign business records, not to require such
resolution. Id.
Section 3505 “was not intended to add technical roadblocks
to the admission of foreign records, but, rather, to streamline
the admission of such records.” United States v. Strickland,
935
F.2d 822, 831 (7th Cir. 1991). The government provided Garcia
Abrego with notice of its intention to offer the foreign records
twenty-six days before the suppression hearing at which the
district court made the initial determination of their
admissibility and forty-eight days prior to their admission into
evidence at his trial. Garcia Abrego never requested more time
to investigate the reliability or authenticity of the records and
does not now complain that he was in any way prejudiced by the
81
timing of the government’s notice.27 We therefore conclude that
the district court did not abuse its discretion in holding that
the foreign bank records were admissible under § 3505.28
2. Confrontation Clause
Garcia Abrego next argues that admission of the foreign
records violated his rights under the Confrontation Clause
because he was unable to cross examine the custodian of the
records. He argues that, unlike ordinary domestic business
records, foreign records do not occupy a well-rooted exception to
the hearsay rule and lack adequate indicia of reliability to be
admissible without violating the Confrontation Clause. We
disagree.
The admission of the foreign business records does not
violate the Confrontation Clause so long as the records “bear[]
adequate indicia of reliability.” Ohio v. Roberts, 448 U.S. 56,
66 (1980); see also United States v. Ismoila,
100 F.3d 380, 391
27
We express no opinion as to whether a showing of
prejudice resulting from untimely notice of an intent to offer
foreign records could eliminate § 3505 as a potential pathway for
admissibility of foreign business records.
28
Garcia Abrego also argues that the records were
inadmissible because some of them were incomplete. He argues
that this fact calls into question the integrity and validity of
the records, particularly in light of the fact that some of the
missing records were available in connection with the previous
trial but were unavailable in connection with this one. Garcia
Abrego’s claim again lacks merit. He does not argue that the
incompleteness of the records was likely to confuse the jury, nor
that the incompleteness of the records rendered them irrelevant.
The district court could properly conclude that the
incompleteness of any of the records went to their evidentiary
weight rather than their admissibility. Therefore, the district
court did not abuse its discretion in admitting the records on
the ground that they were incomplete.
82
(5th Cir. 1996), cert. denied sub nom., 117 S. Ct. 1712 (1997),
and cert. denied sub. nom,
117 S. Ct. 1858 (1997); Sherman v.
Scott,
62 F.3d 136, 140 (5th Cir. 1995).29 “Evidence is
considered reliable if it falls within a firmly rooted hearsay
exception or is otherwise supported by a showing of
particularized guarantees of trustworthiness.”
Ismoila, 100 F.3d
at 391-92. “[E]vidence possessing ‘particularized guarantees of
trustworthiness’ must be at least as reliable as evidence
admitted under a firmly rooted hearsay exception . . .[and] must
similarly be so trustworthy that adversarial testing would add
little to its reliability.” Idaho v. Wright,
497 U.S. 805, 821
(1990); see also
Sherman, 62 F.3d at 140. We believe that
foreign records admissible under § 3505 satisfy these criteria.
The legislative history of § 3505 indicates that Congress
adopted the statute in part based upon its view that foreign
business records accompanied by the certification required by the
statute possess an “inherent trustworthiness.” H.R. REP. NO. 98-
29
In Roberts, the Supreme Court stated, “when a hearsay
declarant is not present for cross-examination at trial, the
Confrontation Clause normally requires a showing that he is
unavailable. Even then, his statement is admissible only if it
bears adequate ‘indicia of reliability.’” Roberts, 448 U.S. at
66. In White v. Illinois,
502 U.S. 346 (1992), the Court
clarified that “Roberts stands for the proposition that
unavailability analysis is a necessary part of the Confrontation
Clause inquiry only when the challenged out-of-court statements
were made in the course of a judicial proceeding.”
Id. at 354;
see also
Ismoila, 100 F.3d at 391;
Sherman, 62 F.3d at 140.
Because the foreign bank records at issue here do not constitute
“statements . . . made in the course of a judicial proceeding,”
their admissibility does not hinge upon the presence of the
makers of the records to testify at Garcia Abrego’s trial or a
showing of their unavailability.
83
907, at 2 (1984), reprinted in 1984 U.S.C.C.A.N. 3578, 3580.
Furthermore, the House Report discussing § 3505 indicates that
the language in subsection (a) establishing the required contents
of the foreign certification “is derived from Rule 803(6) of the
Federal Rules of Evidence,” which establishes the business
records exception to Rule 802's general exclusion of hearsay, and
should therefore “be interpreted in the same manner as the
comparable language in Rule 803(6) is interpreted.” Id. at 5,
reprinted in 1984 U.S.C.C.A.N. 3578, 3581. “The business records
exception is a firmly rooted hearsay exception.”
Ismoila, 100
F.3d at 392. Thus, to the extent that § 3505 largely mirrors the
business records exception, we are confident that records
admissible under the statute are “at least as reliable as
evidence admitted under a firmly rooted hearsay exception.”
Wright, 497 U.S. at 821. Our conclusion is bolstered by the fact
that the statute requires district courts to exclude records
otherwise satisfying its requirements if “the source of
information or the method or circumstances of preparation
indicate lack of trustworthiness.” 18 U.S.C. § 3505(a)(1).
In concluding that admission of records under § 3505 does
not violate a defendant’s rights under the Confrontation Clause,
we join a number of other circuits that have addressed the issue.
In United States v. Miller, 830 F.2d 1073, 1078 (9th Cir. 1987),
the Ninth Circuit rejected a Confrontation Clause challenge to
the admission of foreign bank records under § 3505. In doing so,
the court expressed the following rationale:
84
Banks depend on keeping accurate records and
although, as we all know, they err occasionally, their
records are among the most common type of business
record routinely used in our courts. The novelty of
the statute is to admit the records without
confrontation by the defendant with the recordkeepers.
No motive is suggested that would lead bank officials
to change, distort, or manipulate the records at issue
here. The recordkeepers have, under criminal penalties
in their own countries, asserted that the records are
records kept in the course of business. Examination of
the recordkeepers by counsel for [the defendant] could
not reasonably be expected to establish anything more
or less than that. If the records were in fact
inaccurate, it was within [the defendant’s] power to
depose the recordkeepers and challenge the records. .
. . As applied in [the defendant’s] case to admit
foreign bank records kept in the course of business,
section 3505 is constitutional.
Id. at 1077-78. Other circuits have reached similar conclusions,
and we now do the same. See United States v. Ross,
33 F.3d 1507,
1517 (11th Cir. 1994) (holding that admission of foreign records
pursuant to § 3505 did not violate the defendant’s rights under
the Confrontation Clause); United States v. Sturman,
951 F.2d
1466, 1490 (6th Cir. 1991) (same). The district court’s
admission of foreign bank records pursuant to § 3505 did not
violate Garcia Abrego’s rights under the Confrontation Clause.
3. Federal Rules of Evidence
Garcia Abrego asserts a number of challenges to the
admissibility of the foreign bank records under the Federal Rules
of Evidence. First, Garcia Abrego challenges the relevance of
the evidence on the ground that nothing linked him to the bank
accounts to which the documents related. However, one of the
accounts described in the record was opened in the name of Maria
85
del Carmen Olivella.30 Garcia Abrego concedes that this is his
wife’s name.31 Furthermore, the other accounts listed Ricardo
Aguirre as a beneficiary. Francisco Perez testified that, while
Garcia Abrego was in hiding in Chicago, he told Perez that he had
instructed Aguirre to move $25 million from Monterrey to the
United States. Perez testified that he met with Aguirre in
Brownsville and that Aguirre told him that he was moving Garcia
Abrego’s money through the United States to the Cayman Islands.
The funds in the Swiss and Cayman Islands accounts were traceable
to accounts in McAllen, Texas owned by the Casa de Cambio Nuevo
Leon and the Casa de Cambio Colon, two exchange houses located in
Monterrey. All of this evidence provided ample basis for the
district court to conclude that the foreign bank records had some
tendency to make the fact that Garcia Abrego had derived
substantial income from the sale of narcotics, an element
30
Garcia Abrego points out that Olivella was removed as a
beneficial owner from this account a few days after it was
opened. At most, this is a fact properly considered by the jury
in determining the weight to give the records regarding this
account in determining whether the funds in the account were
traceable to Garcia Abrego. It does not indicate that the
records relating to the account are irrelevant. See FED. R. EVID.
401 (“‘Relevant evidence’ means evidence having any tendency to
make the existence of any fact that is of consequence to the
determination of the action more probable or less probable than
it would be without the evidence.” (emphasis added)); cf. Rhodes
v. Guiberson Oil Tools, 75 F.3d 989, 998 n.2 (5th Cir. 1996) (en
banc) (Emilio M. Garza, J., concurring) (“[T]he standard of
relevancy under Rule 401 is intentionally much easier to satisfy
. . . than the standard for sufficiency of the evidence . . .
.”).
31
Additionally, public records of a land transaction
introduced at trial listed Garcia Abrego’s wife as Maria del
Carmen Olivella de Garcia.
86
necessary to support his conviction for conducting a CCE, more
probable than it would be in the absence of the records. This is
all that is necessary to render the evidence legally relevant.
See FED. R. EVID. 401. The foreign records were also plainly
relevant to the money laundering conspiracy count because they
evidenced financial transactions of large sums of money that the
jury could reasonably conclude constituted proceeds from the sale
of narcotics.
Garcia Abrego next contends, without any supporting legal
analysis, that admission of the foreign records violated Rule 403
of the Federal Rules of Evidence. Because Garcia Abrego has not
demonstrated that the probative value of the records was
“substantially outweighed by the danger of unfair prejudice,
confusion of the issues, or misleading the jury, or by
considerations of undue delay, waste of time, or needless
presentation of cumulative evidence,” this argument lacks merit.
FED. R. EVID. 403.
Garcia Abrego next contends, without explanation, that
admission of the records violated Rule 404(b) of the Federal
Rules of Evidence. This argument also lacks merit. As
demonstrated above, the foreign records constituted intrinsic
evidence that Garcia Abrego engaged in a CCE and a money
laundering conspiracy rather than extrinsic evidence of other
crimes, wrongs, or acts offered to prove Garcia Abrego’s bad
character and his propensity to act in conformity therewith.
Accordingly, admission of the financial records did not violate
87
Rule 404(b). See United States v. Davis, 19 F.3d 166, 171 (5th
Cir. 1994).
Finally, Garcia Abrego contends that admission of the
foreign bank records violated Rule 802, which generally precludes
the admission of hearsay. See FED. R. EVID. 802. This argument
ignores the fact that § 3505 creates an exception to Rule 802.
See 18 U.S.C. § 3505 (providing that foreign records meeting its
criteria “shall not be excluded as evidence by the hearsay
rule”); Sturman, 951 F.2d at 1490 (“Section 3505 establishes an
exception to the hearsay rule for foreign business documents.”).
Rule 802 thus could not operate to preclude admission of the
foreign bank records.
IV. CONCLUSION
For the foregoing reasons, we AFFIRM the district court’s
judgment of conviction and sentence.
88
