            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                     Fifth Circuit

                                                  FILED
                                                                                     October 6, 2009
                                            No. 08-50118
                                                                                 Charles R. Fulbruge III
                                                                                         Clerk



UNITED STATES OF AMERICA

                                                         Plaintiff-Appellee

v.

JAIME TORRES; ROBERTO TORRES; BLANCA TORRES

                                                         Defendants-Appellants




                     Appeals from the United States District Court
                           for the Western District of Texas
                                     (2:06-CR-76)



Before REAVLEY, SMITH, and DENNIS, Circuit Judges.
PER CURIAM:*
        Appellants, Jaime, Roberto, and Blanca Torres, jointly appeal from their
convictions on drug-related charges and for conspiracy to launder money. Before
their joint trial, the defendants sought to suppress evidence uncovered from a
2001 warrantless search of Jaime and Roberto Torres’s parents’ ranch. They also



        *
          Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not be published
and is not precedent except under the limited circumstances set forth in 5TH CIR . R. 47.5.4.

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sought to suppress the results of a 2006 warrant-based search of Jaime and
Blanca Torres’s home. The district court denied both motions and appellants
seek reversal on these grounds. Appellant Blanca Torres also seeks to have her
conviction for money laundering under 18 U.S.C. § 1856(a)(1) & (h) set aside for
insufficient evidence. Finally, each of the defendants requests we amend the
district court’s forfeiture judgment, entered under 18 U.S.C. § 982(a) and 21
U.S.C. § 853(p), arguing that the district court incorrectly multiplied the jury
verdict from the forfeiture trial. As we hold that neither search violated the
Fourth Amendment and that, based on the deferential standard of review, there
was sufficient evidence for a reasonable jury to convict Blanca Torres, we affirm
Appellants’ convictions. Moreover, as all parties agree that the monetary
forfeiture judgment entered by the district court was inconsistent with the jury
verdict, we order that judgment be modified.
                                          Background
       In early 2001, Adrienne Martinez, a United States Border Patrol Agent,
located fresh footprints near the Texas-Mexico border. Thinking they were
the prints of an illegal entrant, Martinez and another agent followed those
tracks to the “Torres Ranch” property, owned and operated by the parents of
Jaime and Roberto Torres, solely for commercial purposes.2
       The ranch was fenced, so, without a warrant, the agents climbed the
fence and entered the property. The smell of unburnt marijuana led the
agents to a vehicle. The agents opened the trunk and discovered bundles of
marijuana inside. Spurred by this discovery to look further, more marijuana


       2
          Jaime Torres was charged with running the ranch and was allowed to use portions of the
property for his own commercial ventures. However, he has asserted no ownership interest in any of the
property the agents eventually searched on the grounds.

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was uncovered in another, nearby, vehicle. The agents then hid on the
property, waiting to see what else they would uncover. Eventually a truck
arrived carrying two men, one of whom the agents were later able to identify
as Jaime Torres. The men began to load the marijuana into their vehicle.
Then another truck arrived. The agents, fearing that their hideout had been
compromised, called for back-up. As other agents arrived, the two trucks fled
with their occupants. No arrests relevant to this appeal were made at this
time.
        At the start of 2006, Immigration and Customs Enforcement Agent
Noah Crist, who was assigned to the ongoing investigation of the Torreses’
activities, submitted an affidavit as part of his application for a search
warrant for Jaime and Blanca Torres’s home.3 In this affidavit Crist detailed
facts dated from 1997 through 2001, including the results of the 2001
warrantless search of the Torres Ranch, suggesting the Torreses’ involvement
with drug smuggling and money laundering. The affidavit also detailed wild
swings in the Torreses’ income, going from $26,000 to $1.4 million;
confidential informants describing the Torreses’ involvement with smuggling
routes; and that other members of the Torres family were arrested for drug
trafficking in 2003. Moreover, Crist stated that based on this evidence he
personally believed Jaime Torres was involved in illegal activities. As a result
of this evidence, the Magistrate Judge granted the warrant. The resulting
search of Jaime and Blanca Torres’s home uncovered what the government
later alleged was a ledger of drug transactions.


        3
          Agent Crist prepared a number of affidavits as part of his investigation. Appellants make
reference to several of these affidavits. However, it appears that their arguments on appeal turn on a
single affidavit submitted at the start of 2006 and thus we focus our discussion on this affidavit.

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      Jaime and Roberto Torres were subsequently indicted on one count of
violating 21 U.S.C. § 841(a)(1) & (b)(1)(A), intent to distribute more than
1,000 kilograms of marijuana, one count of violating 21 U.S.C. §§ 952(a),
960(a)(1) & (b)(1) and 963, conspiracy to import more than 1,000 kilograms of
marijuana into the United States, and one count of violating 18 U.S.C. §
1956(a)(1) & (h), conspiracy to launder monetary instruments. Blanca Torres
was indicted only on one count of violating 18 U.S.C. § 1956(a)(1) & (h). The
defendants filed joint motions to suppress the evidence uncovered during the
searches described above and the district court denied their motions.
      During their trial, among other evidence, the government presented
testimony from a number of alleged co-conspirators in the drug smuggling
operation, as well as the testimony of Juan P. Garza, who stated that he
laundered money for Jaime Torres. Moreover, the government showed that
Blanca Torres was the sole signatory on her and Jaime Torres’s business
bank account, which the government alleged contained deposits from the drug
smuggling operations. The government also demonstrated that Blanca made
deposits of several large sums from Juan Garza, without providing him the
services for which those payments were nominally made. In addition, it
showed Blanca made numerous large purchases from these accounts, living
well outside the income Jaime Torres claimed he received from their
legitimate business activities just a few years earlier, $23,000, including
buying several properties, a Rolex watch, and carrying over $11,000 in cash.
Blanca Torres’s only defense was that she lacked control over her husband’s
business decisions. The other defendants’ witnesses and arguments are not at
issue on appeal.


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      Each of the defendants was convicted on all counts. Subsequently, the
court held a forfeiture trial in which the jury determined that $750,000 was
traceable to the defendants’ conspiracies. The district court later entered a
monetary judgment, holding them jointly and severally liable for forfeiture of
$2,250,000, appearing to multiply the $750,000 verdict by the number of
defendants.
      Appellants timely appealed their convictions, arguing that the evidence
from the 2001 and 2006 searches should have been suppressed and Blanca
Torres claimed her conviction was based on insufficient evidence. Moreover,
the appellants collectively moved to have the district court’s forfeiture
judgment modified to reflect the jury’s verdict.
                                   Discussion
Appellants’ Fourth Amendment Claims
      In reviewing the denial of a motion to suppress, “‘we review the district
court’s factual findings for clear error and its legal conclusions, including its
ultimate conclusion as to the constitutionality of the law enforcement action,
de novo.’” United States v. Reyes, 349 F.3d 219, 222 (5th Cir. 2003) (quoting
United States v. Chavez, 281 F.3d 479, 483 (5th Cir. 2002)). Of particular
relevance to applying this standard to this case, we have held that “[w]hether
a defendant has standing to contest an allegedly illegal search is a question of
law.” United States v. Ibarra, 948 F.2d 903, 906 (5th Cir. 1991) (citing United
States v. Kye Soo Lee, 898 F.2d 1034, 1037 (5th Cir. 1990)).
The 2001 Search
      The 2001 search of the Torres Ranch is best conceptualized as raising
two potential Fourth Amendment violations, first the agents’ entry onto the


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property and second the search of the vehicles. Yet both of these Fourth
Amendment concerns can be dismissed as the defendants lacked the
reasonable expectation of privacy necessary to have standing to challenge
these searches. See United States v. Gomez, 276 F.3d 694, 697 (5th Cir. 2001)
(“Whether there is standing to contest the validity of a search ‘depends on (1)
whether the defendant is able to establish an actual, subjective expectation of
privacy with respect to the place being searched or items being seized, and (2)
whether that expectation of privacy is one which society would recognize as
reasonable.’” (quoting Kye Soo Lee, 898 F.2d at 1037-38))).
      The defendants lacked standing to challenge the agents’ entry, and
decision to remain, on the property because of the “open fields doctrine.” The
Supreme Court and this Circuit have recognized the stark distinction
between an “open field” and the “curtilage” of the home. “Open fields are
protected neither under the text of the Fourth Amendment nor under the
conception of the Amendment.” United States v. Pace, 955 F.2d 270, 274 (5th
Cir. 1992) (citing Katz v. United States, 389 U.S. 347 (1967)). They, by their
very nature, lack the social significance to create an objectively reasonable
expectation of privacy in the property.
      When determining whether an area is an open field or curtilage, the
Court has stated, “the central component of this inquiry [is] whether the area
harbors the ‘intimate activity associated with the “sanctity of a man’s home
and the privacies of life.”’” United States v. Dunn, 480 U.S. 294, 300 (1987)
(quoting Boyd v. United States, 116 U.S. 616, 630 (1886)). The Court then
went on to list four factors that should be considered in this analysis, “the
proximity of the area claimed to be curtilage to the home, whether the area is


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included within an enclosure surrounding the home, the nature of the uses to
which the area is put, and the steps taken by the resident to protect the area
from observation by people passing by.” Id. at 301.
        Based on this analysis, the Torres Ranch must be viewed as an open
field. The ranch was a commercial property separate and distinct from the
Torreses’ family home, not used for any form of domestic activity and
protected only by a scalable fence. Thus, the property was distinguished from
anything that could be characterized as typically containing the intimate
activities of a private home. Accordingly, no individual could claim a
reasonable expectation of privacy in the property. Without such an
expectation the defendants do not have standing to raise a Fourth
Amendment challenge to the agents’ warrantless entry.4
        The defendants likewise lack standing to challenge the search of the
vehicles on the ranch. To determine whether any of the defendants had a
constitutionally protected expectation of privacy in this property this court
has said a number of factors must be weighed “includ[ing] whether the
defendant has a possessory interest in the thing seized or the place searched,
whether he has the right to exclude others from that place, whether he has
exhibited a subjective expectation that it would remain free from
governmental invasion, whether he took normal precautions to maintain his




        4
          Such a conclusion is further supported by this court’s holding in Pace. In Pace, two officers
searching for drugs entered onto a property by one of them “squeezing through a gap between the main
gate and a fence post and the other by climbing over the gate.” Pace, 955 F.2d at 273. While searching
the property they “crossed at least two more gates” to look for signs of illegal activity. Id. The court
found that none of this conduct posed a constitutional concern, as it was merely an exercise of the
officers’ “privilege[] to stand in the open field.” Id. at 275.

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privacy and whether he was legitimately on the premises.” United States v.
Haydel, 649 F.2d 1152, 1155 (5th Cir. 1981).
       As with the agents’ entry onto the Torres Ranch, each of the factors
weighs against finding the defendants had a reasonable expectation of
privacy in the cars. Both of the cars belonged to Jaime and Roberto’s parents,
and none of the defendants had any sort of possessory interest in the vehicles;
the record provides no indication that the defendants were empowered to use
the cars for any purpose, thus the record suggests that the defendants had no
authority to exclude others from using the vehicles; and the defendants did
not lock the vehicles’ trunks nor attempt to move the cars to a secluded
location, defeating any suggestion that they had a subjective expectation of
privacy or took normal precautions to ensure the vehicles would remain
private. Accordingly, we conclude that the defendants did not have a
constitutionally protected expectation of privacy in the vehicles or their
contents.
       As a result, because we find the defendants lacked standing to
challenge the 2001 search, we affirm the district court’s denial of the
defendants’ motion to suppress.5
The 2006 Search
       Appellants also argue that the search warrant for the 2006 search of
Jaime and Blanca Torres’s home lacked probable cause and thus the fruits of
that search should be suppressed. In particular, they suggest that the
affidavit supporting the warrant was deficient because it relied on stale and


       5
          The government raised a number of other bases on which we could conclude that the search
was constitutional. We do not reach these arguments as we find the initial step of the Fourth Amendment
inquiry, standing, foreclosed to Appellants.

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irrelevant evidence and that the officer applying for the warrant made
omissions and deliberately deceived the court as to the basis of his belief that
the Torreses’ were engaged in criminal activity. Yet, assuming arguendo that
Appellants’ claims are correct and render the warrant unsupported by
probable cause, the fruits of the search still fall cleanly within the “good faith
exception” to the exclusionary rule, creating a basis upon which to uphold the
district court’s ruling.
      Under the good faith exception, “[i]f an officer’s ‘reliance on the
magistrate’s probable-cause determination and on the technical sufficiency of
the warrant he issues [is] objectively reasonable,’ a court need not suppress
the fruits.” United States v. Flanders, 468 F.3d 269, 271 n.2 (5th Cir. 2006)
(quoting United States v. Leon, 468 U.S. 897, 922 (1984)) (second alteration in
original). Generally, we presume that it is objectively reasonable for an officer
to execute a warrant. See United States v. Pope, 467 F.3d 912, 916 (5th Cir.
2006) (endorsing a district court’s statement that only in “exceptional
circumstances” does the good faith exception not apply to the execution of a
warrant). However, this court has recognized four primary situations where
this presumption will be overcome and the good-faith exception will not be
applied to an officer’s execution of a warrant:
      i. when the magistrate or state judge issues a warrant in reliance
      on a deliberately false affidavit;
      ii. when the magistrate or state judge abandons his or her judicial
      role and fails to perform in a neutral and detached fashion;
      iii. when the warrant is based on an affidavit so lacking in indicia
      of probable cause as to render an officer’s belief in it
      unreasonable; and
      iv. when the warrant is so facially deficient that it fails to
      particularize the place to be searched or the items to be seized.


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Id. at 916-17 (citing Leon, 468 U.S. at 914). Appellants’ arguments seek to
characterize the 2006 search as falling into either the first or third
circumstance. However, to overcome the presumption of reasonableness both
these exceptions-to-the-exception have their own requirements and we find
them unsupported by the evidence in this case.
      Regarding the first circumstance, to suppress evidence because a
warrant omitted or mischaracterized relevant information, this court has
determined such an error must be shown to have been “knowingly and
intentionally made or [] made in reckless disregard for the truth.” United
States v. Cronan, 937 F.2d 163, 165 (5th Cir. 1991); see also United States v.
Martin, 615 F.2d 318, 329 (5th Cir. 1980) (“a proven misstatement can vitiate
an affidavit only if it is established that the misstatement was the product ‘of
deliberate falsehood or of reckless disregard for the truth’” (quoting Franks v.
Delaware, 438 U.S. 154, 171 (1978))). As these are factual predicates to
applying the legal standard of the good faith exception, we review the district
court’s determination for clear error. See United States v. Looney, 532 F.3d
392, 395 (5th Cir. 2008), cert. denied, 129 S. Ct. 513 (2008).
      Appellants allege that the affidavit supporting the warrant omitted
information about the Torreses’ legitimate business operations—potentially
explaining the suspicious transactions and deposits described in the
affidavit—and other searches of the defendants’ property—which had failed
to uncover evidence of illegal activities. Moreover, they argue that Crist
misled the court to believe that the Torreses were engaged in illegal
activities, by stating his personal conclusion that they were engaged in
unlawful activities, which relied on out-of-date evidence and an inappropriate


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assumption that their relatives’ illegal activities indicated their involvement
in drug trafficking. However, Crist included with his affidavit information
about Jaime and Blanca Torres’s tax returns, which he noted reported
income, presumably from legitimate sources. Thus, the agents’ failure to
restate this potentially exculpatory information did not make out the
requisite mens rea. Moreover, Appellants fail to introduce any evidence that
would suggest Crist intended to or believed he was likely misleading the court
as to the basis for or strength of his belief that the Torreses were engaged in
criminal activity. Accordingly, we find the district court committed no clear
error in determining that the alleged omitted or misstated information was
not shown to be intentionally or recklessly placed in the affidavit and
therefore in applying the good faith exception.
      The third circumstance where the good faith exception may not apply is
if a warrant is unreasonably based on a “bare bones” affidavit. United States
v. Cordero, 465 F.3d 626, 630 (5th Cir. 2006). Appellants raise the specter of
this exception by arguing that the 2006 affidavit relied on stale information.
To determine whether “stale” information in an affidavit makes a search fall
outside the good faith exception, this court has said that the proper inquiry is
whether the staleness caused the warrant to be “so deficient that no
reasonable officer could have believed that it established probable cause.”
United States v. Craig, 861 F.2d 818, 821 (5th Cir. 1988). As this is also a
factual predicate to applying the exception-to-the-exception, we again review
the district court’s determination for clear error. See Looney, 532 F.3d at 395.
      As described above, Agent Crist’s affidavit detailed not only facts from
1997 to 2001, indicating the Torreses were engaged in illegal activities, but


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also income statements from 2006, showing vast and unexplainable influxes
of money and statements of confidential informants confirming Roberto and
Jaime Torres’s involvement with smuggling routes. Given the breadth and
variety of this information, spanning numerous years and demonstrating a
series of grounds to believe the Torreses were involved in illegal activities, we
cannot say that it was clear error for the district court to conclude a
reasonable agent could believe the warrant was issued based upon a
sufficient affidavit.
      Therefore, as the state is entitled to the fruits of a search conducted in
“good faith,” we affirm the district court’s denial of the motion to suppress.
Blanca Torres’ s Sufficiency of the Evidence Claim
      When considering a sufficiency of the evidence claim, “‘we determine
whether a reasonable jury could find that the evidence establishes the guilt of
the defendant beyond a reasonable doubt,’ viewing the evidence in the light
most favorable to the government and with all reasonable inferences and
credibility choices made in support of a conviction.” United States v. Harris,
566 F.3d 422, 435 (5th Cir. 2009) (quoting Williams, 507 F.3d 905, 908 (5th
Cir. 2007)).
      Blanca Torres was convicted of conspiracy to launder money. To prove
this crime at trial, the government must “show that [the defendant]
knowingly conspired with at least one other person to (1) conduct or attempt
to conduct a financial transaction; (2) with the knowledge that it involved
proceeds of specified unlawful activity (here controlled substance offenses);
and (3) with the knowledge that the transaction was designed in whole or in
part to conceal the nature, source, ownership, or control of the proceeds, or to


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avoid a federal or state reporting requirement.” United States v. Fernandez,
559 F.3d 303, 313 (5th Cir. 2009), cert. denied, 129 S. Ct. 2783 (2009)
(parenthetical in original). In making out these elements this court has stated
that “[d]irect evidence of a conspiracy is unnecessary; each element may be
inferred from circumstantial evidence.” United States v. Casilla, 20 F.3d 600,
603 (5th Cir. 1994).
      As described above, the evidence against Blanca Torres went almost
entirely uncontested and provided strong circumstantial inferences that she
was involved in laundering money from unlawful activities. The government
showed that Blanca Torres’s husband and brother-in-law were intimately
involved in large scale drug trafficking; that Blanca transacted directly with a
man involved in her husband’s money laundering operation for these drug
transactions, providing him monies for purchases the government alleged,
and Garza testified, were part of the laundering scheme and receiving money
back from him nominally for services, which were in fact never provided.
Moreover, the government showed that she made purchases that were well
outside the declared income provided by her and her husband’s legal business
operations. Thus, the government has brought forth direct evidence that
Blanca Torres engaged in financial transactions and sufficient circumstantial
evidence that she was aware that her transactions with Garza were part of
her husband’s money laundering connected to his illegal transactions and
distinct from her lawful business operations. At the same time, Blanca did
not offer any explanation, let alone a compelling one, for why she could have
concluded these transactions were part of anything but her husband’s illegal
operations. Her defense of ignorance does not defeat the reasonable


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inferences that conceivably could have been drawn from her actions and
contacts. True, the evidence is far from compelling. However, taking all the
inferences created by this evidence in the light most favorable to the
government, as we are required to do, we cannot say it is unreasonable for a
jury to have concluded that Blanca Torres was guilty of money laundering.
Accordingly, we affirm Blanca Torres’s conviction for conspiracy to launder
money.
The Forfeiture Judgment
      After a special forfeiture trial, the jury determined that $750,000 was
traceable to the conspiracies charged. All parties agree that this was the
entirety of the jury’s verdict. Accordingly, the monetary judgment the district
court entered against the defendants, seemingly multiplying the jury verdict
by the maximum number of defendants—leading the court to hold the
defendants jointly and severally liable for $2,250,000—was in error. Thus, we
modify the district court’s order on the basis of plain error. See, e.g., Sparks v.
Baxter, 854 F.2d 110, 115 (5th Cir. 1988) (modifying judgment on appeal for
plain error); Cage v. Cage, 74 F.2d 377, 378 (5th Cir. 1934) (same).
                                   Conclusion
      For these reasons, the appellants’ convictions are AFFIRMED, and the
district court’s forfeiture judgment is amended to reduce the amount for
which Jaime, Roberto, and Blanca Torres are held jointly and severely liable
to $750,000, and, as amended, is AFFIRMED.




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