218 F.3d 784 (7th Cir. 2000)
United States of America, Plaintiff-Appellee,v.Roberto FEBUS, a/k/a Bobby Santos; Efrain Santos,  a/k/a Frank Santos, a/k/a Puerto Rican Frank;  Benedicto Diaz, a/k/a Ito; Jose Santos; and  Angel Morales, a/k/a Wiso, Defendants-Appellants.
Nos.  98-1252, 98-2709, 98-2053, 98-4060, 98-2508
In the  United States Court of Appeals  For the Seventh Circuit
Argued* October 28, 1999
Decided July 14, 2000

Appeals from the United States District Court for the Northern District of Indiana, Hammond Division.  No. 96 CR 44--James T. Moody, Judge.[Copyrighted Material Omitted][Copyrighted Material Omitted]
Before Ripple, Manion, and Evans, Circuit Judges.
Manion, Circuit Judge.


1
Efrain Santos, Roberto  Febus, Benedicto Diaz, Angel Morales, and Jose  Santos ran an illegal lottery. For their roles, a  jury convicted Efrain Santos and Febus of  conspiracy to conduct an illegal gambling  enterprise, and of conducting an illegal gambling  enterprise. The jury also convicted Efrain Santos  of laundering the proceeds of the illegal  lottery. Diaz and Morales pleaded guilty to  conspiracy to launder the gambling proceeds. And  Jose Santos1 was convicted of conspiracy and of  aiding and abetting an illegal gambling business.  All defendants appeal, and we affirm.

I.

2
Efrain Santos operated an illegal lottery, known  as a "bolita," in East Chicago, Indiana from the  1970's until 1994. He based the bolita's winning  numbers on the daily Pick Three and Pick Four  Illinois lottery games, and on the Puerto Rican  Lottery. He first worked for a man named Ken Eto  who ran a larger bolita in Indiana and Illinois  in the late 1960's and early 1970's, until Santos  took over the Indiana operation in the 1970's.  While Santos was in prison on narcotics charges  during the late 1970's and early 1980's, Roberto  Febus served as the bolita's interim leader until  Santos returned in 1984.


3
In Santos's bolita, runners accepted bets  primarily in bars and restaurants in East  Chicago, withheld their commissions from the  cash, and delivered the money to the collectors,  Benedicto Diaz and Angel Morales. Diaz and  Morales collected the betting slips and money  from the runners at a bar and delivered the  proceeds to Santos. Santos used some of the  proceeds to pay the salaries of Diaz and Morales,  and to pay the bolita's winners.


4
The FBI and IRS began investigating the bolita  in January 1992. On March 30, 1993, the FBI  searched Santos, his residences and vehicles, as  well as Diaz and Morales and their vehicles, and  discovered betting slips, ledgers, cash and other  evidence of a gambling enterprise. Although the  lottery shut down for a couple of weeks after the  search, Diaz and Morales resumed the operation by  collecting at a different location. On June 22,  1993, the FBI searched Santos, Diaz and Morales  again, and found further evidence of the illegal  gambling scheme. But even after this second  search, the lottery continued. And after  conducting a third search on October 12, 1993,  the FBI discovered more betting slips, cash, and  other evidence of the bolita.


5
Presented with this and other evidence, a  federal grand jury returned a ten-count  indictment against Santos, Febus, Diaz and  Morales. Count 1 charged them with conspiracy to  conduct an illegal gambling business from January  1989 to December 1994, in violation of 18 U.S.C.  sec. 371. Count 2 charged the defendants with  conducting an illegal gambling business, in  violation of 18 U.S.C. sec. 1955. Count 3 charged  Santos, Diaz, and Morales with conspiracy to use  the proceeds of an illegal gambling business to  promote the carrying on of the business, in  violation of 18 U.S.C. sec. 1956(h). Count 4  charged Santos and Diaz with money laundering by  completing a financial transaction with the  proceeds of the illegal gambling business with  the intent to promote the carrying on of the  business, in violation of 18 U.S.C. sec.  1956(a)(1)(A)(i). Count 5 charged Santos and  Morales with money laundering to promote the  gambling business, in violation of 18 U.S.C. sec.  1956(a)(1)(A)(i). And Counts 6-10 constituted  more money laundering charges.


6
A jury convicted Santos of Counts 1 through 5,  and Febus of Counts 1 and 2; the district court  sentenced Santos to 210 months in prison, and  Febus to 30 months in prison.


7
Diaz pleaded guilty to Count 3 and, as part of  his plea agreement, the government dismissed the  other counts against him and agreed to recommend  a downward departure (under sec.5K1.1 of the  Sentencing Guidelines) in exchange for his  truthful testimony against his co-defendants.  Diaz testified at Santos's trial, but the  government declined to file the sec.5K1.1 motion,  concluding that his testimony was inconsistent,  untruthful, and bolstered his co-defendants'  defense. Diaz moved to withdraw his plea  agreement, alleging that the government breached  it by failing to file the sec.5K1.1 motion, but  the district court denied his motion and  sentenced him to 108 months in prison.


8
Like Diaz, Morales pleaded guilty to Count 3,  entered into an identical plea agreement, and  testified at Santos's trial. The government filed  the sec.5K1.1 motion, and then called him to  testify at Santos's sentencing hearing as well.  After Morales testified inconsistently at the  sentencing hearing, the government moved to  withdraw its sec.5K1.1 motion, which the district  court granted. Morales filed a motion to  reconsider, which the district court denied and  sentenced him to 151 months in prison. This  consolidated appeal followed.

II.
A.  Efrain Santos

9
Efrain Santos appeals only his money laundering  convictions, arguing that the evidence was  insufficient to convict him of money laundering  because his cash payments to the bolita's  collectors and winners were essential  transactions of the illegal gambling business,  and thus cannot also constitute transactions  under the promotion provision of the money  laundering statute, 18 U.S.C. sec.  1956(a)(1)(A)(i).


10
"A defendant bears an extremely heavy burden in  attempting to overturn a conviction on the basis  of insufficient evidence;" United States v. Vega,  72 F.3d 507, 513 (7th Cir. 1995), and we will  reverse a conviction "only if, after viewing the  evidence in the light most favorable to the  government, we determine that no rational trier  of fact could have found the defendant guilty  beyond a reasonable doubt." Id. Title 18 U.S.C.  sec. 1956(a)(1)(A)(i) of the money laundering  statute provides:


11
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--


12
(A)(i) with the intent to promote the carrying on  of specified unlawful activity [shall be  punished].


13
To prove money laundering under this promotion  provision, the government must show that the  defendant: 1) conducted a financial transaction  with the proceeds of an illegal activity; 2) knew  that the property represented illegal proceeds;  and 3) conducted the transaction with the intent  to promote the carrying on of the unlawful  activity. United States v. Emerson, 128 F.3d 557,  561 (7th Cir. 1997).


14
While Santos acknowledges that he used illegal  proceeds to pay the bolita's collectors and  winners, he contends that his transactions merely  completed the substantive offense of illegal  gambling, and thus did not "promote the carrying  on" of the bolita. He claims that since the money  laundering statute created the separate crime of  money laundering, it only punishes the practice  of reinvesting the proceeds of an already  completed unlawful activity to promote the  expansion of that unlawful activity, and thus the  government failed to prove that his transactions  satisfied the statute's promotion requirement.


15
A transaction satisfies the promotion provision  of the money laundering statute if it constitutes  "the practice of plowing back proceeds of [the  illegal activity] to promote that activity."  United States v. Jackson, 935 F.2d 832, 842 (7th  Cir. 1991). In Jackson, we affirmed a money  laundering conviction in which a defendant,  Joseph Davis, used the proceeds of drug  transactions to purchase telephone paging beepers  that were used to contact drug couriers and  instruct them on the location of additional money  pickups. We determined that since Davis purchased  the beepers with the intent to promote the  continued prosperity of his criminal enterprise  by plowing money back into his drug operation, he  violated sec. 1956(a)(1)(A)(i) of the money  laundering statute. Id. at 841. According to  Jackson, therefore, the money laundering statute  created a separate crime of money laundering that  is distinct from the substantive offense (in this  case gambling) that initially generated the  illegal funds, see United States v. Heaps, 39  F.3d 479, 486 (4th Cir. 1994); and it punishes  transactions that promote the continued  prosperity of the underlying offense. See United  States v. Conley, 37 F.3d 970, 979 n. 12 (3d Cir.  1994) (evidence of the defendant's use of illegal  gambling proceeds to pay vendors to service  illegal poker machines constituted an offense  under the promotion provision of 18 U.S.C. sec.  1956(a)(1)).


16
In this case, the government established that  Santos reinvested the bolita's proceeds to ensure  its continued operation for over 5 years, well  beyond the 30 days required to complete the  substantive offense of illegal gambling under 18  U.S.C. sec. 1955. Furthermore, his own records  show that the income to his bolita expanded from  approximately $250,000.00 per year for the years  1989 to 1992, to $330,000.00 for 1993, and up to  $410,000.00 for 1994. His payments to his  collectors, Diaz and Morales, compensated them  for collecting the increased revenues and  transferring those funds back to him. And his  payments to the winning players promoted the  bolita's continuing prosperity by maintaining and  increasing the players' patronage. See United  States v. Cole, 988 F.2d 681, 684 (7th Cir. 1993)  (the defendant's payment of "interest" to  defrauded investors promoted the fraudulent  investment scheme.). Therefore, the government  produced sufficient evidence to enable a  reasonable jury to find Santos guilty of money  laundering beyond a reasonable doubt.2

B.  Benedicto Diaz

17
Benedicto Diaz appeals the district court's  denial of his motion to withdraw his plea  agreement, arguing that since his testimony  fulfilled his side of the bargain by assisting  the convictions of his co-defendants, the  government breached the agreement by failing to  file a downward departure motion for him under  sec.5K1.1.3


18
We review the district court's denial of a  motion to withdraw a guilty plea for abuse of  discretion. United States v. Schilling, 142 F.3d  388, 394 (7th Cir. 1998). A court may permit a  defendant to withdraw a guilty plea if the  defendant provides "any fair and just reason."  Id. at 398 (citing United States v. Abdul, 75  F.3d 327, 329 (7th Cir. 1996)). And we will  uphold the district court's findings about  whether the defendant has provided a fair and  just reason unless they are clearly erroneous.  Schilling, 142 F.3d at 398.


19
In this case, Diaz's plea agreement provided in part:


20
I further understand that at the time of  sentencing, in exchange for my cooperation, the  United States of America will file a departure  motion with the Court pursuant to guideline  section 5K1.1 and Title 18, United States Code,  Section 3353(e); I further understand that if the  Court accepts this plea agreement and grants the  government's 5K1.1 motion, the government will  recommend a departure which places my final  guideline sentencing range between level 1 to  level 15 on the guideline sentencing table.  However, I understand that this recommendation is  based upon my continuing cooperation with the  United States and my agreement to always provide  truthful and complete information and testimony;  I also understand that if I fail to provide  complete, truthful and candid information and  testimony as required by this plea agreement, the  government will not be obligated to file the  departure motion and I will not be allowed to  withdraw my guilty plea.


21
(Plea Agreement para.9(i).) At his plea hearing,  Diaz also acknowledged that if he failed to  testify "fully and completely and truthfully,"  the government would have no obligation to file  the departure motion. Thus, under the terms of  the agreement, the government validly conditioned  its obligation to file the sec.5K1.1 motion on  Diaz's "complete, truthful and candid" testimony.  See United States v. Lezine, 166 F.3d 895, 901  (7th Cir. 1999).


22
At the trial, Diaz testified that he never  really thought that the lottery was illegal.4  The district court found that Diaz's trial  testimony was inconsistent with earlier  statements he made under oath, and bolstered the  defense of his co-defendants. His trial testimony  contradicted: 1) his plea hearing (where he admitted that he knowingly conspired to launder  the proceeds of an illegal enterprise); 2) his earlier statements to co-conspirators about his  fear of going to jail for participating in the  lottery; and 3) his earlier admission to an FBI  agent that he knew that the bolita was illegal  after the FBI's March 30, 1993 search. And the  fact that Diaz moved his collection operations to another bar after the FBI search further demonstrates that he knew that the lottery was illegal at that time. Moreover, his trial  testimony supported Santos's defense theory that Santos and his co-conspirators had always thought  that the lottery was legal. Therefore, the district court did not commit clear error in finding that Diaz failed to testify completely or  truthfully.


23
The "overarching theme" of Diaz's plea agreement  was his complete, truthful, and candid testimony.  See United States v. Ramunno, 133 F.3d 476, 483  (7th Cir. 1998). Since he failed to fulfill his  part of the bargain, and supported the defense of  his co-defendants instead, the government was not  required to move for a downward departure  pursuant to sec.5K1.1. Diaz's breach of the plea  agreement does not constitute a "fair and just"  reason to withdraw his plea, and thus the  district court did not abuse its discretion in  denying his motion.

C.  Angel Morales

24
On appeal, Morales argues that he was denied: 1)  his right to an interpreter in violation of the  Court Interpreter's Act; 2) his Sixth Amendment  right to counsel when he appeared to testify at  Santos's sentencing hearing; and 3) his Sixth  Amendment right to the effective assistance of  counsel.


25
1.  The Court Interpreter's Act.


26
Morales argues that since English is not his  primary language, he was denied his right to an  interpreter in violation of the Court  Interpreter's Act, 28 U.S.C. sec. 1827. The Act  requires the court to provide an interpreter for  a defendant who primarily speaks a language other  than English, 28 U.S.C. sec. 1827(d)(1)(A); its  purpose is to ensure that the defendant can  comprehend the proceedings and communicate  effectively with counsel. United States v.  Sanchez, 928 F.2d 1450, 1455 (6th Cir. 1991).  Since this issue "hinges on a variety of factors,  including the defendant's knowledge of English  and the complexity of the proceedings and  testimony, the trial judge, who is in direct  contact with the defendant, must be given wide  discretion." Valladares v. United States, 871  F.2d 1564, 1566 (11th Cir. 1989); see also  Sanchez, 928 F.2d at 1455.


27
Morales first contends that he was unable to  comprehend his plea colloquy without an  interpreter, and thus he did not knowingly and  voluntarily waive his right to appeal his  sentence. According to Morales, the following  exchange demonstrates that it was difficult for  him to comprehend his waiver:


28
Q And if I [the district court] sentence you  within the appropriate range, are you giving up  or waiving your right to appeal your sentence on  any ground and also agreeing not to contest your  sentence in any post-conviction proceeding?


29
A No.


30
Q You're not. Read paragraph M and see if you  want to change that answer. (Conference between  counsel and client, not within hearing)


31
A Yeah, I--my right to appeal.


32
(Tr. 23-24.)


33
The complete transcript of his plea hearing,  however, shows that he understood the  proceedings. At the start of the hearing, the  court asked Morales whether he can "speak, read,  write and understand English," and he answered,  "I get by." He also confirmed that he fully  discussed his indictment and guilty plea with his  counsel. When the court asked him if he wanted to  review the plea agreement with his attorney once  more before the court proceeded with further  questions, he declined the opportunity. After  Morales consulted with his attorney, the court  carefully reviewed the waiver with him again to  confirm that he understood that provision:


34
Q Okay. If you're sentenced within the  appropriate guideline range, as I understand this  agreement, you are expressly giving up your right  to appeal your sentence and you're also giving up  your right to contest your sentence under any  post-conviction proceeding, is that true?


35
A Yes, sir.


36
Q Okay. Do you understand what all that means?


37
A Yes.


38
(Tr. 24.) The court continued:


39
Q Do you fully understand the terms of this plea  agreement that we went over?


40
A Yes, sir.


41
Q No doubt about it?


42
A No doubt about it, sir.


43
(Tr. 25-26.) Again, the court confirmed that  Morales understood that he was waiving his right  to appeal


44
Q Now, normally, under certain circumstances, you  or the Government would have the right to appeal  any sentence that I impose. But you do  understand, sir, that by entering into your plea  agreement with the Government and entering your  plea of guilty here today, you are giving up your  right to appeal your sentence?


45
A Yes, sir.


46
Q We've gone over that before. Just want to make  sure you understand that?


47
A Yes, I understand.


48
(Tr. 30.) And the following exchange occurred at  the conclusion of the court's thorough colloquy:


49
Q Do you have any questions of me about anything  you and I talked about here this morning?


50
A No, sir.


51
Q You understand everything?


52
A I understand.


53
Q Fully and completely?


54
A No doubt about it.


55
Q No doubt about it?


56
A No doubt about it.


57
(Tr. 44-45.)


58
Morales's clear and responsive answers  throughout the colloquy demonstrate that he  comprehended the proceedings, communicated  effectively with his counsel, and knowingly and  voluntarily waived his right to appeal his  sentence. Thus, the district judge did not abuse  his "wide discretion" by failing to appoint an  interpreter to assist Morales at his plea  hearing.


59
At the subsequent trial, however, the government  ensured that Morales testified through an  interpreter after he stated that it was difficult  for him to speak English, which he could  understand only "a little bit." But when he later  testified for the government at Santos's  sentencing hearing, he did so without an  interpreter; and according to Morales, that  caused him to become confused, and to  inadvertently testify inconsistently with his  prior statements and thus squander his downward  departure.


60
At his plea hearing and at the trial, Morales  testified that he began collecting bets for  Santos in his bolita in 1984. But at Santos's  sentencing hearing, Morales testified that it was  Roberto Febus (not Santos) who hired him to work  in the bolita in 1984, and that Santos did not  get involved until late 1987 or early 1988.  Moreover, when Morales testified in English at  Santos's sentencing hearing, he affirmed that he  was positive that Santos started with the bolita  in late 1987 or early 1988, because he recalled  that it was after the date of his daughter's  wedding on March 28, 1987. The government  concluded that Morales's testimony was  inconsistent, untruthful,5 and material to the  issue of Santos's sentencing, and thus moved to  withdraw its sec.5K1.1 recommendation, which the  district court granted.


61
The record demonstrates that Morales's testimony  at Santos's sentencing hearing was deliberate,  and not the result of confusion or mistake. His  testimony that Santos was involved in the bolita  in 1984 was consistent at his plea hearing  (without the aid of an interpreter) and at the  trial (with an interpreter). At Santos's  sentencing hearing, the fact that Morales's  testimony linked Santos's involvement with the  bolita to sometime after his daughter's wedding  day in 1987 (a special and memorable occasion for  Morales) shows that his testimony was  intentional, and not the result of a  misunderstanding. And finally, when Morales  claimed that he had difficulty speaking and  understanding English at his own sentencing  hearing (which occurred after Santos's sentencing  hearing), the district judge (who also presided  at Morales's plea hearing, at the trial, and at  Santos's sentencing hearing) responded that he  and Morales "have understood each other from the  get-go. Every time I see him, he speaks English  and he understands me. I have had no indication  in the past that was not the case." While we  acknowledge that the conflicting evidence on this  issue makes it difficult to resolve, we conclude  that Morales had a sufficient command of English  to comprehend his proceedings and to testify  effectively, and thus was not entitled to an  interpreter under the Court Interpreter's Act.6


62
2.  Sixth Amendment right to counsel.


63
Morales next argues that his attorney's failure  to appear and represent him at Santos's  sentencing hearing violated his Sixth Amendment  right to counsel. The Sixth Amendment guarantees  the defendant the right to counsel at every  critical stage of "the proceedings against him,"  Coleman v. Alabama, 399 U.S. 1, 7 (1970) (quoting  Powell v. Alabama, 287 U.S. 45, 69 (1932)),  including, for example, the indictment,  arraignment, preliminary hearing, and sentencing.


64
United States v. O'Leary, 856 F.2d 1011, 1014  (7th Cir. 1988).


65
According to Morales, his appearance at Santos's  sentencing hearing was a critical stage in his  proceedings because the government required his  testimony under the plea agreement, and thus his  downward departure was still at risk. But Morales  was merely a witness at Santos's sentencing  hearing, which was not an adversarial process  "against him." And while he faced losing his  downward departure if he testified falsely, that  does not entitle him to his counsel's assistance,  for the Sixth Amendment "is inapplicable to other  types of proceedings, even though they may have a  critical impact on the destiny of the  individual." Ganz v. Bensinger, 480 F.2d 88, 89  (7th Cir. 1973) ("[The Sixth Amendment] does not  broadly encompass every proceeding which may  result in a deprivation of liberty or  property."). Id.


66
3. Sixth Amendment right to the effective  assistance of counsel.


67
For the first time on appeal, Morales raises  several reasons why he was denied his Sixth  Amendment right to the effective assistance of  counsel. While "it is not our province as an  appellate court to make findings regarding  counsel's performance when, unlike the district  court, we have not had the benefit of actually  having observed it," we will resolve this issue  "when, as here, both parties ask us to resolve  the matter, the question has been briefed and  argued, and we have the entire trial record  before us." United States v. Reiswitz, 941 F.2d  488, 495 (7th Cir. 1991).7 "In reviewing a  claim of ineffective assistance, we apply the  familiar two-pronged test of Strickland v.  Washington, 466 U.S. 668 (1984): First, the  defendant must prove that his counsel's  performance 'fell below an objective standard of  reasonableness,' and second that but for  counsel's deficiency, there is a reasonable  probability that the outcome would have been  different." United States v. Alex Janows & Co., 2  F.3d 716, 721 (7th Cir. 1993) (internal citations  omitted).


68
Morales first contends that his counsel was  ineffective by failing to refresh his  recollection of his prior testimony before  Santos's sentencing hearing, and thus he  mistakenly testified to the wrong date of  Santos's involvement in the bolita, and  squandered his downward departure. But since  Morales had already testified consistently at his  plea hearing and at the trial that he began  working as a collector for Santos in the bolita  in 1984, his counsel had no reason to believe  that he would need to refresh his recollection.  Additionally, the record does not indicate that  Morales informed his counsel that he needed to  review his prior testimony, or that he intended  to change his testimony. See Strickland, 466 U.S.  at 691 ("The reasonableness of counsel's actions  may be determined or substantially influenced by  the defendant's own statements or actions.").  Rather, the record demonstrates that Morales's  contradictory testimony at Santos's sentencing  hearing was deliberate, and not the result of  confusion or mistake. And since the Sixth  Amendment does not require defense counsel to  take all possible precautions to protect a  defendant from testifying falsely and breaching  his plea agreement, this claim fails.8


69
Morales next argues that his counsel was  ineffective by failing to file a motion to  withdraw his guilty plea after the government  withdrew its sec.5K1.1 motion. A defendant needs  a "fair and just" reason to withdraw a guilty  plea. Schilling, 142 F.3d at 398. The plea  agreement in this case conditioned the  government's obligation to file the sec.5K1.1  motion on Morales's "complete, truthful, and  candid testimony." Since Morales's testimony was  contradictory, untruthful, and material to the  issue of Santos's sentencing, he failed to  fulfill his part of the bargain, which allowed  the government to withdraw its sec.5K1.1  recommendation. Ramunno, 133 F.3d at 484. With no  "fair and just" reason to withdraw his guilty  plea, Morales's counsel reasonably decided not to  file the motion.9

D.  Roberto Febus

70
Roberto Febus's pro se appeal raises several  challenges to his conviction and sentence. He  first contends that a juror's post-verdict  statements prove that he was denied his Sixth  Amendment right to an impartial jury. He bases  his argument on a purported newspaper article  that reports statements by a juror that the  court's instructions confused her, and that other  jurors pressured her to vote for a guilty verdict  that she did not truly support. But Febus did not  make the article part of the record, so we cannot  consider it. See New Haven Inclusion Cases, 399  U.S. 392, 450 n. 66 (1970) (the court will not  consider newspaper articles that are not record  evidence). Moreover, even if we had the article,  it would be inadmissible under Federal Rule of  Evidence 606(b), which bars juror comments about  any internal influences on the jury's  deliberations. Fed. R. Evid. 606(b); see Tanner  v. United States, 483 U.S. 107, 121 (1987) (Rule  606(b) "is grounded in the common-law rule  against admission of jury testimony to impeach a  verdict and the exception for juror testimony  relating to extraneous influences."). Since the  juror's statements in this case only involved  internal deliberations, and alleged no extraneous  influences, this claim fails. United States v. Muthana, 60 F.3d 1217, 1223 (7th Cir. 1995).


71
Febus next argues that the district court erred  when it increased his offense level by four  points under sec. 3B1.1(a) of the Sentencing  Guidelines for being an "organizer or leader" of  the bolita. According to Febus, although he  served as the bolita's interim leader during the  late 1970's and early 1980's, he stopped running  it years before the offense of conviction (1989  to 1994), and thus his leadership activities were  not relevant conduct. The district court found,  however, that since the bolita was in continuous  operation from the 1960's to the 1990's, Febus's  leadership stint was relevant conduct to his  offense of conviction, and thus qualified him for  the sentencing enhancement.


72
"We review a district court's application of the  sentencing guidelines de novo but defer to the  court's finding of facts unless they are clearly  erroneous." United States v. Payton, 198 F.3d  980, 982 (7th Cir. 1999). Under sec. 3B1.1(a),  the district court may increase a defendant's  offense level by four points if the defendant  "was an organizer or leader" of a criminal  enterprise that involved five or more  participants. U.S.S.G. sec. 3B1.1(a).  Furthermore, "the sentencing court need not  confine itself to the offense of conviction but  may look to all relevant conduct within the scope  of U.S.S.G. sec. 1B1.3 (Relevant Conduct)."  United States v. Montague, 29 F.3d 317, 323 (7th  Cir. 1994). Relevant conduct includes "all acts  and omissions . . . that were part of the same  course of conduct or common scheme or plan as the  offense of conviction." United States v. Griffin,  194 F.3d 808, 826-27 (7th Cir. 1999); U.S.S.G.  sec. 1B1.3(a)(2).


73
In this case, the record demonstrates that: 1)  the bolita ran continuously from the 1960's until  1994; 2) Febus ran the Indiana operation in the  late 1970's and early 1980's; and 3) he also  allowed the bolita's runners to use his bar in  the 1990's as a collection site for betting slips  and money. Precisely because Febus's interim  leadership of the bolita was part of the illegal  lottery's continuous operation, his leadership  conduct was relevant to his offense of  conviction. Furthermore, because he was still  participating in the same bolita over a decade  later, he never abandoned the conspiracy. See  United States v. Patel, 879 F.2d 292, 294 (7th  Cir. 1989) (unless a conspirator affirmatively  abandons the conspiracy, he cannot limit his  responsibility for its consequences). Therefore,  the district court did not err in finding that  Febus's interim leadership of the bolita was  "relevant conduct" to his offense of conviction,  and thus qualified him for the sentence  enhancement.


74
Febus also asserts that the government violated  18 U.S.C. sec. 201(c)(2) by providing leniency  and money to government witnesses. This argument  was originally sanctioned, then rejected by the  Tenth Circuit. United States v. Singleton, 165  F.3d 1297 (10th Cir.) (en banc), cert. denied,  527 U.S. 1024 (1999). The government's grant of  leniency is not "a thing of value" under the  statute. United States v. Condon, 170 F.3d 687,  689 (7th Cir.), cert. denied, 119 S.Ct. 1784  (1999). And since "Section 201(c)(2) is a  criminal statute, not a private right of action  or a rule of evidence," it does not exclude  evidence or provide a basis for individual  remedies. Id. The record shows that the purpose  of the government's cash payments to two  witnesses was to cover their expenses, not to  purchase their testimony. And even in cases where  the government pays informants for their  testimony, we have held that such arrangements  "are not per se outrageous; rather the jury may  consider [them] as evidence relating to the  informant's credibility." United States v.  Miller, 891 F.2d 1265, 1268 (7th Cir. 1989).  Here, since the jury knew about the government's  payments to the witnesses, we have no reason to  disturb their verdict under sec. 201(c)(2).


75
Febus raises Sixth Amendment ineffective  assistance of counsel claims as well; since the  parties have briefed this issue, and we have the  record before us, we will resolve it. Reiswitz,  941 F.2d at 495. But arguing and resolving the  issue here precludes any subsequent challenge  under 28 U.S.C. sec. 2255.10


76
Febus contends that his counsel should have  asked Ken Eto (a government witness who narrowly  survived an assassination attempt in which he  sustained gunshot wounds to his head) about his  head wounds and whether he was fit to testify.  Eto was associated with organized crime in  Chicago where he ran the bolita's Illinois  operation until he became an informant for the  FBI in 1983 after the assassination attempt.  Febus's counsel cross-examined Eto, but declined  to ask him about his gunshot wounds and risk  opening the door for the government to inform the  jury about his participation in organized crime.  That was a reasonable strategy. See Kokoraleis v.  Gilmore, 131 F.3d 692, 696 (7th Cir. 1997).11

E.  Jose Santos

77
Jose Santos's appellate counsel seeks to  withdraw under Anders v. California, 386 U.S. 738  (1967), because he believes that there are no  nonfrivolous issues for appeal. Pursuant to  Circuit Rule 51(b), Santos filed a response to  counsel's motion. Because counsel's Anders brief  is adequate on its face, we consider only those  issues raised in the brief and Santos's response.  See United States v. Tabb, 125 F.3d 583, 584 (7th  Cir. 1997) (per curiam). And our "duty is merely  to determine whether counsel is correct in  believing those grounds frivolous." United States  v. Wagner, 103 F.3d 551, 553 (7th Cir. 1996).


78
Counsel first considers whether Santos could  argue that there was insufficient evidence to  support Santos's convictions for conspiracy, in  violation of 18 U.S.C. sec. 371, and for aiding  and abetting the bolita's operation, in violation  of 18 U.S.C. sec. 1955 and sec. 2. Santos "bears  an extremely heavy burden" on this issue, as we  will reverse a conviction only if "we determine  that no rational trier of fact could have found  the defendant guilty beyond a reasonable doubt."  Vega, 72 F.3d at 513. To establish a violation of  sec. 1955, the government must prove that Santos  "conducted" the bolita. United States v. Cyprian,  23 F.3d 1189, 1199 n. 14 (7th Cir. 1994) (citing  18 U.S.C. sec. 1955). To "conduct" means "to  perform any act, function or duty which is  necessary to or helpful in the ordinary operation  of the business, and . . . a person may be found  to conduct a gambling business even though he is  a mere servant or employee having no part in the  management or control of the business and no  share in the profits." Id. at 1199 n. 15 (quoting  United States v. Greco, 619 F.2d 635, 638 (7th  Cir. 1980)).


79
Jose Santos rented a bar called the "Poolroom,"  and allowed the bolita's operators (including his  brother Efrain Santos) to use the Poolroom as a  bolita collection site after another  bar/collection site was searched by authorities.  Therefore, the record demonstrates that Santos  knew that he was facilitating the bolita's  continued operation by allowing his bar to  function as a new collection site, and thus  counsel properly concluded that this argument  would be frivolous.


80
Counsel also considered whether Santos could  argue that the district court should have severed  Jose Santos from Efrain Santos under Fed. R. Crim.P. 14, or admonished the witnesses early in the  trial to specify when they were speaking about  Jose or Efrain Santos. Because Jose Santos's  trial counsel did not seek a severance, this  issue is reviewed for plain error only. United  States v. Wilson, 134 F.3d 855, 862-63 (7th Cir.  1998). According to the Supreme Court


81
We believe that, when defendants have been  properly joined under Rule 8(b), a district court  should grant a severance under Rule 14 only if  there is a serious risk that a joint trial would  compromise a specific right of one of the  defendants, or prevent the jury from making a  reliable judgment about guilt or innocence. Zafiro v. United States, 506 U.S. 534, 539  (1993).


82
Santos cites to no cases in which co-defendants  with the same last name required a severance, and  he does not specify any instances in the record  where he may have been prejudiced. We will not  scour the record "searching haystacks for  needles," Wagner, 103 F.3d at 553, to discover  specific testimony that supports Santos's  argument, and we agree with counsel's conclusion  that this argument is frivolous.


83
Finally, counsel considered whether Santos could  argue that the district court erred by refusing  to adjust Santos's sentence downward by two  points for being a minor participant in the  bolita under Guideline sec. 3B1.2(b). We lack  jurisdiction to review a district court's  discretionary refusal to depart downward unless  the sentence was imposed in violation of the law  or as a result of an incorrect application of the  sentencing guidelines. United States v. Yoon, 128  F.3d 515, 529 (7th Cir. 1997). In this case, the  district court's statements at the sentencing  hearing indicate that it knew it had authority to  depart, but decided, in its discretion, that  Santos "in no way" qualified for a downward  departure. Moreover, the record demonstrates that  Santos participated in the bolita in a  substantial way by knowingly providing his bar as  a collection center for the bolita's operations  in exchange for a monthly payment. We conclude,  therefore, that this argument is frivolous.  Accordingly, we grant counsel's motion to  withdraw and dismiss Jose Santos's appeal.


84
In conclusion, we AFFIRM the district court's  decisions by holding that: 1) there was  sufficient evidence to convict Efrain Santos of  money laundering, and thus his sentence was  proper; 2) the district court did not abuse its  discretion in denying Benedicto Diaz's motion to  withdraw his plea agreement; 3) Angel Morales was  not entitled to an interpreter under the Court  Interpreter's Act, and was not denied his Sixth  Amendment right to counsel or his right to the  effective assistance of counsel; and 4) Roberto  Febus was not denied his Sixth Amendment right to  an impartial jury or his right to the effective  assistance of counsel, and that his conviction  and sentence were proper. We also GRANT Jose  Santos's appellate counsel's motion to withdraw,  and we DISMISS Jose Santos's appeal.



Notes:


*
 Appeals No. 98-1252 and 98-2709 were submitted  for decision without oral argument.


1
 Jose Santos (Efrain Santos's brother)  participated in the bolita by allowing the  bolita's operators to use his bar (the  "Poolroom") as a new collection center for money  and betting slips after another collection site  was searched by authorities. The grand jury  returned a ten-count indictment against Jose  Santos, and he was convicted of Count 1  (conspiracy to conduct an illegal gambling  business, in violation of 18 U.S.C. sec. 371),  and Count 2 (aiding and abetting the conducting  of an illegal gambling business, in violation of  18 U.S.C. sec. 1955 and sec. 2). Jose Santos was  sentenced to 12 months on each count to serve  concurrently.
Jose Santos's appellate counsel filed an Anders  brief. For the sake of clarity (and because  Efrain Santos was the leader of the bolita, and  his trial and conviction took center stage in  this case) we will address Jose Santos's Anders  brief in Part E of this opinion only. All other  references to "Santos" in this opinion (other  than in Part E) refer to Efrain Santos.


2
 Santos also challenges his sentence, contending  that since his money laundering conviction cannot  stand, his base offense should be gambling and  not money laundering. Because we have determined  that Santos's conviction for money laundering was  correct, there was no sentencing error.


3
 The government files a sec.5K1.1 motion when "the  defendant has provided substantial assistance in  the investigation or prosecution of another  person who has committed an offense." U.S.S.G.  sec.5K1.1.


4
 At oral argument, Diaz contended that since this  examination took place after the government's  lengthy direct testimony, and cross-examination  by four defense lawyers, he became confused and  actually asserted that he never thought that it  was illegal to write "printer" on his tax form,  not that he lacked knowledge of the bolita's  illegality. In his brief, however, Diaz admits  that he testified that he did not know that the  bolita was illegal in 1993, and it is clear from  the complete transcript of his testimony, as well  as his later testimony at his sentencing hearing,  that in fact Diaz asserted at trial that he never  knew that the bolita was illegal.


5
 The record shows that Santos ran the bolita in  1984, and Morales does not dispute that fact on  appeal.


6
 For the same reasons, we reject Morales's claim  that the district court erred in granting the  government's motion to withdraw its sec.5K1.1  recommendation; because the claim is based on his  allegation that since his language barrier caused  the discrepancy in his testimony, he did not  breach his plea agreement by intentionally giving  false testimony.


7
 We acknowledge that Morales is not precluded as a  matter of law from raising his Sixth Amendment  challenge on direct appeal rather than upon  collateral attack. United States v. Madewell, 917  F.2d 301, 303-04 n.1 (7th Cir. 1990). But we note  that to raise this claim on direct appeal "is  often a disservice to the defendant because  resolution of this issue on appeal may preclude  the defendant from later developing a record and  presenting the issue in a proceeding pursuant to  28 U.S.C. sec. 2255." United States v. Lawson,  947 F.2d 849, 853 n.1 (7th Cir. 1991). We  consider these issues now because they have been  fully briefed and argued and neither defendant,  through the time of oral argument, has requested  that the issue be withdrawn.


8
 Morales also suggests that his counsel could have  protected him from his inconsistent testimony  (and thus preserved his sec.5K1.1 departure) by  quashing the government's subpoena, or by  appearing at Santos's sentencing hearing to  assert his Fifth Amendment privilege against  self-incrimination. But if Morales's counsel  pursued either strategy, Morales would have  forfeited his downward departure anyway, because  the government's obligation to recommend the  sec.5K1.1 motion was contingent upon Morales's  continued cooperation, and his "complete,  truthful and candid information and testimony."
Morales also asserts that his counsel was  ineffective by failing to provide him with an  interpreter at Santos's sentencing hearing. But  this claim fails because we have already  determined that the discrepancy in Morales's  testimony was not the result of any alleged  language barrier.


9
 And, contrary to Morales's position, the district  court could not grant him a downward departure  under sec.5K1.1 without the government's motion,  which remains an "essential prerequisite" for the  court's power to depart. United States v.  Santoyo, 146 F.3d 519, 523 (7th Cir. 1998).


10
 Supra, note 7.


11
 Febus's additional Sixth Amendment claims are  patently frivolous. First, he alleges that his  counsel was ineffective because he failed to  investigate whether the government violated sec.  201(c)(2) when it granted plea agreements to  Morales, Diaz, and another co-defendant named  McElroy in exchange for their testimony. But we  have already established that plea agreements are  not "a thing of value" under the statute, and  this claim fails. Condon, 170 F.3d at 689. He  also claims that his attorney was ineffective by  failing to present evidence (in the form of  certain affidavits that are not part of the  record) to show that he did not participate in  the bolita after 1981, and thus the court erred  by enhancing his sentence under sec. 3B1.1. But  we will not consider the affidavits (which also  contradict the facts in the record that bolita  runners used his bar in the early 1990's),  DeTomaso v. McGinnis, 970 F.2d 211, 214 (7th Cir.  1992); and we conclude that there was no  deficient performance. Febus also throws in a  conclusory statement that his counsel failed to  investigate the facts relating to the court's  enhancement of his sentence for obstruction of  justice. But because there is no evidence in the  record to support this argument, it fails as  well.
Febus's remaining argument--that the government  erroneously charged him with conspiracy under 18  U.S.C. sec. 371 because the statute only applies  to conspiracies against the government-- fails  because sec. 371 also prohibits conspiracies that  violate the laws of the United States, including  the illegal gambling statute, 18 U.S.C. sec.  1955. See United States v. Brandon, 17 F.3d 409,  422 (1st Cir. 1994).


