                          United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                      ___________

                                    No. 96-2786
                                    ___________

United States of America,                *
                                         *
             Appellee,                   *
                                         *
v.                                       * Appeal from the United States
                                         * District Court for the District of
James Franklin Rounsavall a/k/a          * Nebraska.
Frank Rounsavall,                        *
                                         *
             Appellant.                  *
                                    ___________

                              Submitted: January 14, 1997
                                  Filed: May 22, 1997
                                   ___________

Before LOKEN, BRIGHT and MORRIS SHEPPARD ARNOLD, Circuit Judges.
                           ___________

BRIGHT, Circuit Judge.


       James F. Rounsavall appeals his convictions and sentence for conspiracy to
distribute or possess with the intent to distribute methamphetamine, possession with the
intent to distribute methamphetamine and money laundering. He contends that the
Government failed to prove a single conspiracy as alleged in the indictment, that
testimony referring to his prior incarceration necessitated a mistrial, that the
Government offered insufficient evidence of money laundering, that he had no


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opportunity to challenge his prior convictions before the court imposed a life sentence,
and that his poor physical condition supported his motion to depart downward from the
statutory minimum sentence. We affirm the convictions and the sentence imposed by
the district court.1

I. BACKGROUND

        A jury convicted James Rounsavall of conspiracy to possess or possess with the
intent to distribute methamphetamine, two counts of distributing methamphetamine and
two counts of money laundering. We summarize the evidence in the light most
favorable to the jury’s verdicts.

       The Government offered evidence that James Rounsavall supplied
methamphetamine to his sister, Mary Ann Rounsavall, who supplied it to Deana
Weniger. Weniger then distributed it to various customers in South Dakota and
Nebraska beginning in 1986 or 1987. Later, Mary Ann Rounsavall began supplying
a different distributor, Mary Jean Whitefoot, instead of Weniger. After Whitefoot’s
death, Clyde and Mary Rasmusson became distributors. Finally, James Rounsavall
began supplying Laura Figaszewski with methamphetamine to sell to the Rasmussons
for distribution after his sister went to prison in 1990.

       Mary Ann Rounsavall also owned the Tahquitz Fine Art store. Although James
Rounsavall never declared an ownership interest or income from the store, the Tahquitz
checking account listed him as having signature rights to the account. The
government’s evidence showed that the Rounsavalls disguised proceeds from drug
sales by depositing them into the Tahquitz account as proceeds from art sales.




       1
       The Honorable Richard G. Kopf, United States District Judge for the District of
Nebraska.

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      In 1991, James Rounsavall closed the Tahquitz account by writing a check in the
amount of $107,420.49 to purchase two cashier’s checks: one to Andrew Fakas in the
amount of $101,748.77 and another to Mary Ann Rounsavall for the remaining
$5,671.72. James Rounsavall used the first cashier’s check to purchase real estate
from Fakas. In 1994, James Rounsavall deeded the property to Matthew Kurilich
allegedly in consideration for forgiveness of a past debt of $200,000.

       James Rounsavall’s convictions resulted after the district court declared two
mistrials in previous trials. In the first trial, in which the government prosecuted James
Rounsavall and his sister, the district court declared a mistrial during the first full day
of evidence because a government witness violated the court’s motion-in-limine ruling
excluding evidence of James Rounsavall’s prior incarceration. The court reasoned that
the statement justified a mistrial because it occurred very early in the presentation of
evidence, was quite prejudicial and the witness’s prior failed romantic relationship with
James Rounsavall might have motivated her testimony about his incarceration. In the
second trial, Mary Ann Rounsavall, a co-defendant, pled guilty after the district court
declared the second mistrial as to the case against James Rounsavall. James
Rounsavall had become seriously ill with bilateral pneumonia and required
hospitalization.

       On the sixth day of the third trial, in which James Rounsavall was the sole
defendant, Mary Ann Rounsavall testified for the government. The government
instructed her not to testify about James Rounsavall’s previous incarceration and
informed her about the district court’s motion-in-limine ruling. Nevertheless, during
the defense counsel’s cross-examination, Mary Ann Rounsavall testified that she lived
with her brother “[w]hen he got out of prison.” Defense counsel moved for another
mistrial. The district court immediately instructed the jury to disregard the witness’s
remark and denied the motion for a mistrial. Later, the district court offered to give the
jury further cautionary instructions, but the defense counsel declined.


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       The jury convicted James Rounsavall and the district court denied his motion to
depart below the statutory minimum based on poor physical health. Accordingly, the
district court imposed the statutorily required life sentence. This appeal followed.
II. DISCUSSION

       James Rounsavall makes five arguments on appeal: (1) the Government’s
evidence reflected multiple conspiracies rather than a single conspiracy, as alleged in
the indictment, (2) a witness’s reference to his prior incarceration required a mistrial,
(3) there was insufficient evidence to support his convictions for money laundering, (4)
the district court imposed a life sentence without providing an opportunity to challenge
his prior convictions, and (5) the district court mistakenly refused to depart below the
statutory minimum based on his physical condition. We consider each argument in
turn.
                                             A.

        According to Rounsavall, the evidence at trial demonstrated several conspiracies
with different individuals participating at different times. Thus, he argues that the
Government’s evidence failed to support a conviction for a single conspiracy as alleged
in the indictment. We determine whether multiple conspiracies existed by viewing the
evidence in the light most favorable to the jury’s verdict. United States v. Cabbell, 35
F.3d 1255, 1262 (8th Cir. 1994). Accordingly, we consider the totality of the
circumstances, “including the nature of the activities involved, the location where the
alleged events of the conspiracy took place, the identity of the conspirators involved
and the time frame in which the acts occurred.” United States v. Bascope-Zurita, 68
F.3d 1057, 1061 (8th Cir. 1995), cert. denied, 116 S. Ct. 741 (1996). “A single
conspiracy may be found when the defendants share a common overall goal and the
same method is used to achieve that goal, even if the actors are not always the same.”
Id.




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       The evidence in this case, including the testimony of Rounsavall’s co-
conspirators, supports the jury’s conclusion that he remained the supplier of
methamphetamine while other members of the conspiracy merely replaced one another.
The conspiracy maintained its common, overall goal of distributing methamphetamine
supplied by Rounsavall. “Although various defendants entered the conspiracy at
different times and performed different functions, the conspiracy had one criminal
objective: to sell large quantities of methamphetamine . . . .” United States v. Baker,
855 F.2d 1353, 1357 (8th Cir. 1988). Accordingly, we affirm the conspiracy
conviction.

                                           B.

       James Rounsavall also argues that the district court erroneously denied his
motion for a new trial after a government witness made an improper statement. During
cross-examination by the defense, Mary Ann Rounsavall stated that she lived with her
brother “[w]hen he got out of prison.” Tr. 1003:3-5. This statement violated the
district court’s prior ruling to exclude evidence of James Rounsavall’s prior
incarceration. Defense counsel unsuccessfully requested a mistrial immediately after
the statement, as well as after the government’s case and at the close of all the
evidence.

        The decision whether to grant a new trial lies within the discretion of the trial
court and we review only for an abuse of discretion. United States v. Flores, 73 F.3d
826, 831 (8th Cir.), cert. denied, 116 S. Ct. 2568 (1996). We determine the prejudicial
effect of any improper testimony on a defendant’s right to a fair trial by examining the
trial context of the error and the prejudice it created with the strength of the evidence
against the defendant. Id. at 832. In some cases a curative instruction suffices to
correct a prejudicial statement. Id. at 831.




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         In this case, the district court concluded that the improper testimony failed to
justify a mistrial. R. at 33. The witness made the improper statement after six days of
trial testimony that included “overwhelming” evidence of Rounsavall’s guilt. Id. at 37.
The district court also noted that the statement occurred during cross- examination by
defense counsel, id. at 33; that the prosecution never elicited, repeated or discussed the
remark, id. at 34; and that the witness had no motive to hurt the defendant. Id. at 42.
In addition, the jury received immediate and appropriate instructions to disregard the
improper statement. Id. at 34. The district court also offered to give similar jury
instructions at the close of the prosecution’s evidence and at the end of trial, but
defense counsel declined. Id. at 35.

      We conclude that the district court properly considered whether the statement
jeopardized Rounsavall’s right to a fair trial and did not abuse its discretion by denying
his motion for a mistrial.

                                           C.

        Rounsavall next argues that the Government failed to offer sufficient evidence
to support his convictions for two counts of money laundering. He asserts that the
Government failed to offer evidence that he knew the transactions at issue were
designed to conceal the ownership or nature of the drug proceeds and, therefore, the
district court erred by denying his motions for judgment of acquittal.

       To determine whether sufficient evidence supports a conviction, “We consider
the evidence in the light most favorable to the government and reverse only ‘if no
reasonable jury could have found the defendant guilty beyond a reasonable doubt.’”
United States v. Taylor, 82 F.3d 200, 201 (8th Cir. 1996) (quoting United States v.
Roach, 28 F.3d 729, 736 (8th Cir. 1994)). In order to convict Rounsavall of either
count of money laundering, the Government must show beyond a reasonable doubt that
(1) Rounsavall purchased the property in question, (2) the purchase involved the

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proceeds of the illegal drug sales, (3) Rounsavall knew that the property represented
the proceeds of the illegal drug sales, and (4) Rounsavall knew that the purchase was
designed to conceal the nature, ownership, source, or control of the proceeds of the
drug sales. See United States v. Rockelman, 49 F.3d 418, 422 (8th Cir. 1995) (citing
18 U.S.C. § 1956(a)(1)(B)(I)). “'[T]he purpose of the money laundering statute is to
reach commercial transactions intended (at least in part) to disguise the relationship of
the item purchased with the person providing the proceeds and that the proceeds used
to make the purchase were obtained from illegal activities.'” Id. (quoting United States
v. Sanders, 928 F.2d 940, 946 (10th Cir.), cert. denied, 502 U.S. 845 (1991)).

       The money laundering statute’s scope includes “the purchase, sale or disposition
of any kind of property as long as the disposition involves a monetary instrument.”
United States v. Blackman, 904 F.2d 1250, 1257 (8th Cir. 1990). The statute explicitly
applies to deposits and withdrawals from a bank account, and purchasing or selling real
estate. 18 U.S.C. § 1956 (a)(1)(c)(3-4). This court stated, “[A] deposit of money in
a bank and the subsequent use of that money to purchase a house are two transactions
within the scope of the statute.” Blackman, 904 F.2d at 1257.

       In this case, the Government offered evidence that Rounsavall deposited drug
proceeds into the Tahquitz account and claimed they were proceeds from art sales. By
writing a check on the account to purchase the two cashier’s checks, Rounsavall
violated the money laundering statute because the check represented drug proceeds
disguised as art proceeds. The Government also offered evidence that Rounsavall used
the disguised drug proceeds to purchase real estate, which he later sold to Matthew
Kurilich. When Rounsavall sold the real estate, which represented the drug proceeds
used to purchase the property, the violation continued. Although Rounsavall never
attempted to conceal his identity or ownership of the property, the transactions violated
the money laundering statute because he initially disguised the proceeds from drug
sales as proceeds from art sales. Accordingly, we affirm the money laundering
convictions.

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                                                D.

       Rounsavall contends that the district court erroneously imposed a life
imprisonment sentence without inquiring whether he denied his prior convictions and
informing him of the right to challenge those convictions as required by 21 U.S.C. §
851(b). The Government argues that any error was harmless because 21 U.S.C. §
851(e) precluded Rounsavall from challenging his prior convictions because they
occurred more than five years ago. In addition, the Government argues that Rounsavall
failed to show prejudice from the error because he did not identify which of his prior
convictions he would challenge and on what grounds he would challenge them if given
the opportunity.
       Section 851(b) requires the district court to inquire whether the defendant affirms
or denies his prior convictions. “All courts of appeals which have considered the
question presently hold that failure to engage in the colloquy required by section 851(b)
is subject to ‘harmless error’ analysis.” United States v. Romero-Carrion, 54 F.3d 15,
18 (1st Cir. 1995). Without statutory authority, a defendant cannot collaterally attack
prior convictions used to enhance his sentence. Custis v. United States, 114 S. Ct.
1732, 1734 (1994). The Court, however, excluded challenges to prior convictions
obtained in violation of the right to appointed counsel from this general rule.2 Id.
Although § 851 allows a defendant to attack a prior conviction, 21 U.S.C. § 851(c), it
also precludes challenges to convictions “which occurred more than five years before
the date of the information alleging such prior conviction.” 21 U.S.C. § 851(e).

      Because Rounsavall’s prior convictions occurred more than five years ago, see
Presentence Report ¶¶ 52-54, and he does not contend that he was denied the right to




       2
        The Supreme Court distinguished ineffective assistance of counsel claims from denial of
counsel claims, and excluded only the latter from the general rule against collaterally attacking
prior convictions used to enhance a sentence. Custis, 114 S. Ct. at 1738.

                                                8
counsel, see Appellant’s Br. at 21 (suggesting challenges based on eighth amendment
and ineffective assistance of counsel), the district court’s error was harmless.
Accordingly, we affirm the life imprisonment sentence imposed by the district court.

                                               E.

       Finally, Rounsavall contends that the district court erroneously denied his motion
to depart from the statutory mandatory minimum sentence due to poor physical
condition. This court recently held that “a motion by the government . . . for substantial
assistance was ‘the only authority for [a] district court to depart below the statutorily
mandated minimum sentence. . . .’” United States v. Rabins, 63 F.3d 721, 727 (8th
Cir. 1995) (quoting United States v. Rodriguez-Morales, 958 F.2d 1441, 1444 (8th Cir.
1992)), cert. denied, 116 S. Ct. 1031 (1996). No authority exists for a sentencing court
to depart from a statutory minimum sentence based on the defendant’s physical
condition. Id. at 727 & n.10 (noting that 18 U.S.C. § 3553(f), enacted after
Rodriguez-Morales, allows for departures under specified circumstances, but does not
include physical impairment as ground for departure). Accordingly, we affirm the
district court’s refusal to depart below the statutory minimum sentence.3


III. CONCLUSION

      For the reasons discussed above, we affirm Rounsavall’s convictions and the
sentence imposed by the district court.




       3
        Physical condition ought to be a consideration in sentencing. Serious illness may very
well bear on whether a defendant might commit other crimes. Further, it is a waste of prison
resources and taxpayers’ money to imprison seriously ill persons for long periods of time when
such imprisonment means hospital and medical care at government expense.

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A true copy.


      Attest:


               CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.




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