                IN THE UNITED STATES COURT OF APPEALS
                        FOR THE FIFTH CIRCUIT
                                            _______________

                                              No. 98-10110
                                            _______________

                               UNITED STATES OF AMERICA,
                                                               Plaintiff-Appellee,
                                                 VERSUS

ROBERTO ROBLES, ARTURO HERRERA, and ARTURO GURRUSQUIETTA,
                                                               Defendants-Appellants.
                                     _________________________

                             Appeals from the United States District Court
                                  for the Northern District of Texas
                                         (3:97-CR-158-16-P)
                                   _________________________

                                             August 26, 1999

Before JOLLY and SMITH, Circuit Judges                    For some time, government agents had
  and VANCE, District Judge*                           been gathering evidence about a substantial
                                                       conspiracy in the Dallas area to distribute
JERRY E. SMITH, Circuit Judge:**                       marihuana imported from Mexico. Through
                                                       the testimony of co-conspirators and law
   Roberto Robles, Arturo Herrera, and                 enforcement agents, and based on physical
Arturo Gurrusquietta were convicted under              evidence obtained during government searches
21 U.S.C. § 846 and 18 U.S.C. § 834(b) of              and surveillance, the government established
marihuana distribution and using a                     that the conspiracy was run by the de la Torre
communications device to facilitate a drug             family.
crime. Robles and Herrera were convicted
under 18 U.S.C. § 1956 for money laundering.                                 1.
We affirm except for Gurrusquietta’s sentence,
which we remand for resentencing.

                        I.
                        A.


        *
          District Judge of the Eastern District of
Louisiana, sitting by designation.
        **
           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has determined that this opinion should not be
published and is not precedent except under the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.
   Miguel de la Torre, an indicted co-                 his organization. Identifying Robles in the
conspirator who pleaded guilty before trial,           courtroom, Miguel explained that Robles
testified that he headed a marihuana trafficking       collected money and weighed marihuana.
organization based in Dallas. Someone in               Robles began working for the organization in
Dallas would send money to a runner in                 April 1997, after his brother was arrested.
Mexico, who would arrange to buy the
marihuana and package it for shipment over                Robles’s duties included repackaging large
the border. Once the marihuana reached                 bundles of marihuana into one pound units for
Laredo, Texas, one of three men in de la               resale. He also collected money owed to
Torre’s organization would receive the                 Miguel for marihuana, sometimes on his own
marihuana and transfer it to Irving, Texas,            and sometimes with Miguel. Again, the
where it was stored at de la Torre’s stash             government provided recorded telephone
house.                                                 conversations between Miguel and Robles,
                                                       establishing that Miguel gave instructions to
   Miguel paid the runner in Mexico to                 Robles about money he needed to collect and
arrange the purchase and would pay the                 marihuana that needed to be packaged.
person who arranged the border crossing and
would pay his three agents in Laredo to                   Miguel also testified about the role Herrera
transport the marihuana from the border to             played in the drug organization. Concerned
Dallas. He usually used one of three                   about police surveillance, Miguel contacted
companies, Western Union, Tex-Mex                      Herrera and asked him to see whether the
Transfer, and Alas International, to pay the           police were investigating him. He told Herrera
members of his organization. At trial, he              that he was dealing marihuana and that he
identified a number of receipts showing                thought he was being followed.
transfers of money for purposes of buying and
distributing marihuana.                                   Herrera told Miguel that he knew of
                                                       narcotics officers he could pay to protect
   When he had difficulty receiving his                Miguel. He suggested that Miguel pay off
marihuana from Mexico, Miguel testified that           four narcotics officers at $3,000 a month.
he would purchase marihuana from other                 After speaking with Herrera, Miguel testified
sources. In particular, he identified appellant        that he did pay Herrera about $3,000.
Gurrusquietta and his brother Juan as two of
his backup suppliers. He testified that in                Again, the government offered recorded
March 1997, he made purchases of both 30               telephone conversations that confirm Miguel’s
pounds and 100 pounds of marihuana from                testimony. In one conversation, Miguel gave
Arturo Gurrusquietta. The third purchase,              his address, date of birth, and full name to
consisting of 110 pounds, occurred in April            Herrera so that Herrera could find out whether
1997.                                                  Miguel was the target of surveillance. In
                                                       another conversation, Herrera told Miguel the
   In the course of these transactions, Miguel         results of his search and informed Miguel that
had numerous telephone conversations with              people Miguel did business with were under
both Gurrusquietta brothers. The government            investigation, and that one of these people was
recorded a number of these conversations and           informing the police. In other conversations,
played them at trial. The taped conversations          Herrera continued to assure Miguel that if he
established that Arturo and Miguel discussed           paid for protection, he would avoid arrest.
amounts of marihuana available for purchase,
the return of bad marihuana, packaging and                 Carmela de la Torre also testified,
shipment problems for the marihuana, the               corroborating much of Miguel’s testimony.
price, and the payment of money for the                She stated that she was familiar with many of
marihuana.                                             the participants in the organization, and she
                                                       identified Herrera in the courtroom. When
   Miguel also testified that Robles worked for        listening to taped telephone conversations,

                                                   2
Carmela identified Herrera’s voice and was                   The FBI agents participated in the search
heard discussing terms of their police                    and found the gym bag, three cellular
protection payments with him. She also                    telephones, and tax returns in the car. Inside
testified that Miguel would tell her about how            the gym bag, the searchers found $43,000
Robles worked for the organization by                     bundled in rubber bands and wrapped in
collecting money and packaging marihuana.1                aluminum foil and a loaded handgun.
                                                          McSwain testified that the packaging of the
                       2.                                 money was typical for drug money and that the
   The government presented evidence                      cell phones found the vehicle matched numbers
describing its surveillance of the de la Torre            called by members of the de la Torre
organization. In particular, DEA agent Joe                organization. Additionally, the search turned
Rodriguez explained how he followed a                     up tax returns for both Gurrusquietta’s.
shipment of marihuana from the border to the              Arturo Gurrusquietta showed a taxable income
de la Torre “stash house” in Angelina, Texas.             of $14,192. This tax return would later prove
After a lawful search, the agents arrested                significant in Arturo Gurrusquietta’s money
Aguirre (Carmela’s boyfriend), Miguel de la               laundering charge.2
Torre, and another co-conspirator at the
Angelina location.

   To link Arturo Gurrusquietta to the de la
Torre organization, the government presented
Agent John McSwain, who testified that
agents found out, through their wiretap, that a
drug transaction would take place on April 8
at the de la Torre residence. They put the
house under surveillance and observed the
arrival and then departure of a black Mustang.
They followed the Mustang to another house
and observed a man later identified as Arturo
Gurrusquietta remove a gym bag from the
Mustang and place it on the porch. A few
minutes later, a silver LeBaron driven by a
man later identified as Juan Gurrusquietta
arrived. Taking the gym bag and a cellular
telephone, Arturo Gurrusquietta got in the
LeBaron and drove away.

   McSwain and other FBI agents followed
the LeBaron on a highway. They contacted
two Texas Department of Public Safety
officers and asked them to conduct a traffic
stop. They informed the officers of their
observations and that they had reason to
believe narcotics were in the vehicle. The
officers conducted a traffic stop based on the
LeBaron’s abrupt lane change, then obtained
consent to search the vehicle.
                                                                  2
                                                                     Arturo Gurrusquietta moved to exclude
                                                          the evidence obtained during this search as
                                                          unsupported by probable cause. Without holding
       1
          The court overruled Robles's objection to       a hearing, the court reviewed the search in camera
this testimony as inadmissible hearsay.                   and denied the motion.

                                                      3
   Officer Joseph Emmett testified that he               charged with conspiracy to commit money
knew Herrera because they worked at the                  laundering in violation of 18 U.S.C. § 1956(h).
same school. Herrera asked him to check for
the names of people for outstanding warrants.               A jury found all three appellants guilty of
Despite being turned down, Herrera continued             the drug conspiracy charges. Robles and
to ask Emmett to check on names.                         Gurrusquietta were also convicted of one
                                                         count, and Herrera was convicted of three
   Much of the government’s case depended                counts, of using a communication device to
on wiretap and physical evidence. Agent                  facilitate drug trafficking.    Herrera and
Arturo Canedo, fluent in Spanish, testified that         Gurrusquietta were convicted on their money
he listened to all the tapes made in the                 laundering counts, and Gurrusquietta was
wiretaps and translated them into English. He            convicted on his conspiracy to commit money
described how the agents would try to identify           laundering count. Herrera, however, was
voices based on the conversations and the                acquitted of his accessory to possession of
numbers from which the calls originated.                 marihuana count.
Other agents testified that they seized drug
papers, money transfer receipts, scales, and                                    II.
other drug paraphernalia during warrant                     Robles and Herrera (but not Gurrusquietta)
searches of seven different locations. A                 attack the sufficiency of the evidence for their
number of witnesses testified as custodians of           drug conspiracy convictions; Robles and
telephone, pen register, wire transfer, shipping,        Herrera challenge the sufficiency of the
and pager records.3                                      evidence for their use of a communication
                                                         device convictions. Herrera challenges the
                      B.                                 sufficiency of the evidence for his money
   Thirty-one defendants were indicted for               laundering conviction, and Gurrusquietta
conspiracy to import and distribute marihuana            makes a similar challenge to his conspiracy to
in violation of 21 U.S.C. § 846. None of the             launder money conviction (but not his
appellants was charged in the second count.              substantive money laundering convictions).
Subsequently, the indictment was twice
superseded; the last superseding indictment                 Appellants also allege that several errors
charged only twenty-one defendants and                   were made at trial. Robles makes several
maintained basic conspiracy charges against all          evidentiary challenges, arguing that Carmela’s
three appellants. Additionally, Robles and               testimony relating Miguel’s description of
Gurrusquietta were charged with one count,               Robles’s role was inadmissible hearsay and
and Herrera was charged with three counts, of            that (2) pen register and wiretap records did
using a communication device to facilitate a             not qualify for the business records exception
drug-trafficking crime in violation of                   to the hearsay rule. He also objects that the
18 U.S.C. § 834(b).                                      prosecutor’s statement of personal belief in
                                                         Robles’s guilt prejudiced his trial.
   Herrera was also charged with one count of
accessory after the fact to possession with                 Herrera attacks the district court’s refusal
intent to distribute marihuana in violation of           to sever his trial from the co-defendants’. He
18 U.S.C. § 3. Herrera was charged with one              also alleges error occurred when the court
count, and Gurrusquietta was charged with                refused to allow him to call certain witnesses
two counts, of money laundering in violation             and to cross-examine certain government
of 18 U.S.C. § 1956. Gurrusquietta was also              witnesses. Relatedly, Herrera attacks his trial
                                                         counsel for allegedly rendering ineffective
                                                         assistance by failing to move for a judgment
        3
           Robles challenges the admission of this       of acquittal at the close of evidence.
evidence under the business records exception to         Gurrusquietta argues that the court reversibly
the hearsay rule, arguing that the government laid       erred in failing to suppress evidence obtained
insufficient foundation.                                 during the April 8, 1997, traffic stop, because

                                                     4
the warrantless search was not supported by                                        1.
probable cause.                                               To convict of conspiracy under § 846, the
                                                           government must prove beyond a reasonable
    Robles and Gurrusquietta challenge their               doubt (1) the existence of an agreement
sentences. Robles argues that the court clearly            between two or more persons to violate a
erred when it enhanced his sentence for use of             federal drug statute; (2) that each conspirator
a firearm and attributed 1,000 pounds of                   knew of the conspiracy; (3) that each
marihuana to him. Gurrusquietta points out                 conspirator intended to join the conspiracy;
that there is no evidence that he was involved             and (4) that each conspirator did participate in
in the distribution of the 1,000 kilograms                 the conspiracy. United States v. Ramirez, 145
attributed to him.                                         F.3d 345, 350 (5th Cir. 1998).             The
                                                           government must prove more than knowledge
    We affirm the sufficiency of the evidence              of a conspiracy or association with
for all of the convictions and affirm all the trial        conspirators. United States v. Grassi, 616
rulings. We dismiss, without prejudice,                    F.2d 1295, 1301 (5th Cir. 1980). When
Herrera’s claim of ineffective assistance of               combined with other circumstantial evidence,
counsel. We affirm Robles’s sentencing                     knowledge and association may be used to
enhancements, but we reverse and remand the                prove an agreement to join a conspiracy. Id.
calculation of the amounts of marihuana                    at 1301-02. Additionally, the government is
attributed to Gurrusquietta.                               not required to prove knowledge of all details
                                                           of the conspiracy or each of its members,
                        A.                                 provided that the defendant has knowledge of
   When reviewing a challenge to the                       the essentials of the conspiracy. United States
sufficiency of the evidence, we review the                 v. Alvarez, 625 F.2d 1196, 1198 (5th Cir.
evidence and all inferences reasonably drawn               1980). An agreement may be inferred from a
from it in the light most favorable to the                 “concert of action,” voluntary participation
verdict. Glasser v. United States, 315 U.S. 60             may be inferred from a “collocation of
(1942). The conviction must be affirmed if                 circumstances,” and knowledge may be
any rational trier of fact could have found the            inferred from “surrounding circumstances.”
essential elements of the charged offense                  Espinoza-Seanez, 862 F.2d 526, 537 (5th Cir.
beyond a reasonable doubt. Jackson v.                      1988).
Virginia, 443 U.S. 307 (1979).4
                                                              To establish a violation of using a
                                                           communication device to facilitate a drug
          4
             Robles also invites us to review for          felony, the government must prove: (1)
factual insufficiency under Tibbs v. Florida, 457          knowing and intentional (2) use of a telephone
U.S. 31, 37 (1982). Under a review for factual
insufficiency, we may reverse if we find the jury’s
verdict against the great weight of the evidence. In       (...continued)
this case, we “sit[] as a ‘thirteenth juror’ and           CRIM. P. 33, which permits a district court to set
disagree[] with the jury’s resolution of the               aside a conviction that is against the weight of the
conflicting testimony.” Id. at 42. We may reverse          evidence. See United States v. Robertson,
for a new trial if the government is free to seek          110 F.3d 1113, 1118 (5th Cir. 1997). We review
another conviction and the defendant may again             such determinations only for abuse of discretion.
seek acquittal. In Tibbs, the Court reviewed a state       See United States v. Lopez, 803 F.2d 969, 977
court proceeding in which the courts had                   (9th Cir. 1986).
unambiguous authority to grant a new trial for
verdicts going against the great weight of the                Such error, however, must be preserved by a
evidence.                                                  motion for a new trial. Because we find the
                                                           evidence supporting Robles’s conviction both
   The authority for federal courts to reverse for         legally and factually sufficient, we do not have to
factual insufficiency, however, is based on FED. R.        consider whether he sufficiently preserved error to
                           (continued...)                  be entitled to this level of review.

                                                       5
(3) to facilitate a drug felony. United States v.       conspiracy, including collecting money,
Dixon, 132 F.3d 192, 200 (5th Cir. 1997).               repackaging the marihuana for sale, and
Because the evidence supporting the                     finding an adequate stash house. The evidence
sufficiency of the drug conspiracy convictions          is sufficient whether we review for legal or
is almost identical to the evidence supporting          factual sufficiency. Therefore, we affirm
these communication device convictions, we              Robles’s conviction of conspiring to distribute
will examine these sufficiency challenges               in violation of § 846 and of using a
together.                                               communication device to facilitate a drug
                                                        crime in violation of § 834(b).
                        a.
   Robles asserts that the evidence only                                        b.
supports his mere “presence and association”                                   (i)
with Miguel de la Torre, but not that he agreed            Because Herrera failed to move for
to join Miguel’s drug trafficking conspiracy.           acquittal at the close of evidence, he did not
Instead, he claims that he and Miguel spent             preserve his objection to sufficiency of the
time together socially for the purpose of dating        evidence, so we review only for plain error.
women. Even though Miguel testified that                We may find plain error “only when the
Robles “worked for him,” he also stated that            appellant shows that (1) there is an error, (2)
Robles would often wait outside when Miguel             the error is plain, and (3) the error affects her
went to collect money. Therefore, Robles                substantial rights.” United States v. Ravitch,
argues that he never agreed with Miguel that            128 F.3d 865, 869 (5th Cir. 1997) (citing
he would work for him or with the                       United States v. Olano, 507 U.S. 725, 732
organization for the overall objective of               (1993). Even if we find such an error,
distributing and selling marihuana.                     however, we will not “exercise [our] discretion
                                                        to correct such error[] unless the error
    Robles’s argument is unpersuasive. Miguel           seriously affects the fairness, integrity, or
testified that Robles would collect money and           public reputation of judicial proceedings.” Id.
repackage marihuana on behalf of the
organization.         Miguel’s testimony is                “Error is defined as a deviation from a legal
corroborated by recorded conversations                  rule in the absence of a valid waiver.” United
between Robles and Miguel discussing                    States v. Calverley, 37 F.3d 160, 162 (5th Cir.
problems with repackaging, collecting money,            1994) (en banc). “Plain is synonymous with
and even the problems of locating a new stash           ‘clear’ or ‘obvious’ and ‘at a minimum’
house. Carmela’s testimony also corroborated            contemplates an error which was ‘clear under
Miguel’s testimony by confirming that Robles            current law’ at the time of the trial.” Id.
worked for Miguel by collecting money for the           Finally, “affecting substantial rights” is
organization. Robles has offered no basis to            understood to mean that the error “must affect
disbelieve Miguel’s and Carmela’s testimony             the outcome of the proceeding.” Id. at 164.
as “incredible,” and basic credibility judgments
are left to the jury. Even though Robles’s role                               (ii)
in the conspiracy is relatively minor, he can be           Essentially, Herrera claims that he acted
held liable for it once it is shown he has              only to dupe the de la Torre organization into
voluntarily agreed to participate. United               paying him money for police protection.
States v. Gonzales, 866 F.2d 781, 788 (5th              There is no evidence that Herrera transported,
Cir. 1989).                                             sold, distributed, or bought any marihuana.
                                                        The only evidence of his involvement consists
   For similar reasons, Robles cannot claim             of taped telephone conversations in which
that he did not know that he was using a                Herrera told Miguel that the police had
communication device to facilitate a drug               marked an “X” on the location of his house
crime.     Numerous recorded telephone                  and in which he asked for money to bribe
conversations showed that he spoke to Miguel            police officers.
and Carmela about matters at the heart of the

                                                    6
   Because there is no evidence that Herrera              Herrera’s situation is not exactly analogous.
actually acted to gain police protection for the       While there is no evidence that he knew the
de la Torres, he argues that there is no               details or extent of the de la Torre conspiracy,
evidence he intended to join the drug                  there is evidence that he knew enough about
conspiracy by paying off police officers or that       their activities to know they would want police
he actually paid any bribes that would                 protection. Therefore, unlike the situation in
constitute participation in the conspiracy.            the “lookout cases” cited by Herrera, there is
There is no evidence that Herrera was even in          no question that he knew the nature and
the position to pay bribes to police officers.         purpose of the de la Torre conspiracy and that
                                                       there was sufficient evidence to support the
    Herrera does not contest the evidence              “knowledge” element of his conspiracy
supporting the first element for a conspiracy          conviction. By asking for (over the telephone)
conviction: There is overwhelming evidence             and accepting money to protect that
that a conspiracy to distribute marihuana              conspiracy, Herrera can be inferred to have
existed. Instead, he focuses his assaults on the       known he was taking money from an illegal
last three elements: knowledge of the                  drug conspiracy.
conspiracy, intention to join the conspiracy,                                 (b)
and participation in the conspiracy. He argues            Miguel and Carmela testified that they
that the court committed plain error in regard         believed Herrera was providing them with
to each of these latter three elements.                protection from the police through bribes.
                                                       Additionally, the government offered the
                      (a)                              testimony of a Dallas police officer who
    Herrera asserts that his minimal role in the       recounted Herrera’s efforts to get him to
conspiracy is akin to that of a passive                search for names of people under
“lookout,” and he points us to cases in which          investigation. The jury reasonably could have
we found insufficient evidence to support              inferred that Herrera did intend to pay bribes
conspiracy convictions for alleged “lookouts.”         or otherwise provide protection to the de la
For instance, we have refused to infer                 Torre organization by finding out whether
participation in a conspiracy by a defendant           members of the organization were targets of
who joined conspirators at a restaurant and            police investigations. Therefore, under plain
“seemed very watchful of the comings and               error review, the government has provided
goings in the restaurant, turning his head from        sufficient evidence to support the “intention”
left to right.” United States v. Jackson, 700          element of a conspiracy conviction.
F.2d 163, 184 (5th Cir. 1983). “Without
evidence that he knew the nature or purpose of
the meeting or even that a large amount of                                     (c)
money was present,” we reversed the                       Herrera has a better argument when he
conviction. Id. at 185.                                asserts that there is no evidence of some
                                                       further act by him (i.e., paying bribes) to
                                                       satisfy the “participation” element of a
                                                       conspiracy conviction. While the evidence
                                                       establishes that Herrera asked for (over the
                                                       telephone) and received money that he said
                                                       would be used to bribe officers, he maintains
                                                       that the utter lack of evidence that he acted to
                                                       do anything means that the “participation”
                                                       element is not supportable.

                                                          Perhaps recognizing the force of this
                                                       argument, the government claims that merely
                                                       accepting the money and promising to provide
                                                       police protection gave the conspirators a

                                                   7
“sense of safety.” By aiding the conspiracy in           (4) with the intent to conceal the nature,
this way, the government claims, Herrera                 location, source, ownership or control of the
“participated” in a way that satisfies the fourth        proceeds. United States v. Garza, 118 F.3d
element of the conspiracy statute.                       278, 284 (5th Cir. 1997). The government
                                                         argues that Herrera’s actions meet these
   Irrespective of the validity of this argument,        requirements.          First, the recorded
and even though there was not substantial                conversations support the inference that
evidence regarding Herrera's bribery attempts,           Herrera accepted $3,000 from the de la Torre
there was ample evidence from which the jury             organization, thereby fulfilling the “financial
could infer that he actually had tried to find           transaction” element.              Second, the
out whether Miguel was under investigation.              conversations revealed that Herrera knew
Officer Joseph Emmett testified that Herrera             about the de la Torre organization’s illegal
attempted to enlist his aid in identifying police        drug trafficking activities, and the jury could
surveillance targets. Emmett explained that              have inferred from these conversations that
Herrera would ask him a couple times a week              Herrera realized any money he received would
to check police records for certain names and            be the proceeds from those illegal activities.
that Herrera would provide Emmett the names              Third, Herrera’s conversations also revealed
and birthdates of certain individuals. Emmett            his promise to use the $3,000 to bribe Dallas
further testified that despite his repeated              police officers, thereby fulfilling the “intention
refusals, Herrera persisted in asking him to do          to promote” element.
such checks through the spring of 1997.
                                                              The government also reiterates that Herrera
   We cannot say the jury committed plain                did not move for a judgment of acquittal at the
error when it construed these actions as                 close of evidence and failed to preserve his
“participation” for purposes of the conspiracy           objection to the sufficiency of the evidence for
charge. We therefore affirm the sufficiency of           his money laundering conviction. Therefore,
evidence for Herrera’s drug conspiracy and               we review for plain error and will reverse only
communication device convictions,5 based on              if it would be a manifest miscarriage of justice
his “participation” in trying to find out                to allow the verdict to stand. United States v.
information about his co-conspirators. We                Bailey, 111 F.3d 1229, 1235 (5th Cir. 1997).
find no plain error and affirm Herrera’s
conviction for conspiracy and communication                                      (i)
device violations.                                          Herrera claims that the $3,000 he received
                                                         from the de la Torre organization does not
                       2.                                constitute a “financial transaction” within the
                       a.                                meaning of § 1956. He points out that the
   To convict of money laundering under                  statute defines a “financial transaction” as “a
§ 1956, the government must prove that the               transaction which in any way or degree affects
defendant (1) knowingly conducted a financial            interstate or foreign commerce . . . .”
transaction that affects interstate or foreign           § 1956(c)(4)(A). The statute t hen defines a
commerce; (2) which involved the proceeds of             “transaction” as a “purchase, sale, loan,
an unlawful activity; and (3) with the intent to         pledge, gift, transfer, delivery, or other
promote or further that unlawful activity, or            disposition” or some action involving a
                                                         financial institution or its facilities.        §
                                                         1956(c)(3). Therefore, as we have pointed
        5
          Almost all the evidence against Herrera        out, a “financial transaction” must at least be a
is based on his recorded conversations with Miguel       “transaction” as defined in § 1956(c)(3). See
de la Torre. His detailed telephone conversations        United States v. Puig-Infante, 19 F.3d 929,
with Miguel about checking his name and social           938 (5th Cir. 1994).
security number for possible police investigations
suffices to support his use of communication                There is some disagreement over which
device to facilitate a drug crime.                       transaction is the actual “money laundering”

                                                     8
transaction at issue. Herrera asserts that only
his alleged bribe payments constitute the                In Puig-Infante, the defendant received
money laundering transaction and that his             money in exchange from the sale of marihuana.
acceptance of $3,000 from the de la Torres            This appeared to be a transaction, but there
should not be considered the “laundering”             was no indication that the money she received
transaction. Thus, he argues that the absence         was the proceeds of unlawful activity. She
of evidence that any bribe payments were              then transported the money interstate by car.
made is relevant to his money laundering              We held that while the transportation of
conviction.                                           money interstate involved the proceeds of an
                                                      unlawful activity, the act of transporting was
   The statute does not make any distinction,         not a transaction for purposes of § 1956. Id.
however, between a party who gives the
proceeds of an illegal activity and one who              As we will explain, the jury could infer that
receives them. As we have explained, the              the transfer of $3,000 from Miguel to Herrera
question is whether the “transaction involved         involved the proceeds of an unlawful activity.
the proceeds of unlawful activity.” Puig-             The only remaining question, then, is whether
Infante, 19 F.3d at 939.                              this purely cash transaction meets the
                                                      definition of a transaction affecting interstate
                                                      commerce.

                                                         Herrera avers that even if his acceptance of
                                                      the $3,000 is the transaction at issue, the
                                                      record is devoid of evidence establishing how
                                                      the $3,000 cash payment he received affected
                                                      interstate or foreign commerce. He maintains
                                                      that the government has failed to meet its
                                                      burden to show even a de minimis effect on
                                                      interstate commerce. See United States v.
                                                      Westbrook, 119 F.3d 1176 (5th Cir. 1997).
                                                      He points out that in cases in which courts
                                                      have affirmed money laundering convictions,
                                                      the “laundering” transactions have at least
                                                      been conducted via wire or the mails and that
                                                      such money was then deposited into bank
                                                      accounts. See United States v. Alford, 999
                                                      F.2d 818, 824 (5th Cir. 1993).

                                                         This court has emphasized the importance
                                                      of the interstate or foreign commerce
                                                      requirement of the financial transaction
                                                      element. For instance, we refused to allow the
                                                      government to meet its “financial transaction”
                                                      burden merely by proving that cash was
                                                      transported interstate by an automobile. See
                                                      Puig-Infante, 19 F.3d at 937. We similarly
                                                      refused to permit a jury to infer a “financial
                                                      transaction” from evidence that cash was
                                                      discovered in a defendant’s home. See United
                                                      States v. Ramirez, 954 F.2d 1035, 1039-40




                                                  9
(5th Cir. 1992).6                                          conceal” element. He argues that there is no
                                                           evidence that he used the money to promote
    In neither of these cases, however, was the            the de la Torre’s unlawful activity. Indeed, all
reviewing court bound by the plain error                   of the agents conducting the de la Torre probe
standard. Under plain error review, we ask                 admitted that they had no evidence that
only if there would be a manifest miscarriage              Herrera did anything at all with the money he
of justice to allow the verdict to stand. Such             received.     They do point, however, to
a manifest injustice occurs only if “the record            Herrera’s statements in his recorded
is devoid of evidence pointing to guilt, or . . .          conversations. Herrera characterizes his
because the evidence on a key element of the               statements in these conversations as boasts and
offense was so tenuous that a conviction                   deceptions and argues that those statements
would be shocking.” Bailey, 111 F.3d                       alone are not sufficient to support his money
at 1235. Under the limited review allowed by               laundering conviction.
the plain error standard, the jury did not
commit plain error by inferring that the cash                 The government submitted recorded
transaction between de la Torre and Herrera                conversations in which where Carmela told
had a substantial effect on interstate commerce            Miguel that Herrera had accepted money from
for purposes of the financial transaction                  their organization to bribe officers. Under
element of § 1956.                                         plain error review, this evidence is sufficient to
                                                           support a reasonable jury’s inference that
                       (ii)                                Herrera accepted the money with the intention
   Herrera further argues that the government              of using it to promote the drug conspiracy
did not meet its burden of proving that he                 through bribery.
knew that the money he received came out of
the proceeds of de la Torre’s drug activities.                                     3.
The government did not ask Miguel to explain                  To demonstrate a conspiracy to commit
whether the money he used to pay Herrera                   money laundering, the government must prove
resulted from drug proceeds or was generated               (1) the existence of a conspiratorial agreement,
through other means.         We cannot say,                (2) one co-conspirator knowingly commits an
however, that there is plain error in allowing             overt act by participat ing in a financial
the inference, from the voluminous evidence                transaction, (3) that the financial transaction
presented about the scale and scope of the de              involves the proceeds of an unlawful activity,
la Torre organization, that Miguel and                     and (4) that the conspirator participating in the
Carmela generated most of their income from                transaction had the intent to promote or
their drug trafficking business.                           further that unlawful activity. United States v.
                                                           Fierro, 38 F.3d 761, 768 (5th Cir. 1994).
                        (iii)                              Alternatively, a conspirator may be held
    Herrera charges that the absence of                    responsible if he had the intent to conceal or
evidence about how he disposed of the money                disguise the nature, the location, source,
is fatal to the “intent to promote” or “intent to          ownership, or control of the proceeds of
                                                           specified unlawful activity. § 1956(a).

          6
                                                              Gurrusquietta does not challenge his
             In a similar case, the Tenth Circuit          substantive money laundering conviction.
refused to allow the government to establish an            Instead, he argues that the government did not
interstate commerce nexus based on a purely cash           present sufficient evidence to support his
transfer. The court chided the government because
it “did not introduce a shred of evidence showing          conviction for conspiring to commit money
the origin or destination of the specific $200 in          laundering. Specifically, he asserts that the
Federal Reserve Notes that constituted the single          government never showed that he agreed to
alleged money laundering transaction. . . .” United        join in a money laundering conspiracy. At
States v. Grey, 56 F.3d 1219, 1225 (10th Cir.              best, he claims that the government has only
1995).                                                     shown that he associated with individuals who

                                                      10
received money via wire transfers from Texas            his trial counsel. Gurrusquietta raises a
to Mexico. A person’s close association with            challenge to the admission of evidence seized
a conspirator is not enough to prove his                during the April 8, 1997, traffic stop.
intentional and knowing participation in the
conspiracy. United States v. Magee, 821 F.2d                                   1.
234, 238 (5th Cir. 1987).                                                      a.
                                                           We review the admission of evidence for
   Essentially, the government need only                abuse of discretion. See United States v.
establish that Gurrusquietta agreed to be part          Coleman, 997 F.2d 1101, 1104 (5th Cir.
of a conspiracy that would conduct financial            1993). Even if such an abuse occurred, we
transactions with the proceeds from illegal             will not reverse unless the error had a
actions in furtherance of the conspiracy. The           “substantial and injurious effect or influence in
evidence establishes that Gurrusquietta had             determining the jury’s verdict.” Lowery, 135
been a supplier to the de la Torre organization         F.3d 957, 959 (5th Cir. 1998).
since 1994 and knew the organization used
wire payments to agents in Mexico to                       Carmela de la Torre testified that Miguel
purchase marihuana.                                     told her that Robles worked for their
                                                        organization. Specifically, she explained that
   These payments over the wires meet the               Miguel would tell her that he needed to
financial transaction element of § 1956, and            borrow the car to go with Robles to collect
the use of money from the distribution of               payments from drug sales. Id. Robles
drugs in Dallas satisfied the “illegal proceeds”        objected to this testimony as inadmissible
element. The evidence also supported an                 hearsay.
inference that the money was used for the
purpose of purchasing marihuana, thereby                   Rule 801(d)(2)(E), FED. R. EVID., permits
satisfying the “promoting in furtherance of the         the admission of a “statement of a conspirator
conspiracy” element.                                    of a party during the course and in furtherance
                                                        of the conspiracy.” To introduce such
   Gurrusquietta’s claim that he merely                 statements, the government must demonstrate
associated with the conspirators is misleading.         by a preponderance of the evidence that the
The jury was entitled to infer from (1) his             speaker made the statement in the course of
substantial involvement in the supply of                the conspiracy and in furtherance of it. United
marihuana to the organization and (2) his               States v. Narviz-Guerra, 148 F.3d 530, 536
brother’s agreement to send $15,000 to                  (5th Cir. 1998).
Mexico for marihuana purchases that he
agreed to participate in the money laundering              There is no doubt that Carmela, Miguel,
conspiracy.                                             and Robles were members of a conspiracy.
                                                        Carmela served as a telephone contact point
                       B.                               and would need to know who was
   Appellants allege that the district court            participating in the organization. Additionally,
made a number of prejudicial errors.                    she testified that Miguel told her about
Specifically, Robles attacks the admission of           Robles’s role in the context of explaining why
Carmela’s testimony and the admission of                he was borrowing the car. This testimony
telephone and pen register records                      seems to satisfy the requirement that the
authenticating the wiretapped conversations.            statement be made in the furtherance of the
Herrera alleges that the court erred by refusing        conspiracy, because Miguel explained that he
(1) to allow witnesses to testify whether any           needed the car to go and collect money from
officers had been bribed; (2) to allow Herrera’s        drug sales. The court did not abuse its
counsel to cross-examine federal agents; and            discretion in admitting this testimony under the
(3) to sever Herrera’s trial from that of the           rule 801(d)(2)(E) co-conspirator exception to
other conspirators. Herrera also invites us to
review, on direct appeal, the effectiveness of

                                                   11
the hearsay rule.7
                                                                                   b.
                                                               Robles objects to the admission of “pen
                                                            register” and wiretap orders from the
                                                            Southwestern Bell Company(“SWB”), arguing
                                                            that the government did not lay sufficient
                                                            foundation to admit them under the business
                                                            records exception to the hearsay rule. See
                                                            FED. R. EVID. 803(6). The rule requires the
                                                            government to lay foundation for business
                                                            record evidence through the testimony of a
                                                            witness who can attest to the procedures used
                                                            to create and maintain the records within the
                                                            business. United States v. Hutson, 821 F.2d
                                                            1015, 1020 (5th Cir. 1987). Robles charges
                                                            that Mary Powell, a witness from the parent
                                                            company (“SBC”), was a custodian who could
                                                            certify that the records were correct.

                                                                Powell was an employee of SBC and
                                                            worked in an office specializing in complying
                                                            with “court orders.” She testified that the
                                                            records were created by an employee of SWB
                                                            in the regular course of business and that she
                                                            personally maintained many of the records in
                                                            her office. Although she did not personally
                                                            create the records used in evidence, her
                                                            testimony confirmed that the procedures for
                                                            maintaining the records submitted into
                                                            evidence occurred in the regular course of
                                                            business. This testimony is sufficient to qualify
                                                            for the rule 803(6) exception to the hearsay
                                                            rule. See Hutson, 821 F.2d at 1020.

                                                                                  c.
                                                               During her closing argument rebuttal, the
                                                            prosecutor said, “Members of the jury, the five
                                                            individuals that are before you today are
                                                            involved in drug dealing in one way or
                                                            another.” According to Robles, this is a
                                                            statement of personal belief regarding guilt
        7
                                                            that deeply prejudiced his case.
           Moreover, even if the admission was in
error, Robles has not shown that the statement                 A prosecutor may not personally vouch for
substantially influenced the verdict. After all, the        the credibility of witnesses, but he may argue
government introduced evidence of Robles’s                  reasonable inferences drawn from the
conversations with Miguel discussing various
matters related to the drug-trafficking scheme,             evidence. United States v. Munoz, 150 F.3d
including (1) the status of payment collections; (2)        401, 414-15 (5th Cir. 1998). The prosecutor’s
the packaging of marihuana for sale; and (3) new            statement here could be reasonably inferred
locations for a stash house. This evidence would            from the evidence she presented and does not
render the admission of Carmela’s testimony                 vouch for the credibility of any witness.
harmless.                                                   Moreover, Robles does not show how this

                                                       12
brief statement prejudices any of his substantial        The government did not have to prove that
rights to a degree meriting reversal. The                Herrera actually paid the bribes to the police
government offered substantial evidence,                 officers. Rather, the statute simply requires
including recorded conversations in which                the jury to find that Herrera accepted the
Robles discussed drug-trafficking matters, to            $3,000 “with the intent to promote the
support his conviction. It is hard to see how            carrying on of specified unlawful activity,” i.e.,
this statement could have made a difference in           the drug-trafficking conspiracy.
the verdict.
                                                             The government offered substantial
                        2.                               evidence, in the form of recorded
                        a.                               conversations between Miguel and Herrera,
    Herrera sought to present witnesses who              establishing that Herrera promised Miguel to
would testify that no police officers had been           use the $3,000 to pay off police officers.
bribed as a result of his payments. He                   Given the strength of this evidence supporting
petitioned the court to allow the Dallas police          the jury’s finding that Herrera intended to pay
chief or deputy chief to testify that no evidence        bribes, we do not think the exclusion of
of bribes had been found as a result of an               witnesses testifying that no actual bribe
internal investigation.        The government            payments were made could have substantially
objected, and the district court excluded these          affected the jury’s determination. Therefore,
witnesses, ruling that their testimony was               the court did not commit reversible error when
irrelevant and would not serve to impeach any            it excluded Herrera’s profferred witnesses.
government witnesses: “I don’t believe that’s
relevant to any issue in the case other than you                                b.
just want to establish nobody was bribed, and               Herrera also sought to cross-examine
nobody said that anybody was bribed. I just              federal agents about statements Herrera made
don’t see—that’s not an element of anything              at the time of arrest. In those statements,
that’s been charged.”                                    Herrera explained that he had made up his
                                                         bribery story to get money from Miguel and
    Herrera responds that the issue of whether           that he had taken no action to pay bribes to
he bribed anyone is relevant to the “financial           police officers. The government filed a motion
transaction” and “furtherance of unlawful                in limine to exclude this evidence as
conduct” element of his money laundering                 inadmissible hearsay.
charge. As we have stated, the “financial
transaction” element at issue is not Herrera’s               The court asked Herrera to present an
alleged bribe payments. Rather, for purposes             applicable exception to the hearsay rule that
of the financial transaction element of his              would allow Herrera to cross-examine the
money laundering conviction, Herrera’s                   witnesses about his post-arrest statements.
receipt of the $3,000 in illegally generated             Herrera offered none. Without a valid
proceeds from the de la Torre organization               exception to the hearsay rule, officers
fulfills that element of the statute.                    testifying about Herrera’s statements to them
                                                         would be testifying about an “out of court
   It is true, however, that whether Herrera             statement” offered for the truth of the matter
actually paid the bribes is relevant to whether          asserted. Therefore, the court did not abuse
he “intended to promote unlawful conduct” for            its “wide latitude to impose reasonable limits
purposes of § 1956. Therefore, the district              on cross-examination” when it refused to
court erred when it ruled that whether any               admit hearsay evidence at trial.
officer was bribed is “not an element of
anything that’s been charged.”                                                 c.
                                                            Herrera claims he should have been granted
   We must still consider, however, whether              a severance. Rule 8(b), FED. R. CRIM. P.,
the excluded testimony prejudiced Herrera’s              allows a court to join defendants in the same
defense to such a degree requiring reversal.             indictment “if they are alleged to have

                                                    13
participated in the same series of acts or                  to cure any risk of prejudice.” Zafiro,
transactions constituting an offense or                     506 U.S. at 539 (citing Richardson v. Marsh,
offenses.” To protect defendants, however,                  481 U.S. 200, 211 (1987)). The Court then
FED. R. CRIM. P. 14 authorizes a severance if               found no abuse of discretion in a denial of
it appears the defendant “is prejudiced by a                severance, even where each defendant had
joinder o f offenses or of defendants in an                 accused the other defendant of the crime. The
indictment.” A court should use rule 14 only                Zafiro Court concluded that with the proper
“if there is a serious risk that a joint trial would        instructions, the jury could give separate
compromise a specific trial right of one of the             consideration to each individual defendant
defendants, or prevent the jury from making a               without prejudicing his co-defendant where the
reliable judgment about guilt or innocence.”                government offered evidence supporting guilt
Zafiro v. United States, 506 U.S. 534, 539                  for all the defendants. See id. at 541.
(1993). We review denial of a severance for
abuse of discretion. United States v. Pofahl,                  In the instant case, the court gave a limiting
990 F.2d 1456, 1483 (5th Cir. 1993).                        instruction telling the jury to consider each
                                                            defendant’s guilt separately without imputing
    Herrera avers that he was highly prejudiced             the guilt of one defendant to another.
as a result of being tried with twenty co-                  Following Zafiro, and in the absence of a more
defendants against whom the government                      specific example of prejudice, we defer to the
provided wiretapped conversations depicting                 district court’s sound discretion over motions
their involvement in the drug trafficking                   for severance.8
conspiracy. Essentially, Herrera argues that
the cumulative effect of being tried with                                          d.
individuals who have been directly implicated                   Herrera’s counsel did not move for
in the drug conspiracy highly prejudiced his                judgment of acquittal at the close of all the
ability to highlight his own very different                 evidence. Therefore, he did not preserve
alleged role in the conspiracy.                             Herrera’s objections to the sufficiency of the
                                                            evidence for his conspiracy, telephone use, and
    Herrera’s generalized claims of prejudice               money laundering convictions. On the basis of
do not show reversible error. The Zafiro                    this failure alone, Herrera’s appellate counsel
Court did state that “[w]hen many defendants                asks this court to find that Herrera received
are tried together in a complex case and they               ineffective assistance of counsel pursuant to
have markedly different degrees of culpability,             Strickland v. Washington, 466 U.S. 668
[the] risk of prejudice is heightened,” Zafiro,             (1984). Following Washington, we will not
506 U.S. at 539. The case cited as an example               reverse based o n an ineffective assistance of
of this kind of prejudice involved a single trial           counsel claim unless (1) the counsel’s
of thirty-two defendants who themselves were                performance is deficient and (2) the errors are
part of eight different conspiracies. See                   so prejudicial as to deprive the defendant of a
Kotteakos v. United States, 328 U.S. 750                    fair trial. Belyeu v. Scott, 67 F.3d 535 (5th
(1946).                                                     Cir. 1995).

   Here, however, the government alleged
only one conspiracy and only one organization
of drug conspirators. Herrera dealt directly                        8
with the head of this organization and                                 Herrera does point to United States v.
discussed matters related to protecting a single            Cortinas, 142 F.3d 242 (5th Cir. 1998), in which
                                                            we reversed a denial of severance where the
form of drug trafficking.                                   government had introduced, against co-defendants,
                                                            “highly inflammatory evidence” of a shooting of a
    Additionally, the Zafiro Court emphasized               14-year-old boy. Id. at 248. No such similarly
that though courts may determine that separate              “inflammatory” evidence was offered here that
trials are necessary, “less drastic measures,               might have enraged the jury and motivated it to
such as limiting instructions, often will suffice           impute guilt to unrelated co-defendants.

                                                       14
   “The general rule in this circuit is that a            agent interventionSSand because the federal
claim of ineffective assistance of counsel                agents themselves did not have sufficient
cannot be resolved on direct appeal when the              probable causeSSthe court should have
claim has not been raised before the district             suppressed all evidence from this search.
court since no opportunity existed to develop
the record on the merits of the allegations.”                A warrantless arrest must be supported by
United States v. Higdon, 832 F.2d 312,                    probable cause. United States v. Shugart,
313-14 (5th Cir. 1987). Review is undertaken              117 F.3d 838, 846 (5th Cir.), cert. denied,
only when the record allows a fair evaluation             118 S. Ct. 433 (1997). Probable cause exists
of the claim. Id.                                         when the totality of facts and circumstances
                                                          within a police officer’s knowledge at the
   Herrera claims that his trial counsel’s failure        moment of arrest are sufficient for a
to move for acquittal at the close of evidence            reasonable person to conclude that the suspect
is obvious from the record and adequately                 had committed, or was in the process of
developed for review. Still, we have allowed              committing, an offense. Id. Because we find
these types of claims on direct appeal only in            that the challenged search was consented to
cases in which the trial attorney had been given          after a legitimate traffic stop, we do not
a chance to respond to the allegations9 or                consider whether probable cause existed to
where government conduct was allegedly                    sustain a warrantless search.
responsible for the ineffective assistance.10
Herrera’s trial counsel has not been given the                The police testified that they stopped
opportunity to explain his alleged error, and             Gurrusquietta’s vehicle because it was
there is no evidence to consider in the                   following a vehicle too closely, then swerved
ineffective assistance of counsel record other            and almost hit a police car. The government
than the mere failure to move for an acquittal.           claims that, having been lawfully stopped,
This is hardly a developed record.                        Gurrusquietta consented to the search, thereby
Accordingly, we dismiss the ineffective                   obviating the probable cause requirement.
assistance claim without prejudice.
                                                             Gurrusquietta does not contest that he was
                      3.                                  stopped pursuant to a legitimate traffic stop or
   Gurrusquietta challenges the failure to                that he consented to the search. Rather, he
suppress evidence seized during the police                contends that probable cause was still
search of his car on April 8, 1997. He was                necessary, because the state police would have
observed by federal agents picking up a gym               never stopped him were it not for the
bag from a car that had previously been at the            suspicions of the federal agents. In other
de la Torre residence. The agents then                    words, because the traffic stop was motivated
followed him on the highway, contacted state              by federal agents’ suspicions of a drug
police, and asked them to stop him for a traffic          transaction, the stop itself must be supported
violation.                                                by probable cause to pass muster under the
                                                          Fourth Amendment.
   After stopping him pursuant to a traffic
violation, the police asked for and received                 Unfortunately for Gurrusquietta, we have
consent to search the car. Gurrusquietta now              upheld a search conducted pursuant to a traffic
claims that because the state police officers             stop motivated by suspicions but not
would not have stopped him but for the federal            supported by probable cause. Because we
                                                          review only the objective reasonableness of a
                                                          search, we will not consider the subjective
        9
         United States v. Phillips, 664 F.2d 971,         motives of the officer conducting the search.
1040-42 (Former 5th Cir. Dec. 1981).                      See United States v. Castro, 166 F.3d 728,
                                                          734 (5th Cir. 1998) (en banc).
        10
           United States v. Martinez-Perez, 941
F.2d 295, 301-02 (5th Cir. 1991).                            In Castro, we upheld a search conducted

                                                     15
after a legitimate traffic stop, even though the          that he actually used a gun as part of the drug
government admitted that the stop had been                conspiracy. Under the clear error standard of
motivated by suspicions of drug trafficking.              review, though, the court was entitled to
Therefore, this court squarely rejected the               disbelieve Robles’s “I was just bragging”
view advanced by Gurrusquietta here (and in               defense.    We affirm the two-level gun
the Castro panel opinion) that because the                enhancement.
traffic stop was a “ruse,” any subsequent
search had to be supported by probable cause.                                   2.
Castro, 166 F.3d at 734.                                                        a.
                                                             According to U.S.S.G. § 1B1.3, a
   For this reason, the district court did not err        defendant is liable for the amount of drugs
when it refused to suppress evidence seized               reasonably foreseeable to him during the life of
during the April 8 search of Gurrusquietta’s              the conspiracy. The court accepted the PSR's
car. The traffic stop was legitimate, and the             calculation that Robles should be attributed
subsequent search was conducted only after                1,000 pounds of marihuana.
the officers received the consent of the
passengers. No probable cause was needed to
support this search.

                      D.
   We review the application of sentencing
guidelines to factual findings and the factual
findings themselves for clear error. In making
findings of fact for sentencing purposes, a
court need only be convinced by a
preponderance of evidence. Shugart, 117 F.3d
838, 848 (5th Cir.), cert. denied, 118 S. Ct.
433 (1997).

                       1.
   Robles’s sentence was enhanced two levels
pursuant to U.S.S.G. § 2D1.1(b)(1) for
possessing a dangerous weapon. Robles
argues that there is no evidence that he
possessed any weapon at all, much less one
that was connected to the drug conspiracy.
We review this frontal assault on factual
findings for clear error.

   The district court relied primarily on
recorded conversations in which Robles
recounted stories about using a firearm during
drug transactions. These conversations also
revealed Miguel de la Torre's instructing
Robles to purchase a firearm for use during
drug transactions. The court also enhanced
Robles’s sentence because an empty gun box
with ammunition was found at his home.

   Robles responds that he was only bragging
about using a gun during the recorded
conversations and that there is no evidence

                                                     16
   The PSR made this calculation in an                      The government concedes this is clear error
unusual manner. First, it relied on Miguel de            and requests a remand for resentencing. We
la Torre’s testimony that his organization               therefore vacate Gurrusquietta’s sentence and
moved between 20,000 to 25,000 pounds of                 remand for resentencing under a guideline
marihuana during a 78-week period. More                  range consistent with the amounts attributed to
specifically, the PSR found that Miguel had              him.
sold and distributed about 1,000 pounds of
marihuana between April 14 and May 9, 1997,                 The judgments of conviction and sentence
thus averaging about 250 kilograms a week.               are AFFIRMED, except that Gurrusquietta’s
Because the PSR found that Robles worked                 sentence is VACATED and REMANDED for
closely with Miguel over the last two months             resentencing.
of the conspiracy, the PSR found that Robles
should be attributed at least 1,000 pounds for
this period, because all the drugs moved by the
organization were reasonably foreseeable to
him.

    Robles replies that it is improper to average
the marihuana moved over the 78-week period
to calculate the amount attributable during the
last two months, because Miguel made far
fewer transactions during that period. In fact,
Robles claims there is no evidence that any
marihuana transactions occurred during the
period cited by the PSR.

   According to the PSR, however, the final
amount attributed to Robles was based on
“further investigation by case agents” rather
than on simple averaging. In its initial
recommendation, the PSR noted that it had
calculated the amounts attributable to Robles
based on “wire communications, video and
physical surveillance, debriefings with co-
defendants, arrest and seizure of money and
wire transfer records.” We infer that the
PSR’s reference to “further investigation” in
the addendum means that the PSR’s 1,000-
pound calculation is based on more than mere
averaging. Therefore, the court did not
commit clear error when it adopted this
section of the PSR.

                       b.
   Gurrusquietta was held responsible for
more than 1,000 kilograms of marihuana,
subjecting him to an enhanced sentence
requiring a 240-month mandatory minimum.
The evidence at trial and in the PSR, however,
plainly stated Gurrusquietta was only
responsible for 668.15 kilograms.


                                                    17
