                                                                                 PUBLISH

                 IN THE UNITED STATES COURT OF APPEALS

                           FOR THE ELEVENTH CIRCUIT          FILED
                            ________________________ U.S. COURT OF APPEALS
                                                                   ELEVENTH CIRCUIT
                                                                       12/15/99
                                    No. 97-5502
                                                                    THOMAS K. KAHN
                             ________________________                   CLERK

                           D. C. Docket No. 95-482-CR-SH

UNITED STATES OF AMERICA,

                                                                Plaintiff-Appellee,

                                          versus

EDILBERTO J. MIRANDA,

                                                                Defendant-Appellant.

                             ________________________

                     Appeal from the United States District Court
                         for the Southern District of Florida
                           _________________________
                                (December 15, 1999)


Before COX, Circuit Judge, KRAVITCH, Senior Circuit Judge, and PROPST*,
Senior District Judge.

_________________
*Honorable Robert B. Propst, Senior U.S. District Judge for the Northern District of Alabama,
sitting by designation.




PER CURIAM:
      Edilberto J. Miranda appeals his conviction and sentence for conspiracy to

launder money, in violation of 18 U.S.C. § 1956(h), and money laundering, in

violation of 18 U.S.C. § 1956(a)(1)(B)(i). We affirm in part; reverse in part; and

vacate and remand in part.

                                 I. BACKGROUND

      Before his conviction, Miranda worked as a stockbroker with Prudential Bache

Securities in Coral Gables, Florida. As such, Miranda provided numerous financial

services for Enrique Zamorano, a narcotics trafficker. Miranda provided similar

financial services for two other narcotics traffickers, Julio Morejan and Omar

Elesgaray; Elesgaray introduced Miranda to Zamorano.

      Miranda was charged with one count of conspiracy to commit money

laundering, in violation of 18 U.S.C. § 1956(h) (Count 1), and twenty-two counts of

money laundering for financial transactions completed for Zamorano, in violation of

18 U.S.C. § 1956 and 1957 (Counts 2 through 23). A jury convicted Miranda on

Counts 1 and 19, acquitted Miranda on Counts 3 through 16, and was unable to reach

a verdict on the remaining counts.1




      1
            A mistrial was declared on Counts 2, 17, 18, and 20 through 23.

                                            2
       At sentencing, the court found that Miranda was responsible for laundering a

total of $2,908,254, resulting in a six-level increase in Miranda’s base offense level

pursuant to U.S.S.G. § 2S1.1(b)(2)(G).

                                       II. DISCUSSION

       Miranda argues that a violation of the Ex Post Facto Clause of the Constitution

requires the reversal of his conviction on Count 1 and that spillover prejudice requires

a new trial on Count 19. Miranda also contends that his sentence must be vacated

because of the improper calculation of the amount of money laundered.2 We consider

these arguments in light of the following standards: the ex post facto question is

reviewed for plain error because it was not raised before the district court, see United

States v. Hayes, 40 F.3d 362, 364 (11th Cir. 1994), and the district court’s findings of

fact in support of sentencing are reviewed for clear error while the application of those

facts to the sentencing guidelines is reviewed de novo. See United States v. Smith,

127 F.3d 1388, 1389 (11th Cir. 1997).




       2
                Miranda also argues that the district court erroneously gave two jury charges and
refused to give three of Miranda’s requested jury charges, violated Miranda’s Confrontation Clause
rights by curtailing the cross-examination of witnesses, and gave an Allen charge despite
extrajudicial pressures on the jury and its revelation of its numerical division. These arguments are
without merit and do not warrant further discussion. See 11th Cir. R. 36-1.

                                                 3
                             A. Conspiracy Conviction

      Miranda asserts, and we agree, that Count 1 improperly sought to convict him

for conduct occurring prior to the enactment of the conspiracy statute. Count 1

charged that Miranda participated in a conspiracy to launder money from in or about

November, 1986, to on or about July 31, 1991, in violation of 18 U.S.C. § 1956(h).

The statutes prohibiting the substantive offense of money laundering, 18 U.S.C. §§

1956 and 1957, were enacted in October 1986. See Anti-Drug Abuse Act of 1986,

Pub. L. No. 99-570, 100 Stat. 3207 (codified at 18 U.S.C. §§ 1956 and 1957). As the

Government concedes, however, the statute prohibiting conspiracies to launder

money, § 1956(h), did not take effect until October 1992, more than a year after the

conspiracy charged had ended. See Act of October 28, 1992, Pub. L. No. 102-550, §

1530, 106 Stat. 4066 (originally codified at 18 U.S.C. § 1956(g); now codified at 18

U.S.C. § 1956(h)). This is a naked ex post facto violation, as “[t]he Ex Post Facto

Clause flatly prohibits retroactive application of penal legislation.” Landgraf v. USI

Film Prods., 511 U.S. 244, 266, 114 S. Ct. 1483, 1497 (1994) (italics omitted). The

Government concedes that Miranda’s conviction and sentence on Count 1 constitutes

plain error; we agree and thus reverse Miranda’s conviction on Count 1.




                                          4
                                    B. Spillover

      Miranda challenges his conviction on Count 19 as well because the conspiracy

count–with its broad scope–allowed the Government to introduce otherwise

inadmissible evidence of Miranda’s dealings with the other two drug dealers, Morejan

and Elesgaray. The Government counters that reversal is unnecessary for two reasons.

We find both persuasive.

      First, the jury verdict establishes that the jury was able to properly

compartmentalize and analyze the evidence. The jury convicted Miranda on the

conspiracy count and on only one of twenty-two substantive counts, demonstrating

an ability to separate out the relevant evidence for each count. See United States v.

Cassano, 132 F.3d 646, 651-52 (11th Cir.) (concluding that the jury made

individualized determinations as to each defendant in a conspiracy case by its verdict

acquitting one defendant on all counts, another on all but two counts, and every other

defendant on all but one count), cert. denied, — U.S. — , 119 S. Ct. 103 (1998); cf.

United States v. Pedrick, 181 F.3d 1264, 1273 (11th Cir. 1999) (finding that the jury

did not adequately sift the evidence and make an individualized determination as to

one defendant because the jury deliberated for only about three hours and returned

guilty verdicts on all 90 counts against one defendant and all 125 against the other




                                          5
defendant). Miranda’s jury carefully sifted the evidence, and the verdict demonstrated

its ability to accurately compartmentalize the evidence to the appropriate charges.

      The Government’s second persuasive argument is that the same evidence would

have been admitted at trial even without the conspiracy charge since the other counts

all alleged substantive violations of the money-laundering statute. Federal Rule of

Evidence 404(b) permits the admission of prior-bad-acts evidence to show motive,

preparation, knowledge, and intent, as well as an ongoing scheme or plan. See United

States v. Lehder-Rivas, 955 F.2d 1510, 1515-16 (11th Cir. 1992) (noting that evidence

of criminal activity other than the charged offense is admissible for purposes of Rule

404(b) if it pertains to the chain of events explaining the context, motive and set-up

of the crime and is linked in time and circumstances with the charged crime); United

States v. Cross, 928 F.2d 1030, 1047 (11th Cir. 1991) (affirming the admission of

evidence of events which occurred prior to the date that the charged conspiracy

commenced pursuant to FED. R. EVID. 404(b) as relevant evidence of intent). In short,

the evidence that Miranda had laundered money for drug dealers other than Zamorano

was relevant to show that he knew what he was doing for Zamorano.

      Miranda counters, however, that Rule 404(b) admission generally requires a

limiting instruction, and that the district court’s failure to give an instruction limiting

the use of this evidence to its proper scope under Rule 404(b) permitted prejudicial


                                            6
consideration of this evidence for improper purposes. See United States v. Gonzalez,

975 F.2d 1514, 1517-18 (11th Cir. 1992). We cannot agree. The failure to give a

limiting instruction is error only when such an instruction is requested.3 See Sherman

v. Burke Contracting, Inc., 891 F.2d 1527, 1534 (11th Cir. 1990) (quoting FED. R.

EVID. 105 and explaining that under this rule, the court has a duty to give a limiting

instruction only upon request), superseded in non-relevant part by statute as stated

in Andrews v. Lakeshore Rehabilitation Hosp., 140 F.3d 1405 (11th Cir. 1998).4

       Miranda cites one case that he believes undermines our conclusion that he

cannot demonstrate prejudicial spillover. We disagree. That case is United States v.

Adkinson, 135 F.3d 1363 (11th Cir. 1998). We find Adkinson distinguishable

procedurally because the defendants moved to dismiss the defective conspiracy count

before trial, and the government refused to concede dismissal until it put on four


       3
                Miranda also argues that he did not have the opportunity to request a limiting
instruction because the evidence was admitted as direct evidence of the conspiracy. This argument
fails, however, as Miranda could have requested an instruction limiting the use of the other-bad-acts
evidence as applied to the substantive counts. Cf. Gonzalez, 975 F.2d at 1517-18 (reversing where
evidence was admitted in support of a conspiracy count and the district court failed to give an
instruction limiting the use of the other-bad-acts evidence as applied to the substantive counts,
despite the defendant’s request).
       4
                Since the court had no duty to give a limiting instruction in the absence of a request,
we may reverse only if we conclude that the court's failure to give the instruction constituted plain
error. See Sherman, 891 F.2d at 1534. While Miranda has not argued that the district court’s failure
to give a limiting instruction constituted plain error, we conclude, in light of the facts of this case,
that no error which seriously affected the fairness, integrity, or public reputation of judicial
proceedings occurred. See Jones v. United States, — U.S. —, —, 119 S. Ct. 2090, 2102 (1999)
(defining plain error).

                                                   7
months of evidence and concluded the presentation of its case. See id. at 1370, 1372-

73. In the present case, the defect in the conspiracy count was not brought to the

court’s attention prior to this appeal. Furthermore, Miranda has not shown that any

evidence admitted against him pursuant to the conspiracy count would not have been

admissible pursuant to FED. R. EVID. 404(b). Cf. id. at 1372 (noting that pursuant to

the conspiracy charge, the district court allowed the introduction of “an enormous

amount of evidence under rules applicable only to conspiracies.”)

      We reject the argument that prejudicial spillover occurred. Evidence of

Miranda’s financial activities on behalf of other narcotics traffickers would have been

admissible at trial pursuant to FED. R. EVID. 404(b), and Miranda’s jury verdict

reflected careful sifting of the evidence in support of each count. Miranda’s

conviction on Count 19, therefore, is due to be affirmed.

                                    C. Sentencing

      Because the conspiracy conviction has been reversed, Miranda’s sentence will

be vacated. Miranda’s further attacks his sentence on the ground that some $1.2

million of the $2.9 million figure the district court used to calculate Miranda’s

sentence involved transactions that predated the enactment of 18 U.S.C. §§ 1956 and

1957, the statutes which prohibit money laundering. In other words, according to

Miranda, $1.2 million of the amount included by the district court at sentencing as part


                                           8
of the funds laundered, pursuant to U.S.S.G. § 2S1.1(b)(2), was not money laundered

in violation of the money-laundering statute. We agree.

      Section 2S1.1 provides for a "specific offense characteristic" increase in the

base offense level, depending on the value of the funds laundered in violation of 18

U.S.C. § 1956. We have said that the term “funds,” as used in U.S.S.G. § 2S1.1,

“‘obviously refer[s] to funds that are used by the defendant in an unlawful monetary

transaction.’" United States v. Barrios, 993 F.2d 1522, 1524 (11th Cir. 1993) (quoting

United States v. Johnson, 971 F.2d 562, 575 (10th Cir. 1992)).

      The Government counters with two arguments. First, the Government argues

that Miranda was sentenced only for the crimes for which he was convicted, and that

the Sentencing Guidelines mandate the inclusion of all amounts of money laundered

as relevant conduct in determining the sentence for the crimes of conviction. This

argument, however, begs the question of how money could have been laundered prior

to the enactment of the statutes which prohibit money laundering.

      The Government’s second argument is that Miranda’s financial transactions

were not innocent because other statutes, such as those prohibiting the interstate

transport of drug proceeds and the aiding and abetting of the distribution of controlled

substances, made those transactions illegal. Even assuming, however, that Miranda

could have been charged (or even convicted) pursuant to other statutes, we find this


                                           9
argument unpersuasive. Miranda was not charged with criminal conduct in violation

of any other statute, and there is no finding here that Miranda’s conduct violated any

other statute. Furthermore, under § 2S1.1, a defendant’s culpability is determined by

the amount of money laundered in violation of the money-laundering statute, not by

the amount of dirty money associated with the defendant.

      Because the applicable sentencing guideline requires an increase of the base

offense level based on the value of the funds laundered, not based on any other

relevant conduct, we conclude that the sentencing court erred by including the value

of funds that involved financial transactions that occurred prior to the enactment of

the statute that made money laundering unlawful. Thus the district court must

recalculate the amount of funds laundered.

                                III. CONCLUSION

      We reverse the conviction on Count 1 and affirm the conviction on Count 19.

We vacate Miranda’s sentence and remand for resentencing.

      AFFIRMED IN PART; REVERSED IN PART; VACATED AND

REMANDED IN PART.




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