United States v. Moreno ( 2007 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT May 4, 2007
Charles R. Fulbruge III
Clerk
No. 05-40560
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
SABY MORENO,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 2:04-CR-277-2
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Before JOLLY, DENNIS, and CLEMENT, Circuit Judges.
PER CURIAM:*
Saby Moreno appeals following her jury-trial convictions on
one count of conspiring to possess with intent to distribute a
controlled substance (Count One) and on one count of conspiring
to launder financial instruments (Count Two). Moreno first
challenges the sufficiency of the evidence on Count Two. Because
the issue of the sufficiency of the evidence was preserved, the
applicable standard of review is “whether, viewing all the
evidence in the light most favorable to the verdict, a rational
*
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this opinion should not be published and is not precedent except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.
No. 05-40560
-2-
trier of fact could have found that the evidence establishes the
essential elements of the offense beyond a reasonable doubt.”
United States v. Villarreal, 324 F.3d 319, 322 (5th Cir. 2003).
Moreno argues that the evidence is insufficient because
there is no proof that she disposed of the proceeds of the drug
distribution activity by giving them to another person or that
money from drug distribution was actually used to pay the
supplier of drugs. Moreno, however, was charged for her
participation in a money laundering conspiracy, not for a
substantive money laundering offense. “When the underlying
offense is an inchoate one such as attempt or conspiracy, then
the attempt or conspiracy is all that must be shown . . . , and
it is not necessary to show completion of the objective of that
inchoate crime.” United States v. Rey, 641 F.2d 222, 224 n.6
(5th Cir. 1981).
The evidence adduced at trial showed that cocaine was hidden
in a vehicle registered to Moreno and that Moreno, with the
assistance of a pilot whom she contacted, transported the cocaine
to Louisville, Kentucky, where it was sold. Moreno participated
in counting out the drug proceeds and an amount sufficient to pay
the cocaine supplier, whom Moreno identified, was placed into a
bag. The evidence was sufficient to establish that Moreno joined
a conspiracy to launder monetary instruments with the intent to
promote the carrying on of unlawful drug distribution activity.
No. 05-40560
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See United States v. Threadgill, 172 F.3d 357, 366 (5th Cir.
1999); 18 U.S.C. §§ 1956(a)(1)(A)(i), (h).
Moreno also contends that the evidence is insufficient to
prove that she engaged in a financial transaction involving
proceeds from drug trafficking in order to conceal the ownership
or control of the proceeds of drug trafficking. Because, as
discussed above, the evidence was sufficient to show that Moreno
joined a conspiracy to launder monetary instruments with the
intent to promote the carrying on of unlawful drug distribution
activity, this argument fails. See United States v. Johnson, 87
F.3d 133, 136 n.2 (5th Cir. 1996).
Moreno also argues that the district court violated her
right under the Sixth Amendment to a unanimous jury verdict by
failing to give an instruction requiring the jury to unanimously
agree on which provision of 18 U.S.C. § 1956 she violated. As
Moreno concedes, her failure to raise the issue in the district
court limits this court to plain error review. See United States
v. Alford, 999 F.2d 818, 824 (5th Cir. 1993).
“In the routine case, a general unanimity instruction will
ensure that the jury is unanimous on the factual basis for a
conviction, even where an indictment alleges numerous factual
bases for criminal liability.” United States v. Holley, 942 F.2d
916, 925-26 (5th Cir. 1991). However, such an instruction is
insufficient if “there exists a genuine risk that the jury is
confused or that a conviction may occur as the result of
No. 05-40560
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different jurors concluding that a defendant committed different
acts.” Id. at 926 (citation and quotation marks omitted).
Here, the district court did give a general unanimity
instruction, and Moreno fails to point to any evidence of
confusion or disagreement within the jury. Moreno has failed to
establish plain error. See United States v. Tucker, 345 F.3d
320, 336 (5th Cir. 2003) (finding no plain error where appellant
“does not corroborate his claim of prejudicial error with a
modicum of evidence tending to show that the jury was confused or
possessed any difficulty reaching a unanimous verdict”).
AFFIRMED.