37 F.3d 1359 (9th Cir. 1994), 91-50642, United States v. Garcia

Docket Nº:91-50642.
Citation:37 F.3d 1359
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Darnell GARCIA, Defendant-Appellant.
Case Date:October 04, 1994
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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37 F.3d 1359 (9th Cir. 1994)

UNITED STATES of America, Plaintiff-Appellee,

v.

Darnell GARCIA, Defendant-Appellant.

No. 91-50642.

United States Court of Appeals, Ninth Circuit

October 4, 1994

Argued and Submitted Dec. 7, 1993.

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[Copyrighted Material Omitted]

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Gail Ivens, Pasadena, CA, for defendant-appellant.

Stefan D. Stein, Asst. U.S. Atty., Los Angeles, CA, for plaintiff-appellee.

Appeal from the United States District Court for the Central District of California.

Before: HUG, SCHROEDER, and FERGUSON, Circuit Judges.

HUG, Circuit Judge:

I.

OVERVIEW

Darnell Garcia, a former Special Agent of the Drug Enforcement Administration

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("DEA") appeals his conviction and sentence in the district court following a five-month jury trial for violating 21 U.S.C. Sec. 846, narcotics conspiracy; 18 U.S.C. Sec. 641, theft of government property; 21 U.S.C. Sec. 841(a)(1), possession with intent to distribute heroin; and 18 U.S.C. Secs. 1956(a)(1) and (a)(2), money laundering. His pre-guidelines sentence totaled 80 years. We have jurisdiction pursuant to 28 U.S.C. Sec. 1291, and we affirm.

II.

FACTS

On November 21, 1988, Garcia and fellow DEA agents John Jackson and Wayne Countryman were charged in a criminal complaint with one count of conspiracy to evade federal income taxes. On November 22, Jackson and Countryman were arrested. Garcia evaded arrest, and in January 1989, fled the United States.

While Garcia was a fugitive, federal grand juries issued two superseding indictments adding two additional defendants and additional charges for a total of 42 counts. Garcia was named in 26 of the counts. The superseding indictments charged the defendants with a wide-ranging conspiracy to steal drugs and money from the DEA, possession and distribution of narcotics, and multiple tax and currency reporting violations.

Garcia was arrested on July 3, 1989, at a travel agency in the Grand Duchy of Luxembourg. On February 15, 1990, pursuant to an extradition treaty, the Luxembourg Minister of Justice issued a decree ordering Garcia's extradition to the United States on 6 of the 26 counts alleged against Garcia in the third superseding indictment. 1

On February 26, 1990, Garcia made his first appearance in the United States District Court for the Central District of California, Judge Terry J. Hatter, Jr., presiding. He was arraigned on the six-count indictment and charged with: count 1, conspiracy to possess with intent to distribute cocaine and heroin and use of communication facilities to facilitate the commission of drug offenses in violation of 21 U.S.C. Secs. 841(a)(1), 843(b), and 846; count 2, theft of one kilogram of heroin, which was government property, in violation of 18 U.S.C. Sec. 641; count 3, possession with intent to distribute heroin in violation of 21 U.S.C. Sec. 841(a); counts 4 and 5, transferring proceeds of narcotics trafficking in violation of 18 U.S.C. Secs. 1956(a)(2) and 1956(a)(1); and count 6, giving notice of an intended government search and seizure in violation of 18 U.S.C. Sec. 2232.

On November 15, 1990, Garcia's jury trial commenced. The trial lasted five months. Approximately 90 witnesses testified, including former codefendants Jackson and Countryman who, pursuant to a plea agreement, testified against Garcia. Garcia argued at trial that he was being prosecuted in retaliation for filing a successful discrimination suit against the DEA, and that all monies discovered in his Swiss bank account were not acquired through narcotics trafficking, but through jewelry smuggling and "under karating," offenses not charged in the indictment and not extraditable under the treaty with Luxembourg. The jury did not believe Garcia's story. He was convicted on Counts 1 through 5. 2

On July 22, 1991, Garcia was sentenced consecutively on all 5 counts to a pre-guidelines sentence of 80 years, and a fine of $1,160,000.

III.

THE ISSUES ON APPEAL

Garcia makes five arguments on appeal: (a) that it was error to refuse to give a jury instruction on how to weigh evidence of commingled funds in connection with the money laundering charges, (b) that it was error to refuse a requested instruction on the Government's alleged failure to collect and preserve

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potentially exculpatory evidence, (c) that it was error to allow the Government to present Garcia's foreign bank records as evidence, (d) that it was error to correct the sentence pursuant to Fed.R.Crim.P. 35, and (e) that it was error to sentence him under the conspiracy conviction to 15 years because the jury rendered a general verdict.

  1. The Commingling of Funds Instruction

    Garcia contends that the district court erred when it refused to instruct the jury on how to evaluate proceeds from a commingled bank account under the money laundering charges. We disagree.

    Garcia was charged in Counts 4 and 5 with money laundering under 18 U.S.C. Secs. 1956(a)(1)(B)(i) and (a)(2)(B)(i). The indictment stated that he had transferred $420,000 from his Swiss bank account to his account in Santa Monica and that the transferred money was proceeds from illegal narcotics transactions. The statute states in pertinent part:

    (a)(1) Whoever, knowing that the property involved in a financial transaction represents the proceeds of some form of unlawful activity, conducts or attempts to conduct such a financial transaction which in fact involves the proceeds of specified unlawful activity--

    (B) knowing that the transaction is designed in whole or in part--

    (i) to conceal or disguise the nature, the location, the source, the ownership, or the control of the proceeds of specified unlawful activity

    (2) Whoever transports, transmits, or transfers, or attempts to transport, transmit or transfer a monetary instrument or funds from a place in the United States to or through a place outside the United States or to a place in the United States from or through a place outside the United States--

    (B) knowing that the monetary instrument or funds involved in the transportation, transmission, or transfer represent the proceeds of some form of unlawful activity and knowing that such transportation, transmission, or transfer is designed in whole or in part--(i) to conceal or disguise the nature, the location, the source, the ownership, or the control of the proceeds of specified unlawful activity....

    shall be sentenced to a fine ... or imprisonment for not more than twenty years, or both.

    18 U.S.C. Sec. 1956 (1992 Supp.)

    The undisputed evidence at trial revealed that on May 21, 1987, Garcia transferred $420,000 from a Swiss bank account to the Santa Monica Bank, and then on May 28, 1987, used that money towards the purchase of a $581,600 home in Palos Verdes, California. Prior to the wire transfer, the Swiss account contained approximately $1,700,000.

    The Government contended that the $420,000 were proceeds from Garcia's narcotics trafficking. The Government presented evidence that approximately $1,483,165 of the funds in the Swiss account were receipts from the sale of stolen drugs. The evidence was supported by the testimony of coconspirators Countryman and Jackson, who testified regarding 13 separate thefts of drugs and monies from DEA vaults and from DEA-targeted narcotics traffickers that they and Garcia participated in over a six-year period. The Government produced evidence that Garcia attempted to conceal the source of the funds to purchase the house by creating fictitious loan documents purporting to show that the funds were borrowed from an Italian citizen named DiUbaldo instead of coming from his Swiss bank account. Mr. DiUbaldo testified that he never loaned Garcia any money.

    Garcia's defense to the money laundering charges was that the money in the Swiss account was not proceeds from drug trafficking, but rather, it was the proceeds of jewelry smuggling, a crime with which he was not charged. Garcia presented a detailed account of several trips to Italy where he would pick up hundreds of kilograms of gold jewelry for a company named Oro Aurora and smuggle it into the United States. Garcia's expert testified that from 1983 to 1987 Garcia would have received approximately $2,000,000 from his jewelry smuggling. Based on this testimony, Garcia claimed that all of the

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    money in the Swiss account was derived from jewelry smuggling, not narcotics trafficking.

    Both parties submitted proposed jury instructions regarding how to evaluate the proceeds from the Swiss bank account that had been transferred to the Santa Monica Bank. The district court refused to give an instruction on commingling of the funds, ruling that it was an issue of fact for the jury to decide whether Garcia's withdrawal of $420,000 represented the proceeds of drug trafficking in violation of section 1956.

    "We review the district court's determination whether there was a factual basis for giving an instruction for an abuse of discretion and review related issues of law de novo." United States v. Taren-Palma, 997 F.2d 525, 530 (9th Cir.1993), cert. denied, --- U.S. ----, 114 S.Ct. 1648, 128 L.Ed.2d 368 (1994). Garcia's contention is a factual issue. Thus, we review for abuse of discretion.

    Garcia claims that the district court misstated the elements of the money laundering offenses because it failed to instruct the jury that the Government had the burden to prove that the money had been specifically derived from drug trafficking. We have held that "[s]o long as the [jury] instructions fairly and adequately cover the issues presented, the judge's formulation of those instructions or choice of language is a matter of discretion." United States v. Lopez, 885 F.2d 1428, 1434 (9th Cir.1989), cert. denied, 493 U.S...

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