U.S. v. Demarest, No. 08-12296.
| Decision Date | 10 June 2009 |
| Docket Number | No. 08-12296. |
| Citation | 570 F.3d 1232 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Roger DEMAREST, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
Fred Haddad, Fred Haddad, P.A., Fort Lauderdale, FL, for Demarest.
Dawn Bowen, Anne R. Schultz, Asst. U.S. Atty., Laura Thomas Rivero, Miami, FL, for U.S.
Appeal from the United States District Court for the Southern District of Florida.
Before MARCUS and PRYOR, Circuit Judges, and SCHLESINGER,* District Judge.
This appeal presents four issues about a conviction and sentence for money laundering. After he sold a sailboat to two undercover law enforcement officers who posed as narcotics traffickers, Roger Demarest was convicted of one count of money laundering and acquitted of two other counts of the same offense. Demarest argues that he was intoxicated and entrapped; prosecutorial misconduct entitles him to a new trial; the district court delivered a coercive Allen charge; and the district court erred when it calculated his sentence. These arguments fail. When we review the evidence in the light most favorable to the government, the record establishes that Demarest was a persistent and lucid salesman who was eager to close the boat deal even though he knew that the agents' purchase money was illegal drug proceeds. Demarest failed to prove that any statements by the prosecutor prejudiced him; the Allen charge was the pattern jury instruction, which we have upheld as not being coercive; and the district court correctly applied the Sentencing Guidelines. We affirm.
In June 2007, Demarest, a yacht broker in south Florida, was indicted on three counts of money laundering that occurred during a sting operation in which two undercover law enforcement officers posed as narcotics traffickers. The sting operation commenced in 2005 and originally targeted William Pepper Rodda, another yacht broker. Bruce Coleman, a federal revenue agent, posed as a money launderer and financier for a drug smuggler, and Doug Peters, a Sarasota police officer, posed as the boat captain for the drug smuggler. Coleman first met Rodda in April 2005, and the pair met again, with Peters, in November 2005. Hurricane Katrina and Coleman's work on unrelated cases caused the delay between the meetings. Because the agents asked to purchase a boat with cash and without completing any paperwork, Rodda would not sell them a boat.
Rodda recommended that the agents contact Demarest, a friend of his, who was the listed broker for a fifty-foot sailboat that might meet their needs. Although the agents had not previously heard of Demarest, they followed Rodda's recommendation. The agents first met with Demarest in November 2005.
Demarest asked the agents where they planned to sail, and they told him South America. The agents asked Demarest about the fuel capacity and radar equipment of the boat, and Demarest became aware that they planned to use the boat for an illicit purpose. Demarest offered to help the agents acquire the radar equipment they needed.
When the three men began to discuss the purchase of the boat, the agents stated that their boss would buy the boat only with cash. Although Demarest said he "d[id]n't like cash[,]" he agreed to accept cash if the agents would pay in increments smaller than $10,000 to avoid "the IRS com[ing] down on [his] case." Coleman told Demarest that their boss's name could not appear on the contract, and Demarest advised the agents to form a Delaware corporation to purchase the boat. The agents also inquired about the likelihood that the Coast Guard would board the boat, and Demarest explained that the Coast Guard ordinarily boarded powerboats, not sailboats.
Demarest's awareness of the illicit nature of the agents' business increased as the meeting continued. The agents explained that they could not enter a contract that day because their boss "can't come in[to] the country right now." Demarest asked whether the boss was "a bad boy," and the agents responded that "one of his employees got popped and kind of rolled over on him" and that "[d]opers are dopey and people are dopey." Demarest told the agents that he "thought [he] was smelling a little . . . whiff of that." When Peters stated that he liked the boat because it could haul a lot of "cargo," Demarest responded that he "didn't hear that[,]" and Coleman stated that Peters "didn't say `drugs,' he said `cargo.'" Peters stated that he had been "hauling dope on catamarans and . . . [couldn't] get enough on them to make." Demarest again stated that the boat was fast, and he told the agents about his own experience smuggling marijuana. Peters stated that "cocaine is the thing here" and that he was interested in all of the spaces on the boat where he could "put some kilos," which were worth "eighteen thou" per kilo. Demarest expressed interest in being a member of Peters's crew, continued to boast about his experience running drugs, and stated that he had never been stopped by the Coast Guard, perhaps because he used women and children on board as distractions.
Coleman told Demarest that Rodda "was scared" of the agents, and Demarest responded that Rodda had previously served time related to drug charges and did not want to lose his brokerage license. Demarest also told the agents that his "old lady snagged some of [Rodda's] dope on [their] last run." Demarest told the agents that he would not tell Rodda that the agents were drug smugglers but would share his commission with Rodda. Demarest stated that he could distinguish federal agents from real drug runners by the kind of car agents drive and that he was "in the same camp" as they were. After the agents exchanged contact information with Demarest, they left and called Rodda to ask whether he wanted to participate in the transaction. Rodda declined, and the Internal Revenue Service terminated its investigation of him.
On November 11, 2005, Coleman called Demarest to say that his boss had approved the boat purchase. The deal was postponed until later that month because of Hurricane Wilma. On November 21, 2005, Coleman met Demarest at the yacht sales company that Demarest owned, Parrot & Herst Yacht Sales, with $18,000 in cash as a down payment. Coleman stated that his boss would pay the asking price for the boat, $179,000. Demarest suggested that Coleman call the Delaware corporation that would purchase the boat "Sand and Sea Charters[,]" and he referred Coleman to a documentation company to establish the corporation. Demarest explained that he ordinarily "just made up a name" for the individual who formed the company.
During the same meeting, Demarest told Coleman that he had been "drunk as a hoot" when he first showed the agents the boat and had "said more than [he] ever wanted to say." Demarest said he could not be a member of a smuggling crew because he was "too old." Coleman asked Demarest whether he had told the owner of the boat that the purchasers were "in the dope business[,]" and Demarest said he had not. Demarest expressed concern that Coleman was "in the federal business" but proceeded with the arrangements for the deal. Demarest and Coleman agreed that "it was imperative that neither of their names appear on a wire transfer to the bank of funds in excess of $9,999[,]" and Demarest told Coleman to supply a name and identification, "phony or not[,]" for the corporate documents. Demarest and Coleman counted the $18,000, and Demarest told Coleman that he would probably keep only $1,000 of his commission after paying debts. After the men counted the money, Demarest provided Coleman the documents to establish the corporation and told him how to "fudge this up."
Eight days later, Coleman and Demarest spoke by telephone. Because Coleman had not yet received approval for the cash he needed to complete the transaction, he told Demarest that he needed to delay the deal because he had been injured in a car accident. Over the next several days, Demarest left numerous voice-mail messages for Coleman and suggested that he had another buyer for the boat if Coleman was unable to complete the purchase. Demarest also told Coleman that he would travel to Coleman's bank in Hilton Head, South Carolina, if that was necessary to close the deal.
On December 7, Coleman and Demarest again spoke by telephone. Demarest told Coleman that he "really want[ed] to make this thing happen" because he was "in the weeds" from having lost half his inventory in Hurricanes Katrina and Wilma. Demarest described "Sand and Sea Charters" as a "cartoon name" for the putative purchaser of the boat, and he and Coleman agreed to provide a "Mickey Mouse" social security number for the corporate documents. In a different conversation later that day, Demarest confirmed that the owner of the boat would accept cash at the closing.
On December 13, Coleman and Demarest met at Parrot & Herst, and Coleman paid Demarest $8,000 in cash. Demarest told Coleman that he would find out what Coast Guard documents would be required at the closing and whether a "Mickey Mouse" signature would work or a "real body" would be necessary. Coleman and Demarest agreed to tell the documentation service that the purchaser did not want to be present at closing.
On December 16, Coleman and Demarest spoke by telephone, and Coleman provided Demarest the name, address, and social security number of the putative president of Sand and Sea Charters. The information belonged to Michael Pratt, another federal agent. Coleman and Demarest arranged to meet the owner of the boat before closing to pay the balance due on the boat, $155,000. Demarest again told Coleman that the owner had no idea as to the true source of the money. Three days later, Coleman and Demarest again spoke by telephone, and Demarest told Coleman that Pratt's signature would be required at the closing. Coleman told Demarest that Pratt was an old school friend and that Coleman would forge the...
To continue reading
Request your trial
-
United States v. Svete
...be retroactively applicable to the situation in his case, is foreclosed by the Eleventh Circuit's decision in United States v. Demarest, 570 F.3d 1232, 1242 (11th Cir. 2009). The Demarest court noted the narrow holding of Santos and declined to extend it any further than an unlicensed gambl......
-
United States v. Bansal
...States v. Quinones, 635 F.3d 590, 600 (2d Cir.2011); United States v. Spencer, 592 F.3d 866, 880 (8th Cir.2010); United States v. Demarest, 570 F.3d 1232, 1242 (11th Cir.2009). Finally, the government contends that under our plain error standard of review, which we must apply because the de......
-
United States v. Gross
...more chemicals was proceeds from prior completed smuggling activity. Gross relies for his merger argument on the concurrence in United States v. Santos, in which Justice Stevens stated that "[a]llowing the Government to treat the mere payment of the expense of operating an illegal gambling ......
-
United States v. Tobin
... ... 671, 68687, 95 S.Ct. 1255, 1265, 43 L.Ed.2d 541 (1975). Separately, the government urges us to rely on United States v. Muncy, 526 F.2d 1261, 1264 (5th Cir.1976). Both of these cases, ... at 2033 (Stevens, J., concurring in the judgment). In United States v. Demarest, 570 F.3d 1232 (11th Cir.2009), we recognized that the Supreme Court's decision in Santos was ... ...