U.S. v. Delgado

• Citation: 653 F.3d 729
• Decision Date: 02 September 2011
• Docket Number: No. 09–3969.,09–3969.
• Parties: UNITED STATES of America, Appellee,v.Juan DELGADO, Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

653 F.3d 729

UNITED STATES of America, Appellee,

v.Juan DELGADO, Appellant.

No. 09–3969.

United States Court of Appeals, Eighth Circuit.

Submitted: March 18, 2011.Filed: Sept. 2, 2011.

Robert Ramos, El Paso, TX, argued, for appellant.Jane Pansing Brown, Asst. U.S. Atty., Kansas City, MO, argued (Beth Phillips, U.S. Atty., Gregg R. Coonrod, Asst. U.S. Atty., on the brief), for appellee.Before RILEY, Chief Judge, LOKEN and COLLOTON, Circuit Judges.COLLOTON, Circuit Judge.

A jury convicted Juan Delgado of one count of conspiring to distribute five kilograms or more of cocaine, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), and 846, four counts of distribution of less than five hundred grams of cocaine, in violation of 21 U.S.C. § 841(a)(1) and 841(b)(1)(C), one count of conspiracy to commit money laundering, in violation of 18 U.S.C. § 1956(a)(1)(A)(i), 1956(a)(1)(B)(i)-(ii), 1956(h), and 1957, and four counts of money laundering, in violation of 18 U.S.C. § 1956(a)(1)(B)(i)-(ii) and 2. The district court ¹ sentenced him to 360 months' imprisonment on count one, and 240 months' imprisonment on each of the other counts, with the terms to run concurrently. Delgado appeals his conviction, arguing that there was a prejudicial variance between the indictment and the evidence presented at trial. He also asserts that there was insufficient evidence to sustain his convictions for distribution of cocaine, conspiracy to commit money laundering, and money laundering. We affirm.

I.

In 2005, state and federal law enforcement began an investigation of suspicious financial transactions and cocaine distribution involving Delgado and the Super Pollo restaurant, an establishment in Kansas City, Missouri, owned by Delgado and his wife, Sylvia Delgado. The investigation resulted in a nineteen-count indictment, charging Delgado and eleven others with conspiracy to distribute cocaine, Delgado and five others with conspiracy to launder money, and Delgado with distribution of cocaine and money laundering. The case proceeded to trial against four defendants: Delgado, Sylvia Delgado, Luis Morgan, and Omar Villareal.

Viewed in the light most favorable to the jury's verdict, the evidence at trial revealed that Delgado and twelve coconspirators engaged in a large-scale cocaine distribution scheme from 2002 through 2007. Fernando Chavez, a resident of Juarez, Mexico, was the cocaine supplier for the conspiracy. The distribution followed a general pattern: Chavez distributed cocaine to Delgado and coconspirator Jose Estrada, who then distributed it to other conspirators for sale in and around Kansas City.

Between January and September 2006, a confidential informant and undercover Detective William Corbin made four separate purchases of powder cocaine from Delgado, totaling approximately one kilogram. Three of the four purchases were recorded on audiotape; one was also recorded on videotape. After the purchases, officers obtained seven orders authorizing interception of communications through wiretap. The wiretaps were ordered for three of Delgado's telephones, and one telephone each for coconspirators Estrada, Chavez, Villareal, and Raymond Sparks. At trial, the government played over forty recorded telephone conversations, and coconspirators Cruz Santa–Anna, Jose Canales, and Sparks testified about details of the recorded conversations. Several officers also testified about telephone calls intercepted pursuant to the wiretaps, including calls that led them to conduct surveillance of suspected drug transactions. This surveillance resulted in evidence that implicated Estrada, Carlos Hernandez, Santa–Anna, and Jose Ortega–Gallagos in drug transactions.

On August 27, 2006, a U.S. Border Patrol agent near the Mexican border stopped to assist Estrada, who appeared to be a stranded motorist. The agent obtained consent to search Estrada's vehicle and found approximately $460,000 in cash and a “drug ledger” inside of a hidden compartment. The drug ledger listed the nicknames of Sparks, Estrada, and Delgado next to numerical figures.

On April 10, 2007, officers executed a search warrant on Delgado's residence. During the search, police found approximately $140,000 in U.S. currency, some of it wrapped in cellophane and hidden in various locations, including behind a false wall. Officers also found a semi-automatic handgun, a small amount of cocaine, and a money counter.

Sparks and Santa–Anna testified for the government as cooperating witnesses. Sparks testified that he dealt cocaine with Morgan, but when Morgan went to jail, he introduced Sparks to Delgado and Villareal. Sparks stated that between October 2006 and March 2007, he purchased cocaine from Delgado and Villareal for resale to other individuals, including coconspirators. Santa–Anna testified that he bought cocaine from Delgado from 2001 until 2003, and that he met Villareal through Delgado. He explained that he eventually began to buy directly from Villareal, who was obtaining the cocaine from Delgado. He testified that around 2005, he began buying cocaine from Estrada, who obtained it directly from Chavez, because Estrada was selling it at a cheaper price than Delgado.

The money laundering charges involved four real estate transactions: Delgado's purchase of 328 Lawndale, Kansas City, Missouri; Delgado's purchase of two tracts of real estate from Canales, Hastain Acres and El Lago Lodges; and the purchase of 412 North Chelsea Avenue, Kansas City, Missouri, by Santadelg Properties, LLC (“Santadelg”), a company formed by Sylvia Delgado. The government presented testimony about these transactions from several witnesses, including an Internal Revenue Service (“IRS”) agent, a Drug Enforcement Administration (“DEA”) financial investigator, bank and closing company employees, Santa–Anna, and Canales. The government corroborated this testimony with financial records, property records, and recorded phone conversations.

DEA Financial Investigator Robert Hawkins testified that if a person purchases monetary instruments, including cashier's checks and money orders, totaling $10,000 or more, there is a federal reporting requirement. He explained that the seller of the instrument is required to fill out a currency transactions report, which contains information about the purchaser, including the person's name, date of birth, address, and Social Security number. The report is sent from the seller to the federal government. Hawkins testified that, in layman's terms, money laundering occurs when an individual conducts a financial transaction with illegal proceeds in a way that attempts to make the money look like something other than illegal proceeds.

The government produced testimony that explained what occurs generally at a real estate closing transaction conducted by a closing company. After determining the contract sales prices and the amount needed to pay off debt owed on the property, such as liens and judgments, and the closing costs (costs charged by the closing company for the services it provides), the company prepares an accounting, set forth in closing statement, of what each person must pay to effectuate the sale. At a closing, the seller and buyer provide funds equal to the amount that the statement reflects each party owes to complete the transaction. An employee from the company then fills out a deposit slip for any financial instruments and cash used by the parties. An employee also makes copies of the instruments and cash used in the transaction.

The first transaction at issue involved Delgado's purchase of the Lawndale property on September 15, 2003. On this date, Delgado purchased with cash two cashier's checks for $7500 and $7797.10. Delgado made the two purchases within a few hours of each other from separate banks in which he did not have an account. At the time, Delgado had a personal bank account at a third bank with over $150,000 of available funds. Delgado used the cashier's checks at the closing to purchase the property.

On October 5, 2005, Delgado purchased the Hastain Acres property from Canales. The documented sales price of the property was $110,000. At the closing, Canales brought fifteen cashier's checks and money orders, along with $4000.67 in cash, to pay approximately $47,000 that he owed for the existing mortgage, federal tax liens, and closing costs. Delgado and Canales purchased eleven of the fifteen cashier's checks and money orders on October 4 and 5, 2005, from seven different locations. These eleven cashier's checks and money orders totaled approximately $40,000, and each was for an amount under the $10,000 federal reporting requirement. Delgado provided the funds for the purchase of these cashier's checks and money orders, and Delgado retrieved part of the cash used in the purchases from a slit-open tire located in the trunk of Delgado's vehicle.

To pay the amount Delgado owed for the transaction, Delgado brought a cashier's check for $59,750.20, and financed the remainder by executing a deed of trust to Canales for $50,000. A deed of trust is recorded in the property records, and here, it established that Delgado owed Canales $50,000 and that the debt was secured by Hastain Acres. Delgado satisfied the deed of trust later that day by paying Canales $30,000 cash and forgiving a previous loan of $20,000. Canales explained that neither party reported that the deed of trust had been satisfied, because they intended to report that Delgado had made $2000 payments to Canales each month until the deed of trust had been satisfied, rather than try to explain the sudden appearance of $30,000 in cash. Delgado had Canales sign predated receipts for each month's “payment.”

IRS Special Agent Jeff Thomas testified that around the time of the Hastain Acres transaction, Delgado's deposits into his bank accounts, including a bank account owned by the Super Pollo restaurant, remained consistent and that the total amount of cash withdrawn from the...