659 F.3d 194 (1st Cir. 2011), 10-1651, United States v. Neto

Docket Nº:10-1651.
Citation:659 F.3d 194
Opinion Judge:TORRUELLA, Circuit Judge.
Party Name:UNITED STATES of America, Appellee, v. Jos
Attorney:David Shaughnessy, for appellant. Mark T. Quinlivan, Assistant United States Attorney, with whom Carmen M. Ortiz, United States Attorney, was on brief for appellee.
Judge Panel:Before LYNCH, Chief Judge, TORRUELLA and HOWARD, Circuit Judges.
Case Date:October 25, 2011
Court:United States Courts of Appeals, Court of Appeals for the First Circuit

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659 F.3d 194 (1st Cir. 2011)

UNITED STATES of America, Appellee,


José NETO, a/k/a " Zezao," Defendant, Appellant.

No. 10-1651.

United States Court of Appeals, First Circuit.

October 25, 2011

Heard June 9, 2011.

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David Shaughnessy, for appellant.

Mark T. Quinlivan, Assistant United States Attorney, with whom Carmen M. Ortiz, United States Attorney, was on brief for appellee.

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Before LYNCH, Chief Judge, TORRUELLA and HOWARD, Circuit Judges.

TORRUELLA, Circuit Judge.

In 2006, Appellant José Neto (" Neto" ) was convicted of various immigration-related crimes, including harboring five illegal aliens from Brazil. After his trial, but before his sentencing, Neto was indicted in a new criminal case for smuggling those same five aliens into the United States. Neto was sentenced to five years' imprisonment for the first set of crimes in 2007. Neto's first sentence expired in 2009, while he was awaiting trial on his second indictment. Neto moved to dismiss the second indictment on the ground that it constituted a successive prosecution in violation of his Due Process rights under the Fifth Amendment. The district court denied the motion to dismiss, and Neto was later found guilty and sentenced to another five years' imprisonment. Neto now appeals the second conviction and sentence. Because we find no constitutional violation in Neto's second conviction or sentence, we affirm.

I. Background

A. Smuggling Operation1

Neto's smuggling operation began sometime in 2003 and continued until roughly March 2005. Neto and his co-conspirator, José Neves (" Neves" ), recruited men from rural Brazil and, for a $10,000 fee, agreed to smuggle them into the United States and find jobs for them. Between twenty-five and thirty aliens came to the United States via this scheme. Neto employed many of the aliens at Spectral Cleaning Service (" Spectral" ), a company he purchased in 2004. Spectral had a contract to clean the floors of various grocery stores in Massachusetts and Connecticut. Neto collected any outstanding smuggling fees by deducting the money from the aliens' paychecks; Neto also charged the aliens 5% interest per month.

In September of 2004, Neto was called into the offices of the Bureau of Immigration and Customs Enforcement (" ICE" ) for an interview. During the interview, ICE officials determined that Neto, himself a Brazilian national, was in the United States illegally and informed Neto that he would be deported. Neto offered an ICE official a $10,000 bribe for a green card for himself and another $10,000 for a green card for his wife, also an illegal alien. The official notified ICE of the bribery attempt, and ICE set up an undercover operation in which Neto was led to believe that he could pay cash for immigration-related favors for himself and others. Over the course of the next six months, Neto paid undercover ICE agents $167,100 in bribes. During this period, ICE agents also uncovered evidence of Neto's and Neves's smuggling and harboring of illegal aliens.

B. Arrest and Trial in Neto I

Neto was arrested on March 16, 2005. That same day, ICE agents raided grocery stores in western Massachusetts and detained many Spectral employees. On April 12, 2005, a federal grand jury returned a 36-count indictment in the first criminal case against Neto, referred to hereafter as " Neto I. " Only nine of the thirty-six counts alleged bribery; the remaining counts were: (1) twenty-three counts of inducing aliens to reside in the United States illegally, in violation of 8 U.S.C. § 1324(a)(1)(A)(iv); (2) three counts of harboring illegal aliens, in violation of

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8 U.S.C. § 1324(a)(1)(A)(iii); and (3) one count of hiring illegal aliens, in violation of 8 U.S.C. § 1324A. On January 10, 2006, the United States obtained a superseding indictment that added five new counts of harboring illegal aliens and one new count of employing illegal aliens.2 Neto pled guilty to most counts of the indictment, but elected to go to trial on all eight harboring counts. The trial on the harboring counts began on May 8, 2006. Although the indictment in Neto I did not charge smuggling, the trial included testimony about the smuggling operation in furtherance of proving the harboring charge. On May 10, 2006, the jury found Neto guilty on six of the eight harboring counts.

On January 23, 2007, the court sentenced Neto to 60 months in prison for the harboring and bribery counts. This sentence represented a downward departure from the recommended range of 78 to 97 months under the United States Sentencing Guidelines. The United States had opposed a downward departure because of the exploitative nature of Neto's scheme: Neto forced his employees at Spectral to work 363 days per year, and admitted that he extorted high interest payments from those he harbored by threatening to kill their relatives in Brazil.

C. Procedural History of Neto II

On October 25, 2006, after the conclusion of the Neto I trial but before sentencing, the government obtained an indictment in a second criminal case, referred to hereafter as " Neto II, " which underlies the present appeal. Unlike the indictment in Neto I, the indictment in Neto II included Neves as a co-defendant. The indictment charged Neto and Neves with one count of conspiracy to smuggle aliens for profit and to induce aliens to reside in the United States illegally and five counts of smuggling aliens for profit, in violation of 8 U.S.C. § 1324(a)(2)(B)(ii).3 The aliens who were the subjects of the five smuggling counts were five Brazilian men who had been the subjects of harboring counts for which Neto was convicted in Neto I.

The Neto II indictment was initially sealed because Neves was a fugitive. Thus, the government did not disclose the indictment to the Neto I trial judge prior to Neto's sentencing. However, on July 30, 2007, ICE agents located Neves in Florida and arrested him. The indictment in Neto II was unsealed the same day. Neto was arraigned on September 12, 2007. Neto's sentence in Neto I expired on July 22, 2009, while Neto was awaiting trial in Neto II . On October 29, 2009, Neto filed a motion to dismiss the indictment in Neto II, arguing that prosecution in Neto II would be fundamentally unfair and would thus violate his Due Process rights under the Fifth Amendment.

Neto raised two primary arguments in his motion to dismiss. First, Neto contended that because the United States would seek to convict him for smuggling in Neto II using essentially the same facts at issue in the harboring claims against him in Neto I, the government should have tried the smuggling and harboring cases together in Neto I. Second, Neto argued that a second prosecution would be unfair because of the " draconian sentencing outcome" that would result. Neto contended that under the sentencing guidelines, if he had been prosecuted for the smuggling and harboring charges in the same proceeding, he would have received a concurrent

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five-year sentence for both charges. However, because he was now being prosecuted for smuggling after his original sentence had expired, and because the smuggling charge carried a five-year statutory minimum sentence, he would be subjected to an additional five years in prison.

In response, the government argued that the validity of the Neto II prosecution had to be analyzed under the Double Jeopardy Clause of the Fifth Amendment, rather than...

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