United States v. Alaniz

• Decision Date: 29 July 2013
• Docket Number: 11–41392.,Nos. 11–41376,s. 11–41376
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Norberto ALANIZ; Josefina Galaviz; Mayra Lopez; Yesica Magana; Leandro Salas–Galaviz, also known as Daniel Obregon, also known as Lic, Defendants–Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

726 F.3d 586

UNITED STATES of America, Plaintiff–Appellee,

v.Norberto ALANIZ; Josefina Galaviz; Mayra Lopez; Yesica Magana; Leandro Salas–Galaviz, also known as Daniel Obregon, also known as Lic, Defendants–Appellants.

Nos. 11–41376, 11–41392.

United States Court of Appeals,Fifth Circuit.

July 29, 2013.

John Richard Berry, Assistant U.S. Attorney, Renata Ann Gowie, Assistant U.S. Attorney, U.S. Attorney's Office, Houston, TX, for Plaintiff–Appellee.

Roberto Balli, Attorney, Jose Luis Castillo, Esq., Hernandez & Castillo, P.C., Oscar A. Vela, Jr., Esq., Attorney, Law Office of Oscar A. Vela, Jr., P.C., Laredo, TX, Margaret Loraine Schmucker, Austin, TX, Seth Kretzer, Law Offices of Seth Kretzer, Houston, TX, for Defendants–Appellants.

Appeals from the United States District Court for the Southern District of Texas.

Before STEWART, Chief Judge, and BENAVIDES and HIGGINSON, Circuit Judges.

CARL E. STEWART, Chief Judge:

Defendants–Appellants, Salas–Galaviz (“Salas”), Alaniz, Lopez, Galaviz, and Magana appeal their convictions and sentences for drug trafficking, money laundering, and conspiracy thereof.¹ For the reasons provided herein, we wholly AFFIRM Alaniz's convictions and sentences. Due to a Sentencing Guidelines error conceded by the government, we VACATE the sentences of Salas and the ML Appellants as to Count 10 only, and REMAND for re-sentencing. We otherwise AFFIRM the convictions and sentences in full.

BACKGROUND

A. Salas

Salas is an illegal immigrant from Mexico who cannot speak or understand English. During most of the period at issue in this case, Salas resided in Laredo, Texas, where he used an “assumed Social Security number” and the criminal alias “Daniel Obregon.” Salas was apprehended in January 2010 as part of the joint DEA/IRS “Operation Reload,” which targeted U.S. appendages of the Mexican drug cartels, Los Zetas and the Gulf Cartel.

Salas was convicted of running a large-scale cocaine and marijuana trafficking operation out of Laredo—an epicenter of U.S.-Mexico drug trafficking—while ostensibly working as a Spanish-language car salesman. Before moving to Laredo and displaying sudden, large amounts of wealth, Salas worked behind the counter at a Krispy Kreme Doughnuts in Dallas. The district court found that Salas moved from Dallas to Laredo, at the behest of Los Zetas and the Gulf Cartel, where he organized and led a drug trafficking operation from the Laredo border to various points throughout the United States.

B. Alaniz

Alaniz, who is not related to Salas, was one of more than two-dozen individuals who worked for Salas as a drug transporter.² He was apprehended in Texas on July 18, 2006 with a tractor-trailer full of drugs. Alaniz previously was convicted of similar drug trafficking offenses to those charged in this case.

C. The ML Appellants

Lopez is Salas's wife, Galaviz is Salas's mother, and Magana is Salas's younger sister. The three laundered drug trafficking proceeds for Salas.

Lopez lived with Salas in Laredo, while Galaviz lived with Magana in the vicinity of Dallas. Magana claimed Galaviz as a federal tax dependant.

D. The Money Laundering Conspiracy

To launder his drug trafficking proceeds, Salas ran a sham construction company called “LC Contractors.” Lopez ran a sham import-export business called “Via Italia Devine.” Galaviz bought and sold real estate, and Magana bought and sold motor vehicles.

In all, Salas accrued $1,913,937 in drug trafficking proceeds between 2002 and 2009, which he and the ML Appellants laundered through 38 bank accounts. Lopez, Galaviz, and Magana were apprehended with Salas in January 2010.

E. Procedural History

On June 8, 2010, Appellants were charged by a sixteen-count indictment. Appellants proceeded to a joint jury trial, where the prosecutor, in part, relied on the testimony of confidential informants, Ester Ramirez and Roberto Garcia.³

Collectively, Appellants were convicted on thirteen of the sixteen counts. Salas was sentenced to life imprisonment, Alaniz to 30 years imprisonment, and each of the ML Appellants to 11 years, 3 months imprisonment. ⁴ In addition to the prison terms, the district court imposed substantial fines and forfeitures.

DISCUSSION

I. Sufficiency of the Evidence Challenges

The ML Appellants all raise sufficiency of the evidence challenges on appeal, with respect to both their conspiracy and substantive money laundering convictions. All three were convicted of conspiracy under Count 10 of the indictment. Lopez was convicted of substantive money laundering under Count 11, Galaviz under Counts 13 and 14, and Magana under Count 12.

Upon review, we conclude the evidence was plentiful that all three Appellants (i) experienced sudden wealth in the form of property valued at more than $10,000; (ii) knew the property came from Salas's unlawful drug trafficking; and (iii) implicitly agreed to launder the property in order to facilitate Salas's trafficking.

A. Standard of Review

“This court reviews preserved challenges to the sufficiency of the evidence de novo.” United States v. Grant, 683 F.3d 639, 642 (5th Cir.2012) (citation omitted).⁵ “When reviewing the sufficiency of the evidence, we view all evidence, whether circumstantial or direct, in the light most favorable to the government, with all reasonable inferences and credibility choices to be made in support of the jury's verdict.” United States v. Ford, 558 F.3d 371, 375 (5th Cir.2009) (per curiam) (citation omitted).

“A jury is free to choose among reasonable constructions of the evidence.” United States v. Pigrum, 922 F.2d 249, 254 (5th Cir.1991). “It is not necessary that the evidence exclude every rational hypothesis of innocence or be wholly inconsistent with every conclusion except guilt, provided a reasonable trier of fact could find the evidence establishes guilt beyond a reasonable doubt.” United States v. Valdez, 453 F.3d 252, 256 (5th Cir.2006) (citation and internal quotation marks omitted).

In all, this Court's “inquiry is limited to whether the jury's verdict was reasonable, not whether we believe it to be correct.” United States v. Moreno–Gonzalez, 662 F.3d 369, 372 (5th Cir.2011) (citation and internal quotation marks omitted). This inquiry “is highly deferential to the verdict.” United States v. Harris, 293 F.3d 863, 869 (5th Cir.2002).

“Circumstantial evidence may establish the existence of a conspiracy, as well as an individual's voluntary participation in it, and circumstances altogether inconclusive, if separately considered, may, by their number and joint operation ... be sufficient to constitute conclusive proof.” United States v. Fernandez, 559 F.3d 303, 315 (5th Cir.2009) (citations and internal quotation marks omitted) (alterations in original).

B. Applicable Law

1. Conspiracy Charges

Count 10 charged the three ML Appellants, as well as Salas, with: (i) the concealment of drug trafficking proceeds; (ii) in order to avoid a reporting requirement; (iii) by moving funds outside the United States and engaging in monetary transactions of a value greater than $10,000 through a financial institution. This amounted to a charge for conspiracy to commit money laundering in violation, inter alia, of 18 U.S.C. § 1956(h).

The elements of a conspiracy to commit money laundering, in violation of 18 U.S.C. § 1956(h), are: (i) “that there was an agreement between two or more persons to commit money laundering”; and (ii) “that the defendant joined the agreement knowing its purpose and with the intent to further the illegal purpose.” United States v. Fuchs, 467 F.3d 889, 906 (5th Cir.2006) (citations omitted). “The government need not prove an overt act in furtherance of the conspiracy.” Id. (citing Whitfield v. United States, 543 U.S. 209, 219, 125 S.Ct. 687, 160 L.Ed.2d 611 (2005)).

“It is settled law that conspiring to commit a crime is an offense wholly separate from the crime which is the object of the conspiracy.” United States v. Threadgill, 172 F.3d 357, 367 (5th Cir.1999) (citation omitted). “Thus, we have consistently held that a conspiracy charge need not include the elements of the substantive offense the defendant may have conspired to commit.” Id. (citations omitted). “Evidence that a defendant's cash outflow in a financial transaction exceeds [her] legitimate income is sufficient to show that the transaction involves the proceeds of specified unlawful activity, even if the defendant claims income from other sources.” United States v. Westbrook, 119 F.3d 1176, 1191 (5th Cir.1997) (citation and internal quotation marks omitted).

2. Substantive Money Laundering Charges

Count 11 charged Lopez with knowingly laundering $15,000 in unlawfully derived property from a Wells Fargo account on April 17, 2007. Count 13 charged Galaviz with knowingly laundering $30,000 in unlawfully derived property, by means of a Laredo National Bank cashier's check, on or about January 23, 2008. Count 14 charged Galaviz with knowingly laundering $48,304.31 in unlawfully derived property, by means of a check drawn from BBVA Compass Account No. 1782, on or about April 17, 2008. Count 12 charged Magana with knowingly laundering $15,000 in unlawfully derived property, on or about March 29, 2007, by making a payment on Salas's house in Laredo using a check drawn on Chase Account No. 7697. These amounted to charges for money laundering in violation, inter alia, of 18 U.S.C. § 1957(a).

The elements of money laundering, in violation of 18 U.S.C. § 1957(a), are: (i) “property valued at more than $10,000 that was derived from a specified unlawful activity”; (ii) “the defendant's engagement in a financial transaction with the property”; and (iii) “the defendant's knowledge that the property was derived from unlawful activity.” Fuchs, 467 F.3d at 907 (citations omitted).⁶

“Unlawfully” or “criminally derived property” is “property constituting, or derived from, proceeds obtained from a criminal offense,” such as drug trafficking. See18 U.S.C. § 1957(f)(2). A “financial” or “monetary...