United States v. Guevara

• Citation: 894 F.3d 1301
• Decision Date: 11 July 2018
• Docket Number: No. 15-14146,15-14146
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Geovanys GUEVARA, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

894 F.3d 1301

UNITED STATES of America, Plaintiff-Appellee,

v.Geovanys GUEVARA, Defendant-Appellant.

No. 15-14146

United States Court of Appeals, Eleventh Circuit.

July 11, 2018

Andrea G. Hoffman, Elijah A. Levitt, Lisette Marie Reid, Wifredo A. Ferrer, Emily M. Smachetti, U.S. Attorney Service—SFL, MIAMI, FL, for Plaintiff-Appellee.

George J. Vila, Law Office of George J. Vila, Esq., CORAL GABLES, FL, for Defendant-Appellant.

Before TJOFLAT and WILSON, Circuit Judges, and ROBRENO,^* District Judge.

ROBRENO, District Judge:

Following a trial in the United States District Court for the Southern District of Florida, a jury found Defendant-Appellant Geovanys Guevara guilty of violating 31 U.S.C. § 5324(b)(2) and 18 U.S.C. § 2 by causing or attempting to cause Sanfer Sports Cars, Inc., a car dealership in Miami, to file certain Form 8300s with the United States Treasury Department that contained material omissions and misstatements of facts concerning Guevara's identity as the individual who provided cash payments of over $10,000 for the purchases of each of three sports cars. Guevara now appeals his convictions and 48-month prison sentence.

We affirm Guevara's convictions upon finding that the evidence, though circumstantial only, was sufficient to support the jury's verdict. We remand with instructions to resentence Guevara, however, based on our conclusion that the district court failed to make and explain factual findings that adequately support the application of a two-level sentencing enhancement for obstruction of justice.

I.

The Bank Secrecy Act requires any person who is engaged in a nonfinancial trade or business to file with the United States Treasury Department a report of any cash payment over $10,000 received by the trade or business. See 31 U.S.C. § 5331. This report, known as a FinCEN Form 8300, requires the trade or business to verify and record the name and address of the person from whom the cash payment was received, along with the identity, Social Security number, and taxpayer identification number of any person or entity on whose behalf the transaction and cash payment was to be effected.

Prior to the indictment in this case, law enforcement officers from the Internal Revenue Service ("IRS") visited Guevara's home on May 21, 2014, to interview Guevara regarding the ownership of a certain Porsche, Ferrari, Lamborghini, and Rolls Royce, all of which had been purchased from Sanfer for cash. The Form 8300s submitted to the IRS listed an individual named Elvis Quiroga ("E.Q") as the individual who had provided over $10,000 in cash for the purchase of each of these cars.

Initially, when the officers spoke with Guevara in the presence of his wife, Guevara lied to the officers about his purchases and ownership of these four vehicles. Several minutes later, however, after Guevara and the officers moved away from Guevara's wife, he admitted that he had lied while speaking in her presence. Guevara further admitted that he was, in fact, the true owner of all the vehicles, that the titles to all the vehicles had been placed in the name of Guevara's friend, E.Q., and that the owner of Sanfer, Carlos Santisteban ("Santisteban"), knew that Guevara was paying for these vehicles and was their true owner. Specifically, Guevara claimed that, for each transaction, he had visited Sanfer, chosen the vehicle, paid for the vehicle using money from a therapy clinic he owned, and then instructed E.Q. to go to the dealership and become the registered owner of the vehicle. For each purchase except the Lamborghini, Guevara stated that he had paid E.Q. $1,000 to take title to the car.

Trial commenced on June 1, 2015. The Government's first witness was E.Q., who had known Guevara for approximately ten years. E.Q. testified that he had agreed to put the titles to four of Guevara's vehicles in his name because the two were good friends who "got along ... very well." Trial Tr. 132 at 12-13. For each of the four cars, E.Q. testified that Guevara had paid him $1000 to go to Sanfer and take title to the car. E.Q. further testified that he had never indicated to anyone at Sanfer that he was purchasing the cars, or that Guevara was purchasing the cars for him. Finally, E.Q. testified that he did not know how Guevara had paid for any of the cars, and that he, E.Q., never received any copies of the paperwork filed for the purchase of the cars. The paperwork E.Q. never received included letters addressed to E.Q. at his home address, stating, for each of the Ferrari, Lamborghini, and Rolls Royce, that "[i]n compliance [with] IRS reporting standards we have submitted the [Form 8300] to the Department of Treasury for the above mentioned transaction." Gov't Exs. 7B, 7C, 7D.

While questioning E.Q., the Government moved its Exhibit 1 into evidence. Exhibit 1 was a set of five computer-generated summaries created by an unidentified IRS employee on an unidentified date and time. The one-page certification accompanying these summaries stated the following under the heading "CERTIFICATE OF OFFICIAL RECORD":

I certify that the annexed records were retrieved at my direction, and are true and complete transcripts of information reported on IRS/FinCEN Form 8300 (OMB No. 1545-0892/1506-BSA Identification Numbers: 31000019592832, 31000026273057, 31000027204734, 31000036312176 and 31000055261633, under the custody of this office.

Gov't Ex. 1. The certification was signed by "Linda K. Gammon, Chief Law Enforcement Support Section." The trial court admitted Exhibit 1 into evidence without objection.

The next Government witness was a man named Ebian Boza, who had been a car salesman at Miami Lakes Auto Mall in February 2013, when Guevara had purchased a Camaro for cash there. Boza testified that he had advised Guevara at that time that "[e]very time you buy a car, if you pay in cash more than $10,000.00, you have to sign a form for the IRS." Trial Tr. 130 at 60:24-25; 61:1-2.

The Government then called Officer Azael Acay of the City of Hialeah Police Department and Police Officer Joseph Miller, each of whom testified that they had conducted separate routine traffic stops of Guevara while he was driving a Rolls Royce. Later, the Government read a stipulation into the record that witness Sulkary Herbas, if called to testify, would state that, between April 2013 and September 2013, she observed Guevara driving both the Lamborghini and the Rolls Royce.

The Government's next witness was Miami-Dade Police Officer Ulysses Lopez, who had acted as an interpreter for IRS Agent Harlan Daar when Agent Daar interviewed Guevara outside of his residence regarding vehicles purchased from Sanfer. Officer Lopez testified that his report reflected that Guevara had made a photo identification of Santisteban; Guevara had told the officers that he had told Santisteban that he was going to buy cars and put them in E.Q.'s name; Santisteban knew that Guevara was the true owner of the vehicles that he purchased; and Santisteban knew that the money to buy the vehicles came from Guevara.

The Government then called Special Agent Vincent Joseph Lozowicki, who testified that he had reviewed and analyzed Guevara's financial records from Ocean Bank and Bank of America. Lozowicki used these records to complete an income restructuring for Guevara, which is a method of verifying a person's income when no official records exist. This restructuring showed Guevara's income as $118,350 for 2009, $69,557 for 2011, and $323,488 for 2013. These amounts notwithstanding, Guevara had applied for and received a low income tax credit during each of these years.

The Government's final witness was Agent Daar, who testified about his interview of Guevara outside of Guevara's house prior to the indictment. He testified that once Guevara was comfortable speaking out of the presence of his wife, he had not hesitated to admit that he was the true owner and purchaser of the Rolls Royce, the Lamborghini, the Porsche, and the Ferrari. Guevara also had described to Agent Daar the procedure he had used to make each purchase.

Agent Daar was next asked general questions concerning the filing of Form 8300s. When asked whose responsibility it was to file the forms, he responded that it is the responsibility of the "trader" who receives the cash. Additionally, Agent Daar testified that the form requires the name of the person who actually gives the cash, the date the cash is received, the amount of cash received, and information about the business receiving the cash and the individual filling out the form. He also testified that Guevara did not have to sign the forms that were completed and sent to the IRS by Sanfer.¹ On cross-examination, Agent Daar testified that he had never asked Guevara any questions regarding the Form 8300s.²

At the conclusion of the Government's case-in-chief, Guevara moved for judgment of acquittal. The motion was denied. The defense rested without calling any witnesses or presenting any evidence—and then moved again for judgment of acquittal, which was again denied. Ultimately, the jury found Guevara guilty as to Counts 2, 3, and 4 of the indictment.³

On June 12, 2015, Guevara filed two additional motions for judgment of acquittal: one based on his assertion that the Government had failed to introduce the actual Form 8300s or certified copies thereof, and one arguing insufficiency of the evidence. The Government opposed the motions for judgment of acquittal on June 25, 2015, and the trial court denied the motions on August 24, 2015.

The Probation Office issued a Presentence Investigation Report ("PSI"). Applying the 2014 Sentencing Guidelines Manual, Guevara's base offense level as to Counts 2-4 was set at 18, pursuant to U.S.S.G. § 2S1.3(a)(2).⁴ The Probation Office recommended a two-level enhancement pursuant to § 2S1.3(b)(2) based on the jury's finding that Guevara had committed the offense as part of a pattern of unlawful activity involving more than $100,000 in a twelve-month period. It also recommended a...