Beras v. Johnson

• Decision Date: 20 October 2020
• Docket Number: No. 18-30684,18-30684
• Citation: 978 F.3d 246
• Parties: Roberto BERAS, Petitioner—Appellant, v. Calvin JOHNSON, Warden, Oakdale Federal Correctional Institution, Respondent—Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

978 F.3d 246

Roberto BERAS, Petitioner—Appellant,

v.Calvin JOHNSON, Warden, Oakdale Federal Correctional Institution, Respondent—Appellee.

No. 18-30684

United States Court of Appeals, Fifth Circuit.

FILED October 20, 2020

Sarah M. Harris, Lisa Schiavo Blatt, Michael Mestitz, Elizabeth Wilson, Williams & Connolly, L.L.P., Washington, DC, for Petitioner-Appellant.

Camille Ann Domingue, Assistant U.S. Attorney, U.S. Attorney's Office, Western District of Louisiana, Lafayette, LA, Daniel Kane, U.S. Department of Justice, Criminal Division, Washington, DC, for Respondent-Appellee.

Before Wiener, Engelhardt, and Oldham, Circuit Judges.

Per Curiam:

Roberto Beras is a federal prisoner. He sought postconviction review of his conviction for money laundering. But he did not do it the normal way—through a motion under 28 U.S.C. § 2255. Instead, Beras filed a § 2241 petition for habeas corpus, relying on our precedent in Reyes-Requena v. United States , 243 F.3d 893 (5th Cir. 2001). We hold the petition is an abuse of the writ.

I.

A.

Roberto Beras was the co-owner and vice president of Dinero Express, Inc., which specialized in international money transfers. United States v. Dinero Exp., Inc. , 313 F.3d 803, 805 (2d Cir. 2002) (" Dinero I "). The Government filed an eighty-two-count indictment, alleging that Beras used Dinero to facilitate "an extensive international money laundering scheme" involving New York-area drug traffickers and "the proceeds of illegal narcotics sales." Id. As relevant here, the Government charged Beras in Counts 3 through 35 with money laundering under 18 U.S.C. § 1956(a)(2)(B)(i) and in Count 1 with conspiracy to commit money laundering.

Section 1956(a)(2)(B)(i) makes it illegal for anyone to "transport[ ], transmit[ ], or transfer[ ] ... funds from a place in the United States to or through a place outside the United States" when the individual knows those funds "represent the proceeds of some form of unlawful activity" and also knows that the transfer is "designed in whole or in part ... to conceal or disguise the nature, the location, the source, the ownership, or the control" of those proceeds. 18 U.S.C. § 1956(a)(2)(B)(i).

One of Beras's main laundering practices "involved the transfer of drug proceeds to the Dominican Republic under the guise of phony money remittances through a four-step process." Dinero I , 313 F.3d at 805. "First, drug traffickers delivered their cash to Dinero's New York headquarters for gradual deposit into the company's bank accounts in the United States." Id. The money would arrive in "bulk" in the form of "big bag[s] full of cash" in amounts ranging from $20,000 to $1,000,000. Sometimes the drug traffickers would drop it off in a locked back room at a Dinero office. Or they would meet Beras at an off-site garage with their car and a "trunk full of cash." The money couldn't always be deposited right away—the drop-offs were after hours—so the cash would be counted and then placed in the safe or stored above the office ceiling.

The cash was not always clean. One time, Dinero received $500,000 in cash in Miami. But it "smell[ed] like gasoline." Dinero employees then took the cash on a bus with them to New Jersey, where they literally laundered the money by "run[ning] it through the washing machine." The cash still stunk, but a bank accepted the deposit nonetheless. So in both literal and figurative money laundering,¹ Beras proved quite successful.

Second, after depositing the cash, "Dinero remittance invoices were generated for fictitious transactions to the Dominican Republic; the invoices used false identities and addresses and were made out in amounts small enough to avoid currency reporting requirements." Dinero I , 313 F.3d at 805. Delia Cruz, a former Dinero employee, testified about the scheme. She would receive instructions to file fake remittances and incorporate them into Dinero's reports. And in order to make these fake remittances "seem real" she would even "put messages into the fake remittances" as though they were going to individuals other than drug traffickers. As another former Dinero employee said, they tried to "be creative" so it "would look like all the people listed as senders ... ha[d] actually come into the branch and requested that money to be sent." But while the remittance amount for the usual Dinero customer was "around $300," these remittances were just "under $10,000."

"Third, arrangements were made for a Dominican ‘peso supplier’ to advance local currency... to Dinero's Dominican office, which in turn forwarded the cash to the drug traffickers’ Dominican personnel under the pretense of fulfilling the fictitious remittances generated in New York." Dinero I , 313 F.3d at 805. These peso advances were in the same amount as the drug trafficker's original deposits, minus, of course, Dinero's five-percent commission. Id. Beras was in contact "on a daily basis" with the peso supplier in order to arrange these advances.

The fourth and last step involved "a wire transfer of funds from Dinero's New York operating account to the peso supplier's bank accounts in the United States." Dinero I , 313 F.3d at 805. By doing so, Dinero paid back the Dominican peso supplier for their advances and completed the process of secretive deposits, false remittances, peso advances, and wire transfers. Beras's scheme "enabled drug traffickers to move money located in New York to the Dominican Republic." Id . at 807.²

The jury convicted "Beras on all eighty-two counts in the indictment. Beras was sentenced to 292 months’ imprisonment, three years’ supervised release, and a $4,100 mandatory special assessment, and was additionally subjected to an order of forfeiture in the amount of $10 million." Dinero I , 313 F.3d at 805.

B.

Beras challenged his conviction. Because Beras's previous challenges are relevant to his abuse of the writ in this proceeding, we recount the procedural history in some detail.

Beras appealed his conviction to the Second Circuit. It affirmed in two separate opinions, Dinero I and Dinero II , issued one day apart. The Supreme Court denied review on February 23, 2004. Beras v. United States , 540 U.S. 1184, 124 S.Ct. 1441, 158 L.Ed.2d 89 (2004) (mem.).

While his direct appeal remained pending, Beras filed motions in the trial court under Federal Rule of Criminal Procedure 12(b) for a new trial and Rule 33 to dismiss the indictment. The district court denied both motions; the Second Circuit affirmed each denial. United States v. Beras , No. 99-CR-75, 2004 WL 1418022, at *2 (S.D.N.Y. June 23, 2004), aff'd , 131 F. App'x 313 (2d Cir. 2005) ; United States v. Beras , No. 99-CR-75, 2005 WL 82037, at *4 (S.D.N.Y. Jan. 13, 2005), aff'd , 152 F. App'x 50 (2d Cir. 2005). And again the Supreme Court denied review. Beras v. United States , 549 U.S. 936, 127 S.Ct. 320, 166 L.Ed.2d 240 (2006) (mem); Beras v. United States , 546 U.S. 1220, 126 S.Ct. 1444, 164 L.Ed.2d 142 (2006) (mem).

Meanwhile, Beras filed a timely 104-page § 2255 motion in the Southern District of New York on February 17, 2005. See Beras v. United States , No. 99-CR-75, 2013 WL 1155415, at *4-5 (S.D.N.Y. Mar. 20, 2013). That motion remained pending for eight years, during which time Beras filed numerous supplemental motions seeking to add or clarify arguments in his § 2255 motion. Among them, Beras claimed that his "sentence must be vacated" under the Supreme Court's then-recent decision in Cuellar v. United States , 553 U.S. 550, 128 S.Ct. 1994, 170 L.Ed.2d 942 (2008). But the district court held Beras's motion was untimely because his Cuellar argument did not "relate back to any of the grounds alleged" in his original § 2255 filing. Id. at *9; Fed. R. Civ. P. 15(c)(1)(B) ; see also Mayle v. Felix , 545 U.S. 644, 664, 125 S.Ct. 2562, 162 L.Ed.2d 582 (2005) (describing the interplay between § 2255 and then Rule 15(c)(2) ). The district court denied the rest of the claims in Beras's § 2255 motion and subsequently denied Beras's motion for relief from judgment. Beras v. United States , No. 5-CV-2678, 2013 WL 2420748, at *4 (S.D.N.Y. June 4, 2013).

The Second Circuit denied Beras a certificate of appealability because, as relevant to his Cuellar claim, he failed to show "jurists of reason would find it debatable whether the district court was correct in its procedural ruling." Beras v. United States , No. 13-1800 (2d Cir. Jan. 8, 2014) (citing Slack v. McDaniel , 529 U.S. 473, 478, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000) ).

Beras sought to raise his Cuellar claim again, this time in a successive § 2255 motion. But the Second Circuit denied authorization to file that § 2255 motion because Cuellar did not announce a "new rule of constitutional law made retroactive to cases on collateral review by the Supreme Court." Beras v. United States , No. 15-1324 (2d Cir. July 15, 2015) (quoting 28 U.S.C. § 2255(h)(2) ). Instead, Cuellar was "limited to [a] question[ ] of statutory interpretation." Id. Accordingly, it denied permission to file a second or successive § 2255 motion.

The Second Circuit denied a subsequent request to file a successive § 2255 motion on different grounds in 2016. Beras v. United States , No. 16-2301 (2d Cir. Nov. 10, 2016). In the time since, Beras has made other filings in the Second Circuit for amendment, reconsideration, mandamus, &c. with varying degrees of success. For instance, in June 2019, the Southern District granted Beras's request for various documents from his defense counsel about plea agreements and offers they received prior to his trial. Beras v. United States , No. 99-CR-75 (S.D.N.Y. June 10, 2019). Those Southern District of New York proceedings remain pending.

This is where things get interesting. Section 2255 motions must be filed in the prisoner's court of conviction, whereas habeas petitions must be filed against the prisoner's custodian. See United States v. Hayman , 342 U.S. 205, 210–19, 72 S.Ct. 263, 96 L.Ed. 232 (1952) (distinguishing § 2255 motions from habeas...