U.S. v. Abbell, 99-12058
| Decision Date | 07 November 2001 |
| Docket Number | No. 99-12058,99-12058 |
| Parties | (11th Cir. 2001) UNITED STATES OF AMERICA, Plaintiff-Appellee-Cross-Appellant, v. MICHAEL ABBELL, WILLIAM MORAN, Defendants-Appellants-Cross-Appellees |
| Court | U.S. Court of Appeals — Eleventh Circuit |
Appeals from the United States District Court for the Southern District of Florida.
Before EDMONDSON, FAY and GARWOOD*, Circuit Judges.
Defendants, Michael Abbell ("Abbell") and William Moran ("Moran") (together "Defendants"), appeal their conviction for conspiracy to launder money and appeal the district court's denial of their motions for new trial. The government cross-appeals the district court's judgment of acquittal on the government's charges of RICO conspiracy and the sentencing court's application of the sentencing guidelines.
We affirm the district court's denial of judgment for both Defendants on the money laundering conspiracy, reverse the district court's judgment of acquittal for both Defendants on the RICO conspiracy charges, affirm the denial of Defendants' requests for a new trial, and remand the case to the district court for resentencing in the light of our opinion.1
In 1996, the government filed a "Fourth Superseding Indictment" charging Defendants, and over 70 other codefendants, with these offenses: 1) participating in a RICO conspiracy (Count I); 2) engaging in substantive RICO violations (Count II); 3) participating in a conspiracy to import cocaine (Count III); 4) participating in a conspiracy to import and distribute cocaine (Count IV); and 5) participating in a conspiracy to launder money (Count IX). The government first prosecuted Defendants at trial beginning in 1997. Defendants were acquitted of the substantive RICO count (Count II) after a five-month trial, but the jury could not reach a verdict on the other counts. The district court declared a mistrial on those counts.
The government tried defendants a second time beginning in 1998. The district judge did not grant Defendants' motions for judgment of acquittal: motions made on all counts at the close of the government's case and after all of the evidence. During jury deliberations, the court received word that one of the jurors was behaving improperly and refusing to obey the law or to obey the court's jury instructions. The court then gave the jury instructions about the illegality of nullification and about the jury's duty to apply the law as instructed by the court. After receiving more complaints from jury members, the court conducted an inquiry into the conduct of one of the jurors. The court talked with the juror in question and with each member of the jury in an attempt to ascertain whether the juror's conduct warranted her dismissal.
Over Defendants' objections, the district court dismissed the juror. The court had concluded that the juror was not applying the law to the case. Then, the jury found Defendants guilty of the RICO conspiracy (Count I) and money laundering conspiracy (Count IX) counts. The jury could not reach a verdict on the counts charging conspiracies to import and distribute cocaine (Counts III and IV).
Defendants filed motions for a new trial based on the juror's dismissal and on their discovery that another juror planned to write a book about the trial. The court denied the motions for a new trial. The court granted a post-trial judgment of acquittal on the RICO conspiracy charges (Count I) and on the conspiracy to import and distribute cocaine charges (Counts III and IV), but allowed the jury's guilty verdict on the money laundering conspiracy to stand.
Abbell and Moran were sentenced to 87 months and 60 months in prison, respectively. Abbell is free pending this appeal.
Moran, who fled the jurisdiction before the verdict, was captured and is incarcerated.
Defendants appeal the district court's denial of judgment of acquittal on the money laundering conspiracy charge (Count IX) and the district court's denial of their motion for new trial based on the jury problems. The government cross- appeals the district court's entry of judgment of acquittal on the RICO conspiracy charge (Count I) and the district court's calculation of Defendants' specific offense levels pursuant to the United States Sentencing Guidelines § 2S1.1.
In the 1980s and 1990s Miguel Rodriguez-Orejuela was one of the leaders of a widespread cocaine producing and smuggling empire that imported large quantities of cocaine into the United States. The organization widely know as the Cali Cartel (the "Cartel") smuggled cocaine into the United States by creatively concealing the cocaine and by using front businesses that were engaged in drug smuggling.
Rodriguez-Orejuela and other leaders of the Cartel maintained a strict code of silence among their employees. Employees were told not to cooperate with authorities if employees were ever arrested. To maintain this code of silence the Cartel utilized a carrot-and-stick approach. On the one hand, the Cartel paid the attorney's fees of members and expenses for those members' families and, on the other hand, threatened those employees who were arrested and their families with injury or death if they cooperated with authorities.
Rodriguez-Orejuela also conducted an active campaign of collecting sworn statements from his employees to shield himself from prosecution or extradition to the United States. Members or employees of the Cartel apprehended by police would often soon thereafter sign affidavits disavowing knowledge of, or involvement with, Rodriguez-Orejuela, who was often named as a codefendant in prosecutions of persons apprehended by United States' authorities.
Later this program expanded to include taking deposition testimony from certain people who had been arrested in the United States. During deposition, they would give statements similar in nature to the statements in the affidavits. Persons were picked to give such deposition testimony based on the degree to which Rodriguez-Orejuela was implicated in their case by other evidence and by the degree to which he thought that the person would provide answers favorable to Rodriguez-Orejuela.
The evidence presented in this case centers around Defendants' acts relating to the arrest (due to four successful investigations by United States authorities) and trials of drug traffickers. In November 1991, a group of people led by Gustavo Naranjo ("Naranjo") was arrested after a shipment of cocaine was imported into Miami inside concrete pillars and then transported to Texas. In April 1992, a group of people led by Harold Ackerman ("Ackerman") was arrested in connection with cocaine disguised in frozen vegetables. In April 1993, a group of people led by Carlos Torres ("Torres") was arrested for conspiracy to import 500 kilograms of cocaine. In September 1993, a group of people led by Raul Marti ("Marti") was arrested in connection with a drug smuggling operation run out of a coffee-importing business.
In August 1991, cocaine was discovered hidden inside concrete posts that were being delivered to the port of Miami. Customs agents set up surveillance of the shipment. In November 1991, a portion of the shipment was removed from a warehouse and transported to Texas where the cocaine was removed from the concrete posts. In Texas, Naranjo, Tommy Johnson, William Brooks, Anibal Restrepo and J.C. Lanier were arrested.
Customs Agent Edward Kacerosky, who was deeply involved in the pertinent case, met with Naranjo shortly after his arrest. Naranjo began to cooperate with authorities and made some recorded phone calls to Rodriguez-Orejuela and another Cartel employee in Miami. The arrests in this case were made public on 25 November 1991. Searches were then conducted yielding a seizure of 12,250 kilograms of cocaine.
After the arrests were made public, Joel Rosenthal, a Miami lawyer, flew to Texas and met with Naranjo. Naranjo stopped cooperating after the visit from Rosenthal. Rosenthal arranged for Texas lawyer Frank Jackson to represent Naranjo. Rosenthal paid Jackson with money from Rodriguez-Orejuela. Naranjo was convicted in March 1992.
Agent Kacerosky continued his investigations based on information he obtained from the Naranjo case. This activity led to the arrest of Harold Ackerman, Carlos Giron, Pedro Pablo Gomes and Jacome Milanes for importing cocaine hidden in frozen vegetables. Searches resulted in a seizure of 6,650 kilograms of cocaine and of detailed ledgers showing millions of dollars in proceeds from cocaine sales and showing millions of dollars having been shipped back to Rodriguez-Orejuela in Columbia.
Rodriguez-Orejuela told Ackerman all about the code of silence back when Ackerman had been brought into the business. Rodriguez-Orejuela also had told Ackerman that, if Ackerman was ever arrested, his lawyer would be paid for and his family would be taken care of. Whenever Ackerman brought a new person into the smuggling activities, Rodriguez-Orejuela would tell them about the code of silence. Before Ackerman took over certain smuggling activities, he was introduced to Defendant Moran who was told that Ackerman would now be in charge.
Ackerman hired lawyer Robert Moore and instructed Moore to hire other lawyers for his codefendants. Francisco Laguna ("Laguna") (who worked for Defendant Abbell)3 visited Ackerman in prison a few days after Ackerman's arrest, and Ackerman asked Laguna to relay a message to Rodriguez-Orejuela that Ackerman wanted his attorney's fees paid. Ackerman was threatened by Gonzalo Paz, one of Rodriguez-Orejuela's Columbian attorneys, that he should not cooperate with police. After a trip to Columbia, Moore also relayed a message from Rodriguez-Orejuela to Ackerman that he should not cooperate with authorities...
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