U.S. v. Collins
| Decision Date | 14 June 2004 |
| Docket Number | No. 03-4257.,No. 03-4258.,No. 03-4318.,03-4257.,03-4258.,03-4318. |
| Citation | 372 F.3d 629 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. John Mark COLLINS, Defendant-Appellant. United States of America, Plaintiff-Appellee, v. Robert Marshall Serrano, Defendant-Appellant. United States of America, Plaintiff-Appellant, v. John Mark Collins; Robert Marshall Serrano, Defendants-Appellees. |
| Court | U.S. Court of Appeals — Fourth Circuit |
ARGUED: Sofie Wonderly Hosford, Hosford & Hosford, Wilmington, North Carolina, for John Mark Collins; Kelly Latham Greene, Stubbs & Perdue, P.A., New Bern, North Carolina, for Robert Marshall Serrano. Dennis M. Duffy, Assistant United States Attorney, Office of the United States Attorney, Raleigh, North Carolina, for the United States. ON BRIEF: Frank D. Whitney, United States Attorney, Anne M. Hayes, Assistant United States Attorney, Raleigh, North Carolina, for the United States.
Before MOTZ and KING, Circuit Judges, and BOWMAN, Senior Circuit Judge of the United States Court of Appeals for the Eighth Circuit, sitting by designation.
Affirmed in part and vacated and remanded in part by published opinion. Judge MOTZ wrote the opinion, in which Judge KING and Senior Judge BOWMAN joined.
A jury convicted John Mark Collins and Robert Marshall Serrano of crimes arising from their participation in sophisticated interstate burglary and money laundering conspiracies. On appeal they challenge their convictions; the Government cross-appeals, asserting that the district court misapplied the Sentencing Guidelines in determining the value of the funds involved in their illegal conduct. For the reasons that follow, we affirm the convictions, but vacate the sentences and remand for resentencing consistent with this opinion.
In July 1996, after working as a law enforcement officer with the Palm Beach County Sheriff's Department for more than a dozen years, Collins resigned and joined a burglary ring operated by his good friend (and former paid informant) William Anthony Granims, and Granims' friend, Michael Ornelas. From July 1996 to July 1999, this team committed ten to fifteen burglaries of jewelry and grocery stores throughout the southeastern United States.
The burglary ring sought to convert the stolen jewelry into cash as quickly as possible. Crucial to accomplishing this goal were three fences in Florida, who provided the team with cash and checks in exchange for the jewelry. By February 1999, Serrano had earned the privilege of becoming the team's primary fence; in return for advancing cash to fund the burglary trips, the group guaranteed Serrano a "first look" at the jewelry. The team would sell Serrano jewelry at prices much lower than retail price. Serrano touted his skill in filing down identifying serial numbers on watches, and agreed to sell those watches that still had serial numbers only in Europe. Testimony from Granims and Ornelas, as well as subsequent taped conversations between Ornelas and Serrano, indicated that Serrano would ask Granims during jewelry purchases if he could "put [the jewelry] in the showcase" and that Granims "knew what [he] meant": namely, was "it stolen locally?"
Most of the crimes for which Collins and Serrano were eventually charged stemmed from burglaries that occurred in North Carolina. On May 21, 1999, the burglary team, with Collins' participation, stole $220,000 worth of jewelry from a jewelry store in Cary, North Carolina. Immediately after that burglary, the team broke into a grocery store in Durham and stole $31,212 in cash and checks. Within days, they transported the jewelry to Florida and sold it to Serrano for $30,000 ($20,000 in cash and two $5,000 checks). A portion of the proceeds was funneled to Collins in the form of payments on Collins and Granims' jointly-held American Express card.
In June 1999, the team (with Collins in tow) returned to Raleigh, North Carolina in Granims' airplane. After a botched attempt to burglarize a jewelry store, the team stole $20,904 in cash and $3,000 in postage stamps from a grocery store. The group then stole $14,382 from another grocery store in Apex, North Carolina. Collins once again received his share via a payment on his American Express bill. In July, Ornelas sold the stamps to Serrano.
The Government charged Collins and Serrano ("Defendants") by superseding indictment with conspiracy to commit interstate transportation of stolen property ("ITSP") in violation of 18 U.S.C. §§ 371, 2314 (2000); ITSP in violation of 18 U.S.C. § 2314 (2000); conspiracy to engage in money laundering in violation of 18 U.S.C. § 1956(h) (2000); and money laundering in violation of 18 U.S.C. § 1956(a)(1)(B)(i) (2000). Collins was also charged with ITSP for the transport of the cash stolen from the grocery stores in North Carolina. After an eight-day trial, a jury convicted Defendants on all counts.
In sentencing Defendants, the district court grouped their offenses, but did not aggregate the amounts associated with the grouped offenses. Instead, the court sentenced Defendants based only on the amounts it attributed to their money laundering offenses. This resulted in a sentencing range of 70 to 87 months for Collins (rather than 108 to 135 months), and 63 to 78 months for Serrano (rather than 97 to 121 months). The court then sentenced Collins to 71 months imprisonment, and Serrano to 64 months imprisonment.
Defendants challenge their convictions on numerous grounds. Only one requires extended discussion; we turn first to it and then briefly address Defendants' remaining arguments.
Initially, Defendants maintain that the Eastern District of North Carolina did not provide a proper place of venue for the money laundering charges.
The Constitution provides that "[t]rial of all Crimes ... shall be held in the State where the said Crimes shall have been committed." U.S. Const. art. III, § 2, cl. 3; see also id. amend. VI. In United States v. Cabrales, 524 U.S. 1, 118 S.Ct. 1772, 141 L.Ed.2d 1 (1998), the Supreme Court recently considered the proper venue for money laundering offenses. The Court ruled that even if the money at issue was derived from illegal narcotics activity in Missouri, that state did not constitute a place of proper venue for money laundering offenses begun, conducted, and completed in another state. Id. at 7-10, 118 S.Ct. 1772. However, the Cabrales Court did not decide whether a launderer who "acquired the funds in one district and transported them into another" in order to launder them in the latter district, could be tried in the district from which he transported the proceeds. Id. at 8, 118 S.Ct. 1772. In United States v. Stewart, 256 F.3d 231, 239, 243 (4th Cir.2001), we interpreted the Cabrales Court's reservation of this point as delineating an "exception to its rule that money laundering typically does not constitute a continuing offense, triable both in the district court where the illegal funds were generated and the district in which the financial transaction took place."1
The Government relies on this transport exception in asserting that venue was proper in this case. In contrast, Defendants maintain that the actual acts of money laundering in this case — i.e., the actual sales of jewelry — "began and were completed all" in Florida and hence that venue for those charges was only proper in Florida under Cabrales. Brief of Appellant at 30.
Defendants, however, did not raise any objection to venue until the close of evidence in this case. As a result, a question arises as to whether they have waived their objections to venue. We note that "[b]ecause proper venue is a constitutional right, waivers of venue rights through failure to object should not readily be inferred." Stewart, 256 F.3d at 238. Accordingly, if an indictment properly alleges venue, but the proof at trial fails to support the venue allegation, an objection to venue can be raised at the close of the evidence. United States v. Melia, 741 F.2d 70, 71 (4th Cir.1984) (per curiam). Indeed, a defendant does not waive venue unless the "indictment clearly reveals [the venue] defect but the defendant fails to object." United States v. Sandini, 803 F.2d 123, 127 (3d Cir.1986) (internal quotation marks and citation omitted). When, however, the asserted venue defect "is apparent on the face of the indictment" a defendant does waive any objection if he fails to object prior to trial. Melia, 741 F.2d at 71 ().
In this case, the indictment specifically alleges on the basis of the facts set forth above — the burglaries in North Carolina and the transportation of the stolen property to Florida for sale there — that the money laundering offenses took place in the Eastern District of North Carolina. In other words, every fact giving rise to Defendants' present objection to venue clearly appeared on the face of the indictment. Thus, if the facts alleged in the indictment failed to allege a proper basis for venue on the money laundering charges, as Defendants now contend, "the defect [wa]s apparent on the face of the indictment." Melia, 741 F.2d at 71. Consequently, by failing to object to venue prior to trial, Defendants have waived their present claims of improper venue. Id.
Defendants also challenge the sufficiency of the evidence, certain rulings of the district court, and two jury instructions. All of these claims are meritless.
Contrary to Defendants' contentions, the Government produced evidence sufficient to show that Serrano had knowledge that he purchased stolen jewelry and knowingly participated in the theft and money laundering conspiracies. The steeply discounted price Serrano paid for the stolen jewelry, his prowess in filing down serial numbers, and his incriminating taped admissions...
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