U.S. v. Guerra, 00-10744.

• Decision Date: 11 June 2002
• Docket Number: No. 00-10744.,00-10744.
• Citation: 293 F.3d 1279
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Jorge GUERRA, Cesar Tellez, Louis Ordonez, Defendants-Appellants.
• Court: U.S. Court of Appeals — Eleventh Circuit

293 F.3d 1279

UNITED STATES of America, Plaintiff-Appellee, v. Jorge GUERRA, Cesar Tellez, Louis Ordonez, Defendants-Appellants.

No. 00-10744.

United States Court of Appeals, Eleventh Circuit.

June 11, 2002.

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Jacqueline Esther Shapiro, Asst. Fed. Pub. Def., Kathleen M. Williams, Fed. Pub. Def., Julio Gutierrez, Law Offices of Julio Gutierrez, P.A., Miami, FL, Jorge E. Alonso, Law Offices of Jorge & Alonso, Coral Gables, FL, for Defendants-Appellants.

Anne R. Schultz, Jeanne Marie Mullenhoff, Randy Alan Hummel, Miami, FL, for Plaintiff-Appellee.

Appeal from the United States District Court for the Southern District of Florida.

Before BLACK and RONEY, Circuit Judges, and RESTANI^*, Judge.

RESTANI, Judge:

Defendants-Appellants Jorge Guerra, Cesar Tellez, and Louis Ordonez ("Appellants") appeal their convictions and sentences for conspiracy to traffic in counterfeit cigars in violation of 18 U.S.C. § 371, for trafficking in counterfeit cigars in violation of 18 U.S.C. § 2320, and for aiding and abetting such violations. All Appellants argue that their convictions were not supported by sufficient evidence and that the district court erred in applying the sentencing guidelines based on the value and number of the "infringing items." In addition, Appellant Guerra claims that (1) the jury was not properly instructed as to an element of the substantive offense (specifically, whether the genuine trademarks were "in use"), or as to "attempt"; and (2) the district court erred in denying Guerra's motion for a mistrial, which asserted that his Fifth Amendment Right against Self-Incrimination was violated by a government witness's comments. We affirm the convictions and remand for resentencing.

FACTUAL AND PROCEDURAL BACKGROUND

Defendant Cesar Tellez is the owner of Alpha Foil Stamping, a business that engages in embossing and foil stamping for printers. Defendant Guerra owns and operates Panorama Printing shop. Defendant Louis Ordonez is a cigar dealer who owned and operated the Don Louis Cigar Company.

On June 1, 1998, Special Agents with the United States Secret Service seized from Ordonez's home various boxes, cigar rings or bands, and cigars bearing labels of various marks, as well as different types of "Made in Cuba" printing plates. Ordonez waived his Miranda rights and admitted that he sold four to five boxes of counterfeit cigars a week, and that he had been selling them for approximately one year (i.e., approximately 234 boxes total) at a price of $40 to $100 per box. The Agents subsequently seized labels and other items from Tellez's foil stamping business, and from Guerra's print ship.

On November 11, 1998, a federal grand jury returned a seven-count indictment (superseding a three count indictment on June 19, 1998), alleging that from on or about March 11, 1998 through on or about June 5, 1998, Appellants conspired to intentionally traffic in cigars bearing counterfeit marks in violation of 18 U.S.C. § 2320 (Count One). The indictment alleged that the Appellants had intended to produce counterfeit cigar rings, affix them to inferior grade cigars, package them with counterfeit labels for sale as more expensive, higher grade cigars under separate U.S.-trademarked brands.¹

After a four-day trial, the jury reached a guilty verdict convicting all of the defendants on all counts. On January 25, 2000, the district court sentenced Tellez to 27 months and Guerra to 18 months incarceration, respectively. On March 14, 2000, the district court sentenced Ordonez to 18 months incarceration.

DISCUSSION

I. Sufficiency of the Evidence

Appellants argue that there was insufficient evidence to support their respective convictions for Conspiracy to Traffic in Counterfeit Cigars, and for the substantive offenses of Trafficking in Counterfeit Cigars in violation of the Trademark Counterfeiting Act ("TCA").²

A. Conspiracy under 18 U.S.C. § 371

The essential elements of the offense of conspiracy under 18 U.S.C. § 371 are an agreement between two or more persons to commit a crime against the United States and an overt act by one of them in furtherance of the agreement. See United States v. Yamin, 868 F.2d 130, 133 (5th Cir.1989). The government must prove beyond a reasonable doubt that the defendant knew of the conspiracy and that he voluntarily became a part of it. Id. The existence of a conspiracy may be proved by circumstantial evidence and may be inferred from concert of action. Id.

Whether there was evidence sufficient to support a conviction is a question of law subject to de novo review. See United States v. Keller, 916 F.2d 628, 632 (11th Cir.1990). In conducting such a review, the Court must determine whether "a reasonable trier of fact could find that the evidence establishes guilt beyond a reasonable doubt." United States v. Bell, 678 F.2d 547, 549 (5th Cir. Unit B 1982) (en banc), aff'd, 462 U.S. 356, 103 S.Ct. 2398, 76 L.Ed.2d 638 (1983). Appellants argue that no reasonable trier of fact could have found a conspiratorial agreement where: (1) Guerra and Tellez did not know each other personally; (2) Guerra worked with Tellez as a subcontractor prior to the period of the charged offenses; and (3) neither Guerra nor Tellez possessed cigars, or took part in affixing labels on cigars.

None of these alleged facts, either alone or in conjunction, defeat the conspiracy conviction in this case. A defendant may be found guilty of conspiracy if the evidence demonstrates that he knew the "essential objective" of the conspiracy, even if he did not know all its details or played only a minor role in the overall scheme. See United States v. Alvarez, 625 F.2d 1196, 1198 (5th Cir.1980) (en banc), cert. denied, 451 U.S. 938, 101 S.Ct. 2017, 68 L.Ed.2d 324 (1981). Nor must the government show that each defendant had direct contact with each of the other alleged co-conspirators. See United States v. Walker, 720 F.2d 1527, 1538 (11th Cir.1983), cert. denied sub nom., Gustin v. United States, 465 U.S. 1108, 104 S.Ct. 1614, 80 L.Ed.2d 143 (1984).

The essential objective of the conspiracy among the defendants was defined in the indictment as "to unlawfully enrich themselves by causing counterfeit cigar rings and box labels to be produced and attached to inferior grade cigars and boxes so that they could be sold and offered for sale as finished boxes of more expensive, high quality cigars." We find that the aggregate of the evidence is sufficient for a jury to infer that the Appellants knew the essential objective of the conspiracy. The Government's expert witness Richard Outland, the lead document examiner of the document authentication section in the forensic laboratory at the United States Secret Service, testified as to the common origin of items seized from the premises of each of the three co-defendants, including stamps, typographic plates, photographic negatives, and cigar bands. In addition, the Government introduced evidence of a receipt of sale between Tellez and Ordonez, and an entry in Guerra's address book referring to Tellez. A trier of fact reasonably could infer from this evidence that each defendant acted in concert with the other two in a process to cause certain counterfeit cigar rings and labels to be produced and attached to cigars and boxes to be sold as the genuine product.

Appellants argue that the materials of "common origin" and other evidence merely show that the defendants were engaged in a series of "buy-sell" transactions. See United States v. Mercer, 165 F.3d 1331, 1335 (11th Cir.1999) (where a "buy-sell" transaction itself constitutes a substantive offense, evidence of that transaction alone is insufficient to support an inference of conspiracy). The buyer-seller rule in the context of counterfeit goods is directed primarily at distinguishing co-conspirators from individual purchasers of the goods, who clearly fall outside the purview of the TCA. See 130 Cong. Rec. 31675 (1984) (Joint Explanatory Statement on Trademark Counterfeiting Act of 1984) ("[I]t is not a crime under this act for an individual knowingly to purchase goods bearing counterfeit marks, if the purchase is for the individual's personal use."). Unlike in cases involving isolated "buy-sell" transactions, the defendants in this case were involved in a manufacturing and sales process that could reasonably serve as a basis for inferring the existence of a "prior or contemporaneous understanding ... beyond the sales agreement."³ Id. at 1334.

This conclusion is supported by evidence and testimony regarding the duration and repetition of the transactions. See United States v. Beasley, 2 F.3d 1551 (11th Cir.1993), cert. denied, 512 U.S. 1240, 114 S.Ct. 2751, 129 L.Ed.2d 869 (1994) (affirming conspiracy conviction where there was evidence of a continuing relationship based on several purchases of cocaine and deferment of payment; joint arrangement of delivery; and knowledge of where cocaine was being sold). The jury also reasonably could have inferred from the quantity of labels and cigars and the nature of each of the defendants' businesses that the transactions were for the purpose of resale. Cf. United States v. Dekle, 165 F.3d 826, 829-30 (11th Cir.1999) (reversing a conspiracy conviction based on the reasoning that the small-quantity drug transactions were for the purpose of supporting the purchaser's personal drug habit rather than for resale). Accordingly, the buyer-seller rule is inapposite to the commercial supplier-dealer relationship among the defendants in this case.

B. Substantive Offense of Trafficking in Counterfeit Goods, 18 U.S.C. § 2320

1. Trafficking in Goods

Appellants Guerra and Tellez assert that the printing of labels in and of itself does not constitute "trafficking in goods" either under the meaning of 18 U.S.C. § 2320, or as charged in the indictment. Appellants Guerra and Tellez rely on United States v. Giles, 213 F.3d 1247 (...