U.S. v. Hernando Ospina, 85-5199

• Decision Date: 15 September 1986
• Docket Number: No. 85-5199,85-5199
• Citation: 798 F.2d 1570
• Parties: 21 Fed. R. Evid. Serv. 878 UNITED STATES of America, Plaintiff-Appellee, v. Mariano HERNANDO OSPINA, Mauricio Lehrer, Defendants-Appellants.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1570

798 F.2d 1570

21 Fed. R. Evid. Serv. 878

UNITED STATES of America, Plaintiff-Appellee, v. Mariano HERNANDO OSPINA, Mauricio Lehrer, Defendants-Appellants.

No. 85-5199.

United States Court of Appeals Eleventh Circuit.

Sept. 15, 1986.

Bruce Rogow, Ft. Lauderdale, Fla., for defendants-appellants.

Melvyn Kessler, Miami, Fla., for Lehrer.

Leon B. Kellner, U.S. Atty., Paul DiPaolo, Nancy L. Worthington, Leon B. Kellner, Linda Collins Hertz, Asst. U.S. Attys., Miami, Fla., for plaintiff-appellee.

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

Before GODBOLD and FAY, Circuit Judges, and PECK, ^* Senior Circuit Judge.

PER CURIAM:

Appellants Mauricio Lehrer and Mariano Hernando Ospina appeal their convictions for various financial reporting requirement-related offenses arising from their laundering of approximately $1.3 million in narcotics proceeds over a four week period in the Southern District of Florida. Finding no error, we affirm.

I. FACTS

The events ¹ leading to the appellants' convictions began on May 30, 1984 when Special Agent William Velasco, acting in an undercover capacity, met with appellant Mauricio Lehrer at Velez Tours, a travel agency owned by Lehrer which is located in a Miami office building. Velasco had met with Lehrer about twelve times previously and discussed with him the laundering of money through the exchange of U.S. dollars for pesos. On this date, Lehrer asked the agent if he was able to exchange currency for checks. Velasco told Lehrer that he could, and that he would charge a two percent fee for the service. Lehrer stated that the fee was high and, in consideration of the fact that he had a lot of clients who had dollars to move, he should be given a lower rate. Velasco, however, told Lehrer that the rate was not negotiable and that the risk involved justified the two percent commission. Velasco explained to Lehrer that the problem with buying cashier's checks and money orders was that government forms ² had to be filled out reporting cash transactions. In order to avoid the filing of the government forms, multiple checks would have to be purchased in amounts of less than $10,000. Lehrer stated that he understood the problem and that he would contact the agent within a few days.

Two weeks later, on June 11, 1984, Lehrer called Velasco and asked if he was still able to exchange currency for checks. Velasco told Lehrer that he could, and a meeting was arranged for the next day at Velez Tours. On June 12, 1984, the first in a series of five transactions occurred. Velasco arrived that morning, at approximately 10:00 a.m., at the office of Velez Tours accompanied by IRS Special Agent Pete Abalia. ³ Lehrer escorted the agents into his private office and stated that he had $250,000 in cash to exchange for cashiers checks. Lehrer asked what the rate would be. Velasco replied, as he had indicated at their May 30th meeting, that the rate would be two percent of the total amount exchanged. Lehrer again asked if the agent could exchange dollars for pesos and Velasco replied that he could not. Lehrer then left the office, saying that he was going to talk with the owner of the money to see if he was willing to pay the commission. Within a few minutes, Lehrer returned and stated "we'll go on ahead and conduct the business." Lehrer and Velasco again discussed the "problem" with having to file currency transaction report (CTR) forms. Lehrer stated that he wanted to receive checks made payable to Hector Suarez by 2:30 p.m. that day. When Velasco told Lehrer that it would be impossible to convert that amount of cash into multiple checks in amounts less than $10,000 by 2:30 p.m., Lehrer stated he did not care if the checks were large or small. Velasco then told Lehrer that he could obtain large checks through a connection he had at the bank, however, he explained he did not like using that method too often because he would have to pay to not have the CTR forms filed. Lehrer responded, "that's fine," and Velasco then agreed to accept the currency and return the checks by 3:00 p.m. Lehrer thereupon stated that his client had five million dollars to exchange and was a good customer and asked the agents to follow him out to the parking lot to get the $250,000. As the agents were preparing to leave, Lehrer asked the agents to "take out another two percent for him as his commission on the transaction." When the agents were walking towards the elevator with Lehrer, Rudolfo Ospina ⁴ also exited Velez Tours and entered the elevator. They all proceeded down to the parking lot, and Lehrer directed the agents to follow Rudolfo Ospina to a brown Toyota. At the car, Ospina removed a brown paper bag from the back seat and handed it to Agent Abalia. This bag contained currency and was transported to the office of Operation Greenback, where it was counted.

The currency amounted to $249,940, $60 short of $250,000. One $20 bill was counterfeit. Five thousand dollars was retained as the two percent charged by the agents, and an additional two percent was retained for Lehrer. Velasco and Abalia, who identified themselves as government agents, then converted the currency into five cashiers' checks at Flagship National Bank (Flagship), payable to Hector Suarez. No CTR's were filed by Flagship in connection with this or any of the four later currency transactions in this case. At approximately 3:00 p.m., the agent returned as promised to Velez Tours and gave Lehrer the cashier's checks and $5,000 cash. The cashier's checks were later deposited to Rudolfo Ospina's trading account at Refco, Inc., a commodities trading business, located upstairs in the same building as Velez Tours.

The second transaction commenced in a similar fashion with Lehrer contacting Velasco on June 19, 1984 and requesting a meeting the following morning so that Velasco could pick up some currency to exchange into checks. The next morning when Velasco and Abalia arrived at the office of Velez Tours, Velasco told Lehrer that he had a problem with his "contact" at the bank. Velasco explained that the contact wanted to increase the commission by one percent, due to some recent arrests in Miami which made it very "hot" for this type of dealing. Velasco also told Lehrer that according to the bank contact, he (Velasco) was required to fill out a CTR form each time he received money and that Lehrer also was required to fill out this form upon receiving money, in that both he and Lehrer were acting as financial institutions. Lehrer responded, "Yes, fine, but I am not going to pay the extra commission." Velasco told Lehrer that to make things easy Velasco could file the required forms and thereby report the transactions to the government. Lehrer replied, "No, no. We don't want anything to do like that," and then asked, "You haven't recorded anything on the other prior transactions, have you?" Velasco answered "No." Lehrer then stated he was going to call the owner of the money whereupon he had a phone conversation in Velasco's presence with "Mariano". Upon hanging up, Lehrer asked Agents Velasco and Abalia to go with him to meet the individual in the parking lot. They all proceeded down in the elevator to the first floor of the building where they met appellant Mariano Ospina, who was waiting outside the elevator. Mariano Ospina handed Velasco a piece of paper with the names "Hector Suarez" and "Pedro Luis Diaz." Next to the name "Diaz" was the number "76 with a circle around it." Mariano Ospina stated that the checks were to be made out in these two names and that the one for Diaz had to be for exactly $76,000. Mariano handed a briefcase to Agent Abalia and then left in the waiting elevator. Lehrer then instructed Velasco to bring him his commissions out of the money going to the Suarez check and none from that going to Diaz.

Velasco took the briefcase to the Customs Office at Miami International Airport. The money was taken out of the briefcase and subjected to an examination by a trained narcotics detector dog, Prince, who alerted, i.e., reacted positively to the presence of narcotics scent on the money. Velasco then took the money to the offices of Operation Greenback for counting. It amounted to $100,000, which the agents then converted at Flagship into two cashiers checks in the amounts of $76,000 ⁵ and $20,000. Velasco returned to Velez tours at 2:30 p.m. and gave Lehrer the two checks, his $2,000 commission in cash, and the briefcase. Lehrer, stating that he had to take the checks to the man who was getting nervous, then left and took the elevator up. The check for $20,000 was later deposited to Rudolfo Ospina's account at Refco.

The third transaction took place the morning of June 26, 1984 when Agents Velasco and Abalia went to the parking garage of Lehrer's office building. Velasco went up to meet Lehrer at Velez Tours. After calling upstairs to Mariano Ospina to advise him that Velasco had arrived, Lehrer and Velasco left the office and proceeding to the elevator where they met Ospina and descended to the garage. As Velasco, Ospina and Lehrer approached the parking garage, Rudolfo Ospina walked up and spoke with Mariano. Rudolfo appeared to be nervous. Lehrer told Velasco that the Ospinas were afraid because there was a car in the garage with two men inside, whom the Ospinas suspected were police. At Lehrer's instruction, Velasco and Abalia then left the area for ten minutes and returned just as Rudolfo's car pulled up. The agents met with Lehrer, Mariano Ospina and Rudolfo Ospina. Rudolfo Ospina got out of the car with a briefcase and motioned for Velasco to follow him. He then walked to a public telephone located in the garage and pretended to make a telephone call. Rudolfo laid the briefcase down and motioned for Velasco to pick it up. Velasco did so, and the agents returned to Operation Greenback.

Prior to counting the currency, a second U.S. Customs narcotics detector dog, Rebel,...