U.S. v. Mouzin
| Decision Date | 18 March 1986 |
| Docket Number | 83-5168,Nos. 83-5145,s. 83-5145 |
| Citation | 785 F.2d 682 |
| Parties | , 20 Fed. R. Evid. Serv. 390 UNITED STATES of America, Plaintiff/Appellee, v. Barbara MOUZIN, Defendant/Appellant. UNITED STATES of America, Plaintiff/Appellee, v. Alfonso CARVAJAL, Defendant/Appellant. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Robert J. Perry, Asst. U.S. Atty., Los Angeles, Cal., for plaintiff/appellee.
Howard L. Weitzman, Jerald W. Newton, Weitzman & Furstman, Santa Monica, Cal., Michael D. Abzug, Los Angeles, Cal., for defendant/appellant.
Appeal from the United States District Court for the Central District of California.
Before SNEED, POOLE and FERGUSON, Circuit Judges.
On May 3, 1983, defendants Barbara Mouzin and Alphonso Carvajal were found guilty on several counts in an indictment that charged them with masterminding and operating a large money-laundering business as an adjunct to an international cocaine trafficking organization. Of the numerous issues raised by the defendants on appeal, we need only discuss the three contentions we find meritorious and one issue on whose merit we cannot agree.
Defendant Mouzin was convicted of nineteen separate offenses including: conspiracy, 18 U.S.C. Sec. 371 (Count One); currency reporting violations, 31 U.S.C. Sec. 1059 (current version at 31 U.S.C. Sec. 5322 (1982)) (Counts Eight through Twelve); the Travel Act, 18 U.S.C. Sec. 1952; conspiracy to violate and substantive violations of the narcotics laws, 21 U.S.C. Secs. 841, 843(b), 846; managing a Continuing Criminal Enterprise ("CCE"), 21 U.S.C. Sec. 848 (Count Twenty-Six); and racketeering, 18 U.S.C. Sec. 1962(c). Defendant Alphonso Carvajal was convicted on eight counts of the same indictment alleging that he was a principal, or aided and abetted, in all of the above offenses except the currency reporting and racketeering charges. Defendant Mouzin was sentenced to a total of twenty-five years with a lifetime special parole term. Defendant Carvajal was sentenced to an aggregate of twenty-nine years, also with a lifetime special parole.
Both defendants argue that there was insufficient evidence to convict them and that certain evidence was improperly admitted at trial. Defendant Carvajal also contends that his Sixth Amendment rights were violated by the district court's refusal to notify Carvajal or otherwise to act upon learning of the disbarment of Carvajal's counsel by the Ninth Circuit during the two-month trial. Both defendants contend that their convictions and sentences for the predicate narcotics offenses as they are alleged in their CCE counts must be vacated as lesser-included offenses of the greater CCE offense.
In Parts I, II, and III of this opinion, we find merit in three claims raised by the defendants regarding the sufficiency of the evidence on certain counts and the admission of certain evidence. We are unable to speak with unanimity on defendant Carvajal's Sixth Amendment claim, and Judge Poole writes Section IV for the court with Judge Ferguson in dissent. In Part V of this opinion, we conclude that the imposition of cumulative sentencing for the CCE and predicate narcotics offenses does not violate double jeopardy under the reasoning of Garrett v. United States, --- U.S. ----, 105 S.Ct. 2407, 85 L.Ed.2d 764 (1985).
To understand the defendants' arguments on appeal, we find it necessary to
discuss the evidence adduced about the cocaine and money-laundering operation and relate the sequence of some events during the trial.
In September 1981 defendant Mouzin approached the president of a small Manhattan Beach bank and inquired whether he would accept large cash deposits (in excess of $10,000) without filing the required currency transaction reports (CTRs). At that time defendant Mouzin was employed as a clothing buyer in a Miami-based garment company known as "Mr. C." According to defendant Mouzin, her employment at Mr. C.'s required her to open accounts for South American clients in order to exchange pesos; her clients allegedly did not want to file CTRs because having accounts in the United States was prohibited by their government. The president of the Manhattan Beach bank, Tom Moore, contacted the IRS and agreed to cooperate in an investigation of Mouzin. Moore then agreed with Mouzin to accept her cash deposits without filing the CTRs in return for a fee.
On November 19, 1981, Barbara Mouzin opened a new account, called the A.E.J. Export account, at the Manhattan Beach bank and deposited $20,000 in the account. The evidence indicates that this money formed the proceeds of a cocaine transaction. By January 1982, defendant Mouzin expressed concern to Mr. Moore that the large number of transactions, totaling more than $5 million, might attract attention in such a small bank. Mr. Moore agreed to facilitate finding a larger bank that would cooperate with the defendant. Mr. Moore then introduced Mouzin to an undercover agent, Ralph Jacoby, who claimed that he had connections with a larger bank through which he laundered money. Jacoby, using "Pan Pacific Financial Management" as an undercover front, agreed to accept cash from Mouzin for deposit in Security Pacific National Bank. He represented that his connections would ensure that CTRs were not filed.
Defendant Mouzin gave agent Jacoby millions of dollars beginning in February 1982 and ending in June of that year. Pursuant to Mouzin's instructions, sums were disbursed from that account by wire to other banks in Miami and Panama. On many occasions, codefendant Dorothy Hackett, an employee of Mr. C. and an associate of Barbara Mouzin, delivered cash to the Pan Pacific offices. In March 1982, agent Jacoby introduced Mouzin to two DEA undercover agents. These DEA agents, Morgan and Swanson, desired to purchase large quantities of cocaine. According to Mouzin, she first refused to facilitate such transactions but later consented under economic pressure from agent Jacoby to make up for a shortfall from a robbery in the basement of the Pan Pacific Building. At trial, codefendant Hackett, who had previously pled guilty and was awaiting sentence, testified that she picked up the cash for deposit in this account from various sources, including directly from codefendant Carvajal.
On May 27, 1982, defendant Mouzin introduced agents Morgan and Swanson to Alphonso Carvajal at her residence to discuss a large cocaine sale. Carvajal gave Morgan a small sample of cocaine. The agents wanted a larger sample and, as Carvajal was leaving in his car, Swanson requested one kilogram of cocaine. Carvajal told Swanson that he had left something in the house for them. Upon returning to Mouzin's house, the agents purchased approximately two kilograms of cocaine from Mouzin as a sample.
Defendant Mouzin contended at trial that she operated a money-laundering operation which incidentally had a few customers that may have been dealing in cocaine. She claims that her only connection with cocaine transactions, however, was the May 27 introduction of codefendant Carvajal to the agents. She admitted that she knew others, including codefendants Dorothy Hackett and Lois Widdicombe, who
were working for a cocaine dealer not named as a defendant in this case.
Defendant Alphonso Carvajal was charged primarily with narcotics violations. In addition to the evidence of the May 27 meeting with Agents Morgan and Swanson at the Mouzin residence, the agents testified that they met Carvajal in Miami in June 1982 to purchase cocaine. To pay Carvajal for the May cocaine samples, the agents deposited $57,000 in the Pan Pacific front. At the June meeting, the agents purchased 20 kilograms of cocaine from Carvajal. Carvajal had the cocaine delivered in the trunk of a rental car to the agents who, in return, agreed to deposit $1,000,000 in a Miami account. Upon returning to Los Angeles, the agents displayed fictitious wire transfer records to demonstrate payment to Carvajal. Carvajal then stated that he was part of a large cocaine organization.
These two defendants were indicted along with twenty other defendants on June 24, 1984. After some pretrial motions, the defendants went to trial on a second superseding indictment alleging twenty-eight separate offenses. At least four codefendants who had previously pled guilty appeared to testify against the defendants. The government introduced as exhibits wiretaps of conversations between the two defendants.
The government also introduced into evidence, over a defense objection, a ledger seized at a codefendant's residence in San Francisco. This ledger, which did not explicitly mention cocaine, was, according to the government, an account book for a large cocaine organization. The ledger was introduced into evidence through the testimony of DEA Agent Lyons, who claimed that he determined that the ledger described, albeit without an explicit reference to cocaine, a massive cocaine operation. Agent Lyons admitted that he had no knowledge of the identity of the ledger's author. The ledger was found at codefendant Costano's residence and did bear his fingerprints. Defense counsel objected to the admission of the ledger and Agent Lyons' testimony on the ground of an inadequate foundation. The government's own handwriting expert could not identify the ledger's author and, beyond the fingerprint, no evidence linked the ledger to codefendant Costano or anyone else. Defendant Carvajal challenges the admission of the ledger as violative of his Sixth Amendment right to confrontation.
The government also introduced a computer printout into evidence, without defense objection. This printout came from a computer disk found during the search of a residence on Trigo Lane in Carlsbad, California. The search, executed on June 29,...
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