U.S. v. Otis
| Decision Date | 07 October 1997 |
| Docket Number | 94-50430,MONTALVO-DOMINGUEZ,94-50438,AGUILERA-RAMIEREZ,94-50492,94-50468,94-50520,Nos. 93-50649,94-50649,s. 93-50649 |
| Citation | 127 F.3d 829 |
| Parties | 47 Fed. R. Evid. Serv. 1335, 97 Cal. Daily Op. Serv. 7879, 97 Daily Journal D.A.R. 12,672 UNITED STATES of America, Plaintiff-Appellee, v. James Howard OTIS, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Jesus MONSALVE, aka Juan; aka Enano; aka Adolpho, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Arthur Loza ROMO, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Osbaldo, aka El Gordo, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Mario Saide, aka Mario Saide Aguilera Ramirez; aka Mario Aguilera; aka Mario Rivas, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Dario CAMACHO, aka German, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Bernardo CASAS, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Henry Reynolds, Santa Monica, CA, for defendants-appellants Otis and Montalvo-Dominguez.
James M. Hodges, Signal Hill, CA, for defendant-appellant Monsalve.
William L. Heyman, Thousand Oaks, CA, for defendant-appellant Aguilera-Ramirez.
Judith Rochlin, Los Angeles, CA, for defendant-appellant Romo.
Scott S. Furstman, Santa Monica, CA, for defendant-appellant Camacho. Mark Bernheim (argued), Santa Monica, CA, for defendant-appellant Camacho.
Morton H. Boren, Los Angeles, CA, for defendant-appellant Casas.
Jean M. Mohrbacher, Assistant United States Attorney, Los Angeles, CA, for plaintiff-appellee.
Thomas P. Sleisenger (briefed and argued), Assistant United States Attorney, Los Angeles, CA, for plaintiff-appellee.
Appeals from the United States District Court for the Central District of California; Gary L. Taylor, District Judge, Presiding. D.C. Nos. CR-92-00814-GLT-11, CR-92-00814-GLT-10, CR-92-00814-GLT-17, CR-92-00814-GLT-2, CR-92-00814-GLT-3, CR-92-00814-GLT-5, CR-92-00814-GLT-6.
Before: FLETCHER, BEEZER, and KLEINFELD, Circuit Judges.
The DEA set up what purported to be a money laundering operation for cocaine dealers. It was a dramatic success. Appellants participated in various ways in helping the Cali cartel get cocaine money back to Colombia. They used the DEA's phony money laundering operation, not realizing they were turning the Cali cartel's money over to the DEA, and turning themselves in to federal law enforcement. Appellants were convicted of various conspiracy, money laundering and gun crimes, detailed below as necessary. The government's theory, proved to the satisfaction of the jury, was that appellants conspired not only to launder money, but also to aid and abet the sale of cocaine by so doing.
We consider first the defendants' common arguments and then their individual arguments.
Several defendants claim that the jury instructions were conflicting under United States v. Stein, 37 F.3d 1407 (9th Cir.1994). They did not object on this ground, so we review for plain error. Relying on United States v. Golb, 69 F.3d 1417, 1428 (9th Cir.1995), we conclude that there was no plain error. The facts in this case are more analogous to Golb than Stein.
Appellants argue insufficiency of evidence, on the theory that the mere delivery of money from a defendant to a money launderer does not constitute taking steps to conceal or disguise the nature of the funds being transferred. Appellants based their argument on Sixth Circuit authority. United States v. Reed, 77 F.3d 139 (6th Cir.1996), however, overrules United States v. Samour, 9 F.3d 531 (6th Cir.1993), the primary case on which defendants rely. We do not see a basis in 18 U.S.C. § 1956(a)(1)(B)(i) and § 1956(c)(3) for appellants' theory as applied to the evidence in this case.
Defendants also argue that mere delivery fails to prove that the transaction was designed to conceal or disguise the nature, location, source, ownership or control of the proceeds. They rely on Tenth Circuit authority, United States v. Dimeck, 24 F.3d 1239 (10th Cir.1994), subsequently distinguished and limited in United States v. Salcido, 33 F.3d 1244, 1245-46 (10th Cir.1994). There was sufficient evidence for the jury to find that the defendants intended to assist the Cali cartel in laundering its money, and were not merely delivering money.
Several defendants argue that their convictions on both Counts I and II violate the Double Jeopardy Clause. We consider the argument even though it was not preserved in district court, because it is purely legal and, if correct, the argument would relate to a miscarriage of justice. See Jovanovich v. United States, 813 F.2d 1035, 1037 (9th Cir.1987).
Count I charges that defendants "conspired and agreed ... to aid and abet the distribution of cocaine" in violation of 21 U.S.C. § 841(a)(1). Count II charges that the defendants "conspired and agreed ... to conduct financial transactions, knowing that the property involved in the financial transactions represented the proceeds of some form of unlawful activity, and knowing that the transactions were designed in whole or in part to conceal and disguise the nature, location, source, ownership, and control of the proceeds of specified unlawful activity" in violation of 18 U.S.C. § 1956(a)(1)(B)(i). The indictment sets out factual details of the defendants' activities in great detail in the "means of the conspiracy" and "overt acts" portions of Count I, and then incorporates by reference the same averments for the means and overt acts portions of Count II.
The elements of the crimes as set out in the statutes differ, so there was no double jeopardy. See Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306 (1932); United States v. Cuevas, 847 F.2d 1417, 1429 (9th Cir.1988). Blockburger does not direct us to compare the evidence necessary to convict the defendants of both offenses; rather, it directs us to engage in statutory construction of the two provisions under which the defendants are convicted. "[W]e focus upon the statutory elements of each offense, rather than on the actual evidence presented at trial." United States v. Wolfswinkel, 44 F.3d 782 (9th Cir.1995) (citing Illinois v. Vitale, 447 U.S. 410, 100 S.Ct. 2260, 65 L.Ed.2d 228 (1980)). "[T]wo offenses are not the same offense for double jeopardy purposes if 'each provision requires proof of an additional fact which the other does not.' " Id. (quoting Blockburger, 284 U.S. at 304, 52 S.Ct. at 182). "[S]ubstantial overlap in the proof" does not establish double jeopardy. United States v. Cuevas, 847 F.2d 1417, 1429 (9th Cir.1988).
In this case, the same act constitutes two crimes, and punishing it as such does not violate double jeopardy. One needs to agree to a plan to conceal proceeds of an unlawful activity to be guilty of conspiracy to launder money, but one need not agree to a plan to conceal proceeds to be guilty of conspiracy to aid and abet the distribution of drugs. Likewise, one needs to agree to a plan to aid the distribution of drugs to be guilty of conspiracy to aid and abet the distribution of drugs, but one need not agree to a plan to aid the distribution of drugs to be guilty of conspiracy to launder money. Here, it just happens that the proceeds laundered are drug proceeds and not the proceeds of some other unlawful activity.
Conspiracy to launder money, 18 U.S.C. §§ 371, 1956(a)(1)(B)(i), is not a lesser included offense of conspiracy to aid and abet the distribution of controlled substances, 21 U.S.C. §§ 841(a)(1), 846. See United States v. Cuevas, 847 F.2d 1417, 1429 (9th Cir.1988) ().
Several defendants argue that the district court abused its discretion when it admitted evidence of their prior drug convictions. The district court was within its discretion in deciding that the prior convictions were relevant to show knowledge that the money was derived from cocaine sales, and, therefore, admissible under Federal Rule of Evidence 404(b). See United States v. Garcia-Orozco, 997 F.2d 1302, 1304 (9th Cir.1993); United States v. Arambula-Ruiz, 987 F.2d 599, 602 (9th Cir.1993). Though for different crimes, the prior convictions tend to show that defendants were familiar enough with the cocaine business to allow an inference of knowledge. The district court did not abuse its discretion in deciding that relevance outweighed unfair prejudice.
Several appellants argue that conspiracy to launder money cannot also be aiding and abetting a conspiracy to sell cocaine. We are bound by the proposition that if a defendant "knowingly facilitates movement of money derived from narcotics out of the United States for narcotics traffickers, he can be found guilty of a conspiracy to aid and abet narcotics trafficking." United States v. Cuevas, 847 F.2d 1417, 1422 (9th Cir.1988). Appellants' argument fails.
Otis argues that the district court erred in making his federal sentence consecutive to his Texas sentence. He waived his right to appeal in his plea agreement, but the right was revived because the district court told him he could appeal. See United States v. Buchanan, 59 F.3d 914, 916 (9th Cir.1995). The district court had discretion to make the sentence consecutive or...
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