U.S. v. Puche, No. 02-12605.

• Decision Date: 12 November 2003
• Docket Number: No. 02-12605.,No. 02-14586.,No. 02-12606.
• Citation: 350 F.3d 1137
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Mauricio Javier PUCHE, Defendant-Appellant. United States of America, Plaintiff-Appellee, v. Enrique Alfonso Puche, Orlando E. Puche, Defendants-Appellants. United States of America, Plaintiff-Appellee, v. Gloria Exchange Corporation, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

350 F.3d 1137

UNITED STATES of America, Plaintiff-Appellee, v. Mauricio Javier PUCHE, Defendant-Appellant.

United States of America, Plaintiff-Appellee, v. Enrique Alfonso Puche, Orlando E. Puche, Defendants-Appellants.

United States of America, Plaintiff-Appellee, v. Gloria Exchange Corporation, Defendant-Appellant.

No. 02-12605.

No. 02-12606.

No. 02-14586.

United States Court of Appeals, Eleventh Circuit.

November 12, 2003.

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Benjamin S. Waxman, Robbins, Tunkey, Ross, Amsel & Raben, P.A., Miami, FL, for Mauricio Javier Puche.

G. Richard Strafer, G. Richard Strafer, P.A., Miami, FL, for Orlando E. Puche.

Scott Alan Srebnick, Law Office of Scott Alan Srebnick, Miami, FL, for Enrique Alfonso Puche.

Carol E. Herman, Anne R. Schultz, Harriett R. Galvin, Miami, FL, for Plaintiff-Appellee.

Walter A. Reynoso, Law Offices of Walter A. Reynoso, P.A., Miami, FL, for Gloria Exchange Corp.

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

Before HULL, MARCUS and STAHL^*, Circuit Judges.

STAHL, Circuit Judge:

Defendants-appellants Enrique Puche, Mauricio Puche, Orlando Puche, and Gloria Exchange Corporation (GEC) appeal from their convictions and sentences on one count of conspiracy to commit money laundering, in violation of 18 U.S.C. § 1956(a)(3) & (h). In addition, they appeal from a forfeiture order, entered by the district court pursuant to 18 U.S.C. § 982(a)(1) and 21 U.S.C. § 853, finding them jointly and severally liable in the amount of $1,628,693.20 for money used in the offense and money involved in each financial transaction that defendants had conspired to conduct. Defendants contend that: (1) the evidence at trial was insufficient to support their convictions; (2) the district court erred on three particular jury instructions; (3) the district court abused its discretion by admitting certain evidence at trial; (4) the district court erred when it replaced a juror with an alternate; (5) the forfeiture order was improper; and (6) the district court improperly sentenced all three individual defendants.¹

I. BACKGROUND

We set forth the trial evidence in the light most favorable to the government. United States v. Miles, 290 F.3d 1341, 1355 (11th Cir.), cert. denied, 537 U.S. 1089, 123 S.Ct. 707, 154 L.Ed.2d 634 (2002).

The facts in this case are many and detailed, as defendants' convictions rest principally on circumstantial evidence gained from a series of meetings between defendants and DEA undercover agents. The Puches owned and operated GEC, a money transmittal company located in Miami, Florida.² Mauricio was primarily responsible for advertising GEC's services, while Orlando maintained principal authority over disbursement and transfers of money. Enrique supervised the staff at GEC, conducted banking business, and ran errands. Co-defendant Wilder Moreno was GEC's manager. Enrique, the titular head of the company, is the father of Mauricio and Orlando.

The DEA "sting" operation began in early 1999 with an investigation of United Express, another money transmittal company. Detective Elio Oliva of the Sunny Isles Police Department, as "Leonardo Casamayor," posed as a drug dealer responsible for collecting cash from various drug sales locations and forwarding the money to overseas accounts. DEA Special Agent Luis Miranda, as "Luis Pacheco," posed as Casamayor's drug business employee. Between July of 1999 and September of 2000, Oliva visited United Express thirty times to exchange cash in small bills into larger denominations so that he could more easily conceal the money or transport it outside the United States. Through United Express's owner, Ana Arbelaez, Oliva met Zaidy Rojas and Sandra Serna-Osorio, whom Arbelaez identified as people who helped her out by bringing her $100 bills. Rojas worked at GEC while Serna-Osorio worked at Variedades, a money transmittal company that operated under GEC's money transmittal license and was co-owned by Mauricio Puche and Fernando Torres. At the same time, Agent Miranda, conducting a similar investigation of Variedades executed money exchanges through Rojas and Torres.

Eventually, Oliva went directly to Rojas at Variedades and Serna-Osorio at GEC. He spoke openly about narcotics trafficking with Serna-Osorio and Rojas and during May and June of 2000, hired them to exchange small bills for large bills in amounts ranging from $15,000 to $20,000. Both Serna-Osorio and Rojas told Oliva that they had obtained the $100 bills that they gave him from the cashier's office at GEC. Oliva paid Serna-Osorio and Rojas "under the table" for each exchange. When the agents expressed a desire to wire larger sums of money, Rojas referred them to the Puches.

On June 21, 2000, Oliva introduced himself to Orlando at the GEC's main office. Over the next three months, the agents, either individually or together, visited the GEC's main office eleven times and brought a total of $714,500 in cash on eight of those visits. The agents brought the cash in $1, $5, $10, and $20 bills, all in boxes or duffel bags. GEC deposited the cash in its own bank accounts, and then wire-transferred the money to DEA-controlled accounts in Canada and England as designated by the undercover agents.

During their visits to the GEC office, the agents always spoke with Orlando (with the exception of August 10, 2000) and also met with Mauricio, Enrique, and Wilder Moreno on at least two occasions. The conversations were always conducted in Spanish. The agents recorded conversations during nine of those visits with devices carried on their bodies. After the conclusion of the investigation, defendants, along with thirteen co-defendants, were arrested and charged with conspiracy to money launder. All of the Puches pled not guilty. At the close of the government's case-in-chief and again at the close of all evidence at trial, defendants moved for judgments of acquittal; the district court denied their motions. The jury returned verdicts of guilty as charged for all defendants. The court then charged the jury on the forfeiture count and shortly thereafter, the jury found defendants jointly and severally liable for a money judgment, which a magistrate judge later reduced upon defendants' motion. The court sentenced Orlando Puche to 188 months' imprisonment, Enrique to 151 months, and Mauricio to 151 months, in addition to three years' supervised release for all three individual defendants.

II. DISCUSSION

A. Sufficiency of the Evidence

We review all the evidence de novo in the light most favorable to the government, drawing all reasonable inferences and credibility choices in the government's favor, to determine whether a rational jury could have found defendants guilty beyond a reasonable doubt. Miles, 290 F.3d at 1355.

Defendants assert that the government failed to present sufficient evidence to support a finding that law enforcement made a representation that would have reasonably led defendants to believe that the money to be wired came from illegal drug sales. In turn, they argue that without such a representation, they could not have knowingly participated in a money laundering conspiracy. After a thorough review of the record, we disagree and hold that the district court did not err in denying defendants' motions for judgments of acquittal.

To prove money laundering under § 1956(a)(3), the government must show that the defendant (1) conducted or attempted to conduct a financial transaction (2) involving property represented to be the proceeds of specified unlawful activity (3) with the intent (a) "to promote the carrying on of specified unlawful activity," (b) "to conceal or disguise the nature, location, source, ownership, or control of property believed to be the proceeds of specified unlawful activity," or (c) "to avoid a transaction reporting requirement under State or Federal law." 18 U.S.C. § 1956(a)(3). As used under the statute, "`represented' means any representation made by a law enforcement officer or by another person at the direction of, or with the approval of, a Federal official authorized to investigate or prosecute violations [under § 1956.]" Id. "[I]n order to satisfy the representation element, ... the [g]overnment need only prove that a law enforcement officer or other authorized person made the defendant aware of circumstances from which a reasonable person would infer that the property was drug proceeds." United States v. Starke, 62 F.3d 1374, 1382 (11th Cir.1995) (internal citations omitted). The government agents are not required to make express statements that the money came from illegal activity. See id. To prove a conspiracy, the government must show that the individual had knowledge of the conspiracy and intended to join or associate with the objective of the conspiracy. United States v. Gold, 743 F.2d 800, 824 (11th Cir.1984).

1. Defendants as a Whole

It is important to note that the government prosecuted this case under two alternate theories: that defendants actually believed that the money came from drug trafficking, or, according to a "deliberate ignorance" theory, that they deliberately closed their eyes to what they had every reason to believe was the illegal nature of the money they were wire-transferring. We first discuss the evidence incriminating all defendants and then detail the cases against each individual defendant.

The evidence showed that in the course of the DEA investigation, GEC and the Puches were touted and known for their capacity and willingness to transmit a high volume of cash by wire. Indeed, the agents were referred to GEC after already having done business with other money transmittal companies. Previous to any meetings with the Puches, Oliva offered Rojas and Serna-Osorio opportunities to assist in his "new venture in Orlando" by transporting heroin from Miami to Orlando in hidden compartments in cars, an offer the GEC employees rejected....