U.S. v. Robertson
| Citation | 15 F.3d 862 |
| Decision Date | 01 February 1994 |
| Docket Number | 92-50460,Nos. 92-50395,s. 92-50395 |
| Parties | 38 Fed. R. Evid. Serv. 1340 UNITED STATES of America, Plaintiff-Appellee, v. Juan Paul ROBERTSON, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellant, v. Juan Paul ROBERTSON, Defendant-Appellee. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Glenn Stewart Warren, San Diego, CA, for the defendant-appellant, cross-appellee.
Steven W. Peterson, Assistant United States Attorney, San Diego, CA, for the plaintiff-appellee, cross-appellant.
Appeal from the United States District Court for the Southern District of California.
Before REINHARDT, T.G. NELSON, Circuit Judges, and KAUFMAN, * District Judge.
I
Juan Paul Robertson (Robertson) appeals his jury convictions for conspiracy and possession of cocaine with intent to distribute (Counts One through Four) and RICO (Count Six). Because we conclude that the Government failed to prove that the enterprise affected interstate commerce, we reverse the RICO count. We affirm the remaining Counts One through Four, but vacate the sentences with regard to those counts and remand for resentencing.
II
After working for several years as a lawyer for the Government, Robertson opened a private law practice in Los Angeles emphasizing criminal defense work for drug traffickers. In November, 1983, Julio Silva-Lopera (Silva) retained Robertson to defend him on a federal cocaine charge. Silva told Robertson that he had two kilos of cocaine and $980,000 concealed in the trunk of his Cadillac parked near his Reseda home. Silva asked Robertson to contact his wife and have the Cadillac placed in storage so that he could dispose of the contents when he was released from jail.
About one week later, Robertson showed up at his estranged wife's house in Phoenix driving the Cadillac. His then wife, Eddra McCarthy, saw a large amount of money and two kilos of cocaine in the trunk. Robertson told his wife to open a safe deposit box at a Phoenix bank and place the money there. He put the Cadillac in storage in Phoenix for a year. Robertson also instructed his wife to transfer the money in amounts less than $10,000 into different bank accounts in the Phoenix area. When Silva asked him about his Cadillac, Robertson told Silva that AAA had been unable to locate his car. Silva discharged Robertson. In February, 1984, Robertson stopped practicing law and moved to Arizona where he made several large cash purchases, including a house.
Walter Guarderas and his cousin Marco were drug traffickers and Robertson's former clients. In November, 1984, Walter and Marco received a thirty-kilogram shipment of cocaine from New York. Walter delivered twenty kilos of the cocaine to Marco at his house in Torrance, California. As Walter was leaving, he spotted a car he recognized as Robertson's parked outside Marco's house. Walter testified that he knew Marco was having difficulty getting paid for the cocaine he had apparently sold on credit. Walter never saw Marco again.
In mid-January, 1985, Robertson arrived at his home in Phoenix with a suitcase full of cocaine and cash. Robertson poured cocaine on the kitchen table and Eddra poured the cocaine down the sink. Robertson then hit her, dragged her down the hallway to the bedroom and showed her the contents of the suitcase (cocaine and about $400,000). He then stated, 1 In January, 1985, Robertson moved in with a married couple in Phoenix where they witnessed Robertson handling hundreds of thousands of dollars and large quantities of cocaine. When Robertson learned that the husband was interested in gold mining in Alaska, Robertson agreed to finance a gold mining partnership in Alaska called Double Eagle Mining Co. After Robertson and the husband's son entered into a partnership agreement, the partnership purchased placer gold mining claims near Fairbanks ($125,000), mining equipment ($100,000), and travel expenses for seven employees. Robertson paid for nearly all of these expenses in cash. The partnership was soon dissolved but Robertson continued operating the mine through 1987 as Robertson Mining Co. In order to finance the mining operation for the 1986 season, Robertson applied for a $300,000 loan using his Arizona home for collateral. Silva's Cadillac was driven to Alaska for use in the mining operation.
In 1980 or 1981 when he was in Los Angeles, Robertson had asked Dean Stephens to sell cocaine for him on a few occasions. After Stephens did so, he turned over the money to Robertson less his commission. Robertson continued to supply Stephens with cocaine to sell after Stephens moved to San Diego in 1984. This drug trafficking operation with Stephens continued through 1987.
In 1986, Robertson's former client, Rodriguez, and an immigration consultant, Maldonado, offered to supply Robertson with cocaine for resale. During October, 1986, and March, 1987, Robertson was involved in a series of drug transactions whereby Rodriguez, Maldonado, and Giron supplied cocaine to Robertson who then sold it to Stephens. Stephens then sold the cocaine to other dealers, including Elizabeth Grove and Cheryl Ledford.
The district court authorized a wiretap for Grove's telephone on January 9, 1987. Two weeks later she was arrested for possession of one kilogram of cocaine which was Robertson's. Robertson agreed with Dean Stephens that it would be in his best interests to represent Grove.
In May, 1987, Rodriguez told Robertson that Maldonado had been kidnapped by Peruvian cocaine traffickers who were demanding ransom for his release. Rodriguez and Robertson negotiated for Maldonado's release. The Peruvians released Maldonado after Rodriguez delivered five kilograms of cocaine. Robertson told his new wife, Sue Canada, that he had negotiated the release of his client who had been kidnapped.
In June, 1987, after Maldonado received a large amount of cash from cocaine dealers, he gave Enrique Dulong a suitcase containing $420,000 of that cash and two ounces of cocaine for safekeeping. Maldonado was soon arrested and retained Robertson to defend him. Robertson contacted Dulong and asked him for $30,000 which Dulong gave him from the suitcase. Via a note given to Robertson, Maldonado authorized Dulong to release $250,000 to Robertson. Robertson told Maldonado that as soon as he was released on bail, he should flee and that the $250,000 would be used as a contingency fund to pay off the bail bond. Dulong released $200,000 to Robertson on August 12, 1987. When Maldonado was released on bail, he asked Robertson about the money and was told that it was in a trust account in Robertson's name and the name of the bail bondsman. Maldonado did not flee and told Robertson to return the money to Dulong, which he never did. Robertson only gave $25,000 to the bondsman and never returned the remaining amount to Maldonado or Dulong. The bondsman later returned the $25,000 to Robertson. Robertson instructed Sue Canada to place shoe boxes full of cash in a safe deposit box and then to deposit money in increments less than $10,000 into the bank at various times. The checking account was used beginning July 17, 1987, and Canada made the last deposit on November 2, 1987.
On October 17, 1991, a federal grand jury for the Southern District of California returned an eight-count superseding indictment against Robertson charging him with conspiracy to possess cocaine with intent to distribute in violation of 21 U.S.C. Secs. 841(a)(1), 846 (Count One); possession of cocaine with intent to distribute in violation of 21 U.S.C. Sec. 841(a)(1) (Counts Two, Three & Four); use of a communication facility in furtherance of a narcotics felony in violation Robertson was sentenced to twenty years imprisonment to run concurrently on all counts with five years of supervised release. The district court did not sentence Robertson pursuant to the Sentencing Guidelines. Both Robertson and the Government appeal.
of 21 U.S.C. Sec. 843(b) (Count Five); racketeering activity in violation of 18 U.S.C. Sec. 1962(a) (Count Six); RICO forfeiture, 18 U.S.C. Sec. 1963 (Count Seven); and continuing criminal enterprise (CCE) in violation of 21 U.S.C. Sec. 848 (Count Eight). The jury found Robertson guilty as to Counts One through Four and Six and not guilty on Counts Five and Eight. The jury was undecided as to Count Seven and it was later dismissed.
III
Robertson argues that the Government failed to prove that the RICO enterprise affected interstate commerce. We agree. A violation of 18 U.S.C. Sec. 1962(a) 2 requires proof of the following elements: (1) a person receives income derived directly or indirectly from a pattern of racketeering activity; (2) that person uses or invests, directly or indirectly, any part or proceeds of such income in the acquisition of any interest in, or the establishment or operation of any enterprise; and (3) that enterprise is engaged in or its activities affect interstate or foreign commerce.
To constitute a RICO violation, the enterprise must be engaged in or affect interstate commerce. 18 U.S.C. Sec. 1962(a). The Government must prove that the activities of the enterprise itself affect interstate commerce and not that each predicate act affects interstate commerce. United States v. Bagnariol, 665 F.2d 877, 892 (9th Cir.1981), cert. denied sub nom. Walgren v. United States, 456 U.S. 962, 102 S.Ct. 2040, 72 L.Ed.2d 487 (1982); see also United States v. Rone, 598 F.2d 564, 573 (9th Cir.1979), cert. denied sub nom. Little v. United States, 445 U.S. 946, 100 S.Ct. 1345, 63 L.Ed.2d 780 (1980). However, in determining whether the interstate commerce nexus results from the enterprise, "[i]t is permissible to find that nexus from acts also charged as predicate acts when those constitute the activities of the...
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