U.S.A v. Trejo

Decision Date28 June 2010
Docket NumberNo. 07-40216.,07-40216.
Citation610 F.3d 308
PartiesUNITED STATES of America, Plaintiff-Appellee,v.Noe TREJO, Defendant-Appellant.
CourtU.S. Court of Appeals — Fifth Circuit

COPYRIGHT MATERIAL OMITTED

James Lee Turner, Asst. U.S. Atty. (argued), Houston, TX, for U.S.

John Riley Friesell (argued), Houston, TX, for Trejo.

Appeal from the United States District Court for the Southern District of Texas.

Before JOLLY and DENNIS, Circuit Judges, and BOYLE,* District Judge.

BOYLE, District Judge:

Noe Trejo appeals his conviction for conspiracy to commit “promotion” money laundering under the transportation prong of the federal money laundering statute, 18 U.S.C. §§ 1956(h) and 1956(a)(2)(A). Trejo pled guilty to the charge but now maintains that the factual basis for his plea is insufficient to establish that he had the “specific intent to promote” the underlying drug trafficking activity as required under the statute. Upon a review of the record, we agree that the facts supporting Trejo's guilty plea fall short of establishing § 1956(a)(2)(A)'s “specific intent to promote” element and that the district court, therefore, erred in accepting his guilty plea. Finding no plain error, we AFFIRM.

I. BACKGROUND

Noe Trejo and Apolinar Villanueva were hired to transport large sums of money from Florida to Mexico. En route to their destination, in separate cars laden with the concealed cash, they caught the attention of a local sheriff's deputy, just outside of Beeville, Texas. The deputy took notice of the men as they traveled along the interstate in identical 2004 silver Ford Focus model vehicles, one behind the other, both cars missing their front plates. Intrigued, the deputy followed, eventually pulling them over for traffic violations. Under questioning by officers, the two visibly nervous men gave conflicting accounts of who they were, where they were headed, and why. Both denied illegal activity but agreed to let the officers search their vehicles. The searches yielded $330,426.56 in currency stashed in hidden compartments in the dashboards of both cars. In Villanueva's vehicle, officers additionally found two weapons.

Confronted with the cash, Trejo explained that he was being paid $1000 to transport the money from Lakeland, Florida, to Hidalgo, Mexico, at the direction of someone he knew only as “Jose.” He disclosed that prior to the trip, he had dropped his car off at a Wal-Mart parking lot in Lakeland Florida so Jose could pick up the car and hide the cash. He said Jose placed approximately $180,000 cash in his car. He recounted that he began his trip from Florida to Mexico on September 22, 2006 and was in touch with Villanueva by cell phone along the way. For his part, Villanueva, who was questioned separately, admitted that he knew about the money and firearms concealed in his vehicle, and that the person to whom they belonged was involved in drugs. Villanueva confessed that he was moving the money from Lakeland, Florida to Michoucan, Mexico, for a person he knew only as “Cocho.” Villanueva also admitted that he was traveling with Trejo from Florida to Mexico.

The two were arrested and later indicted for conspiracy to transport the $330,426.56 from the United States to Mexico with the intent to promote the carrying on of drug trafficking in violation of 18 U.S.C. §§ 1956(a)(2)(A) and 1956(h).1 Trejo subsequently pled guilty to the money laundering conspiracy charge.2 Villanueva pled guilty at the same hearing. A federal prosecutor proffered the following verbatim factual rendition at their plea hearing:

... If these cases were tried today, an agent from ATF and Bee County Sheriff's Department, on October 26th 2006. at 7:30 in the morning, a Deputy Pointer was on routine patrol there Highway 59 east of the Beeville. He saw a vehicle, a silver 2004 Ford Focus that had no front license plate going 70 miles an hour down 59. Well, what was interesting is it had no front license plate, but right behind it was another silver 2004 Ford Focus with no front license plate on it. And they-and so he decided to look at what was happening. Both of the vehicles-There was a DPS trooper on the side of the road, he had somebody pulled over with the emergency lights and everything, and these two cars whooshed by it, that's a violation, didn't slow down or take any precaution for the trooper that was on the side of the road, and so the deputy decided to investigate. The deputy attempted to stop the vehicle when it was-after it had gone through a construction zone going 70 miles an hour. He didn't stop them there, he was afraid of a dangerous situation, so he stops them right after the construction zone and starts to talk to the driver of the first vehicle.

Now, when he started to talk to the driver, he noticed that he was extremely nervous. And as they were standing there and speaking to him, he asked him, do you know the guy in the other car that looks like yours. He goes, no, don't know him. Both of those vehicles were from Florida, and as he spoke to the man he noticed that he was extremely nervous, he was having a lot of trouble finding his insurance, and very-and was showing all types of signs of nervousness with his body language. And Deputy Pointer contacted the trooper that was stopped on the side of the road and asked him to-told him about the other vehicle that had been speeding through the construction zone. And so the trooper when he finished that stop went around to stop the other vehicle. When he stopped the other vehicle he spoke to that driver. That driver was-Mr. Pointer was talking to Mr. Villanueva, and Mr. Villanueva said he didn't know the other people in the car that looked like his.

Now, when the trooper stopped the second car, he was speaking to the other defendant, Mr. Trejo, and Mr. Trejo said he did know the person in the other car, that it was his ex-father-in-law. And so as the trooper continued to talk to Mr. Trejo, he noticed Mr. Trejo was having facial spasms, and told him he was on a trip down to the Valley-down in the Valley to see someone who had cancer, and they carried on a conversation. And Trooper Moore at that point noticed that there was a real heavy odor of air freshener. He spoke to the other people that were in the vehicle, and asked Gloria Jasso, who was in the vehicle and was also from Florida, why she was going to Mexico, if there was somebody that was sick or something. And she said no, that that wasn't the reason they were going. And then he spoke to another passenger, and he got several different stories about what was happening.
Now, as all of this is going on, both of the vehicles being stopped in tandem, both Trooper Moore and Pointer asked if they had anything illegal in the vehicle and both stated no, and they both asked for permission to search the vehicle. They noticed there were screws loose to the dashboard and some things that were re-painted. Subsequent to that, they found secret compartments in both vehicles in exactly the same place. There were bundles, two separate bundles of money, I can't remember exactly how much it was in each, but it was practically two equal parcels of money totaling $330,426.56, 167 in each of the vehicles in each of the compartments, secret compartments.
Both Mr. Villanueva and Mr. Trejo-Along with the money in Mr. Villanueva's was two weapons that was spoken about, Your Honor. And after Mr. Trejo received his Miranda warning, he talked to the agents and said that he know currency was hidden. He was transporting money from Lakeland, Florida, and being paid to do that. He was asked by a person named Jose, and Jose was contacting him on his cell phone, and he was to take that money to Hidalgo, Mexico.
Mr. Villanueva, after his Miranda warnings said that he knew that there was currency and firearms concealed in his vehicle. He knew that the person that this belonged to was involved in drugs. He knew that he was taking the money from Lakeland, Florida to Michoucan, Mexico, for a person he knew as Cocho-I think is how you pronounce it, Cocho. They knew that they had to declare the money. The asked if they had to declare the money when they got to the Border, and they weren't going to declare the money or guns. They knew that this was drug money, and that it was going into Mexico, and that-and that weapon that was named in the indictment, Your Honor, was a gun that would be delivered to people that were narcotics traffickers.

Trejo and Villanueva agreed on the record with the prosecutor's rendition of the facts. Trejo was later sentenced to 57 months in federal custody and a three-year term of supervised release.

Trejo appeals his conviction maintaining that, although he transported the drug money, the factual basis for his plea is insufficient to prove that he did so with the specific intent to promote the underlying drug trafficking activity as required under § 1956(a)(2)(A).

II. ANALYSIS
A. Effect of Appeal Waiver/Plain Error Review

As an initial matter, Trejo waived his right to appeal as part of his plea agreement. The Government correctly does not seek to enforce the waiver because a valid waiver of appeal does not bar review of a claim that the factual basis for a guilty plea fails to establish the essential elements of the crime of conviction. United States v. Hildenbrand, 527 F.3d 466, 474 (5th Cir.2008) (citing United States v. Baymon, 312 F.3d 725, 727 (5th Cir.2002)). Permitting appeal despite a valid waiver “protect[s] a defendant who may plead guilty with an understanding of the nature of the charge, but without realizing that his conduct does not actually fall within the definition of the charged crime.” Hildenbrand, 527 F.3d at 474 (citing Baymon, 312 F.3d at 727). Thus, we consider Trejo's claim of factual insufficiency despite his waiver of appeal. Nonetheless, because Trejo did not present his factual sufficiency claim to the district court, we apply a plain error standard of review to his claim. United States v. Marek, 238 F.3d 310, 315 (...

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