United States v. Alejandro Sotelo Francisco Gonzalez Jose
| Decision Date | 07 September 2016 |
| Docket Number | CRIMINAL ACTION NO. 14-652-6,CRIMINAL ACTION NO. 14-652-10 |
| Parties | UNITED STATES OF AMERICA v. ALEJANDRO SOTELO FRANCISCO GONZALEZ JOSE |
| Court | U.S. District Court — Eastern District of Pennsylvania |
AMENDED MEMORANDUM1
After evaluating testimony from twenty-one witnesses and reviewing 241 exhibits admitted during an eight day trial on charges against a Mexican-based heroin trafficking and money laundering conspiracy, the jury returned a guilty verdict on most counts against co-defendants Alejandro Sotelo and Francisco Gonzales Jose. The United States presented compelling detailed testimony from a Special Agent of the Drug Enforcement Agency, a Department of Justice forensic financial investigator and several cooperating co-conspirators who pled guilty and, for most, were serving sentences for their admitted roles in this multi-million dollar conspiracy.
Sotelo and Jose now move for judgment of acquittal under Federal Rule of Criminal Procedure 29, and for a new trial under Federal Rule of Criminal Procedure 33. They argue we erred in admitting testimony from the Special Agent and co-conspirators concerning Jose's detailed ledger of heroin sales and by language in our jury instruction upon replacing a juror with an alternate during deliberations. After our renewed analysis, we properly admitted the Special Agent's and co-conspirators' testimony and our instruction upon replacing the juror is not plain error. We deny Sotelo's and Jose's motions in the accompanying Orders.
On May 6, 2015, a grand jury returned a Superseding Indictment against the Mexico-based Laredo Drug Trafficking Organization ("DTO") led by fugitives Antonio Laredo and Ismael Laredo and thirty-five individuals including Sotelo and Jose alleging, among other things, they conspired from 2008 to November 2014 to import and distribute over 1,000 kilograms of heroin in Philadelphia and laundering millions of dollars in heroin proceeds.2 The scheme briefly succeeded, in part, by concealing heroin in car batteries, car bumpers, vehicle traps, air compressors, and sealed fruit and vegetable cans. The Laredo DTO returned money to Mexico by use of concealed cash, bulk cash, Western Union and small wire transfers and hiding money in specially equipped vehicles returning to Mexico. The grand jury charged a conspiracy based on both heroin importation and distribution and then structuring the return of millions of dollars in illegal heroin proceeds through money laundering.
Sotelo, based in Chicago, performed both roles in the conspiracy at a high level: the grand jury charged him with heroin trafficking through, among other things, receiving monthly shipments of heroin from Mexico and then storing the heroin shipments in Chicago until directed by his long-time friend Antonio Laredo to deliver heroin to the Philadelphia area for distribution and with money transfers to Mexico to conceal and launder the illegal heroin sale proceeds.
Jose, based in Philadelphia, also worked both the supply and payment side of the conspiracy: the grand jury charged him as one of the Philadelphia-based heroin distributors, responsible for distributing and selling multi-kilogram quantities of heroin and with collecting and concealing hundreds of thousands of dollars intended to be secretly returned to the Laredo brothers in Mexico.
After extensive discovery, we tried Sotelo and Jose, each separately represented by experienced counsel. The eight days of evidence overwhelmingly confirmed Sotelo, a long-time friend of Antonio Laredo from their time together in Chicago, regularly distributed and transported, and directed multiple couriers to transport, multi-kilogram quantities of heroin from Chicago to the Philadelphia area. The evidence confirmed Sotelo picked up multiple payments of hundreds of thousands of dollars representing proceeds of heroin sales. Sotelo participated in and instructed the transport of heroin and the laundering of money through banking channels for the Laredo DTO. The evidence also confirmed Jose played a key middle management role for the Laredo DTO in Philadelphia. He regularly distributed multi-kilogram quantities of heroin in the Philadelphia area. Jose made multiple payments of hundreds of thousands of dollars to the Laredo DTO representing the proceeds of heroin sales in Philadelphia. He concealed these payments. The United States adduced evidence of Jose conspiring to distribute at least ninety (90) kilograms of heroin and laundering approximately six million ($6,000,000) dollars in heroin sales.
At the close of the United States' case, Jose moved for judgment of acquittal under Fed.R.Crim.P. 29 on the money laundering charge, arguing a lack of evidence to support a conviction.3 We denied Jose's Rule 29 motion.4 Sotelo did not move for judgment of acquittal.5
Following counsel's efficient presentation of evidence to avoid duplicative testimony from several co-conspirators, the jury deliberated for approximately ninety minutes before one juror fell ill and explained he could no longer focus. We asked if he believed he could return the next day, and he expressed reservation given the illness. After discussion with counsel and inquiring of the juror, and with counsel's consent, we excused the ill juror and replaced him with one of the two alternates who had sat through the trial but had not joined in deliberations.
Several hours later, and after an eight day trial, the jury found Sotelo guilty of conspiracy to distribute and possession with intent to distribute heroin; conspiracy to import heroin; distribution of heroin; and, conspiracy to commit money laundering.6 The jury found Jose guilty of conspiracy to distribute and possession with intent to distribute heroin; conspiracy to import heroin; two counts of possession with the intent to distribute heroin; and, conspiracy to commit money laundering.
Rule 29 provides "[a]fter the government closes its evidence ..., the court on the defendant's motion must enter a judgment of acquittal of any offense for which the evidence is insufficient to sustain a conviction."7 In considering a Rule 29 motion, we "review the record in the light most favorable to the prosecution to determine whether any rational trier of fact could have found proof of guilt beyond a reasonable doubt based on the available evidence."8 We are required to "draw all reasonable inferences in favor of the jury's verdict," and a finding of insufficiency should "be confined to cases where the prosecution's failure is clear."9 "We do not reweigh evidence or assess witness credibility," and "we must sustain the verdict 'if a rational trier of fact could have found [the] defendant guilty beyond a reasonable doubt, and the verdict is supported by substantial evidence.'"10
Sotelo and Jose move for judgment of acquittal under Rule 29. Jose moves for acquittal on the conspiracy to commit money laundering, arguing there is no evidence to support the jury's verdict.11 Sotelo moves for acquittal on all counts, arguing insufficient evidence to support the jury's verdict.12
Our criminal law provides "any person who conspires to commit any offense defined in this section . . . shall be subject to the same penalties as those prescribed for the offense the commission of which was the object of the conspiracy."13 To prove a conspiracy under §1956(h), the United States must prove "(1) that an agreement was formed between two or more persons; and (2) that the defendant knowingly became a member of the conspiracy."14 "Direct evidence of an agreement is not necessary as each element of a criminal conspiracy 'may be proven entirely by circumstantial evidence.'"15
The United States charged Jose with conspiring to violate 18 U.S.C. §1956(a)(1)(B)(i)16 requiring it show "(1) an actual or attempted financial transaction; (2) involving the proceeds of [a] specified unlawful activity; (3) knowledge that the transaction involves the proceeds of some unlawful activity; and (4) ... knowledge that the transaction [was] designed in whole or in part to conceal the nature, location, source, ownership, or control of the proceeds of [a] specified unlawful activity."17
Jose argues there is no evidence to support his involvement in money laundering. Jose asserts the only evidence of any "banking" transaction is one deposit slip pulled from the trash of his residence showing a cash deposit of $5,000 into his wife's account.
When viewing a motion for judgment of acquittal under Rule 29, we must "be ever vigilant . . . not to usurp the role of the jury by weighing credibility and assigning weight to the evidence, or by substituting [our] judgment for that of the jury."18 Here, the evidence showed each element of conspiracy to commit money laundering.
Several co-conspirators identified Jose's role in the money laundering conspiracy. Co-conspirator Joseph Torres, admitted member of the Laredo DTO and son-in-law of AntonioLaredo, testified to maintaining written ledgers.19 Torres identified ledgers showing payments made by Jose in an exchange of heroin and money.20 Torres testified to direct payment transactions with Jose as the direction of Antonio Laredo;21 Torres picked up money from Jose as payment for heroin;22 Torres knew Jose made one bank deposit for Antonio Laredo;23 Torres always received money from Jose in bulk;24 and, Torres described at least $100,000 collected from Jose and recorded in Torres' ledger.25
Both Torres and co-conspirator Bertin Torres Sanchez testified to a ledger they maintained tracking deliveries of money and drugs. Torres testified he knew Defendant Jose as "Franci" and identified his ledger recording transactions for Defendant Jose for a six-week period in May - July, 2013.26 Torres testified to being present at a cash delivery with Sanchez and Defenda...
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