United States v. Diaz-Pellegaud, s. 10–3797

• Citation: 666 F.3d 492
• Decision Date: 16 March 2012
• Docket Number: Nos. 10–3797,10–3828,11–1002.,10–3830,s. 10–3797
• Parties: UNITED STATES of America, Appellee, v. Jesus Fabel DIAZ–PELLEGAUD, also known as Fael, also known as Fabel, Appellant.United States of America, Appellee, v. Jose Garcia, also known as Maya, also known as Moya, Appellant.United States of America, Appellee, v. Jose Enrique Burgos–Valdez, also known as Jose Enrique Burgos, also known as Feriche, also known as Feruchi, also known as Arturo, Appellant.United States of America, Appellee, v. Benjamin Melendez–Rocha, also known as Roberto Barron, also known as Enano, also known as Nano, also known as Seta, Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

666 F.3d 492

UNITED STATES of America, Appellee,

v.Jesus Fabel DIAZ–PELLEGAUD, also known as Fael, also known as Fabel, Appellant.United States of America, Appellee,

v.Jose Garcia, also known as Maya, also known as Moya, Appellant.United States of America, Appellee,

v.Jose Enrique Burgos–Valdez, also known as Jose Enrique Burgos, also known as Feriche, also known as Feruchi, also known as Arturo, Appellant.United States of America, Appellee,

v.Benjamin Melendez–Rocha, also known as Roberto Barron, also known as Enano, also known as Nano, also known as Seta, Appellant.

Nos. 10–3797

10–3828

10–3830

11–1002.

United States Court of Appeals, Eighth Circuit.

Submitted: Oct. 20, 2011.Filed: Jan. 25, 2012.Rehearing and Rehearing En Banc Denied March 16, 2012.

Stephen R. McCaughey, argued, Salt Lake City, UT, for appellant Jesus Fabel Diaz–Pellegaud in case no. 10–3797.

Richard L. Johnson, argued, Sioux Falls, SD, for appellant Jose Garcia in case no. 10–3828.

Thomas J. VonWald, argued, Sioux Falls, SD, for appellant Jose Enrique Burgos–Valdez in case no. 10–3830.Margaret Ann VandeMore Gillespie, argued, for appellant Benjamin Melendez–Rocha in case no. 11–1002.Mark E. Salter, AUSA, argued, John E. Haak, AUSA, on the brief, Sioux Falls, SD, for appellee.

Before MELLOY, BEAM, and GRUENDER, Circuit Judges.

GRUENDER, Circuit Judge.

Jesus Fabel Diaz–Pellegaud, Jose Garcia, Jose Enrique Burgos–Valdez, and Benjamin Melendez–Rocha appeal their convictions and sentences on various grounds. For the reasons set out below, we affirm the convictions and sentences imposed by the district court.¹

I. BACKGROUND

This case stems from a multi-year investigation into an interstate and international drug smuggling and distribution organization. The Government asserted at trial that Diaz–Pellegaud arranged for the smuggling of methamphetamine and marijuana from Mexico to the United States and supervised the distribution of these drugs in locales including Phoenix, Arizona, and Sioux Falls, South Dakota. Garcia provided “muscle” for the organization and traveled north from Mexico as part of a team of enforcers to assist drug dealers in Sioux Falls with debt collection efforts. Burgos–Valdez was involved in the transportation and smuggling of drugs for the organization. Melendez–Rocha was involved in methamphetamine and marijuana distribution in Phoenix and elsewhere and helped launder money for the organization as well.

The investigation began with a traffic stop in New Mexico on July 12, 2007, during which Burgos–Valdez and two others were found to be transporting more than three kilograms of methamphetamine and a loaded .45 caliber handgun in their car while driving from Phoenix to Sioux Falls. Documents seized during this stop led police to investigate a house at 512 North Menlo Avenue in Sioux Falls. On April 1, 2008, acting pursuant to a search warrant, police searched the Menlo Avenue house, seizing over a kilogram of methamphetamine, cash, and a significant amount of paperwork related to drug distribution, including ledgers and “owe sheets.” Shortly thereafter, police arrested the owner of the Menlo Avenue house, Dario Verdugo–Galaviz, one of the key players in the organization's distribution operation in both Phoenix and Sioux Falls.

On February 20, 2009, police simultaneously executed a number of search warrants on houses with ties to the organization, including one belonging to Fidel “Pelon” Villaneuva–Godinez, an important figure in the Sioux Falls distribution operation. At Pelon's house, officers found cash and almost half a kilogram of methamphetamine. Information gleaned from the searches also enabled the subsequent interception of a drug shipment bound for Sioux Falls containing over a kilogram of methamphetamine and approximately fifty pounds of marijuana. On July 1, 2009, Diaz–Pellegaud was arrested in Idaho in a pickup truck containing approximately 160 pounds of marijuana.

A grand jury indicted twenty-seven individuals in connection with this investigation. Twenty-one pled guilty, and a majority of these cooperated with the authorities. The remaining six—Michelle Munoz, who was with Burgos–Valdez when he was arrested, Manuel Ramirez, who was with Diaz–Pellegaud when he was arrested, and the four appellants—pled not guilty and proceeded to trial. After an eight day trial, the jury acquitted Munoz and convicted all four appellants and Ramirez of conspiracy to distribute 500 grams or more of a substance containing methamphetamine; Diaz–Pellegaud, Garcia, and Ramirez of conspiracy to distribute 100 kilograms or more of a substance containing marijuana; and Diaz–Pellegaud and Melendez–Rocha of conspiracy to launder money. The district court sentenced Diaz–Pellegaud to 360 months' imprisonment, Garcia to 151 months' imprisonment, Burgos–Valdez to 240 months' imprisonment, and Melendez–Rocha to 348 months' imprisonment.² All four timely appeal.

II. DISCUSSION

On appeal, Diaz–Pellegaud argues that the evidence introduced at trial was insufficient to support his convictions for conspiracy to commit money laundering and for conspiracy to distribute methamphetamine and marijuana. Garcia similarly challenges the sufficiency of the evidence for his convictions for conspiracy to distribute methamphetamine and marijuana and also contends that the district court abused its discretion by failing to adjust his sentencing guidelines offense level downward on the basis of minor or minimal participant status. He further argues that his sentence is substantively unreasonable. Burgos–Valdez challenges the sufficiency of the evidence for his conviction of conspiracy to distribute methamphetamine and claims that his sentence is substantively unreasonable. Melendez–Rocha contends that the district court erred in denying his motion for a new trial on the basis of statements by a co-defendant's attorney that allegedly violated a pretrial order, and he argues that his sentence is substantively unreasonable.

A. Diaz–Pellegaud

1. Evidentiary Sufficiency: Money Laundering

We consider challenges to the sufficiency of the evidence to support a conviction de novo but consider the evidence presented “in the light most favorable to the government, resolving conflicts in the government's favor, and accepting all reasonable inferences that support the verdict.” United States v. Yarrington, 634 F.3d 440, 449 (8th Cir.2011) (quoting United States v. Scofield, 433 F.3d 580, 584–85 (8th Cir.2006)). Reversal for evidentiary insufficiency is only warranted when, based on the evidence before it, “no reasonable jury could have found the defendant guilty beyond a reasonable doubt.” United States v. Espinosa, 585 F.3d 418, 423 (8th Cir.2009) (quoting United States v. Thompson, 533 F.3d 964, 970 (8th Cir.2008)).

Diaz–Pellegaud was convicted at trial of conspiring to launder money in violation of 18 U.S.C. § 1956(h). “Conspiring to launder money ... requires that the defendant ‘agreed with another person to violate the substantive provisions of the money-laundering statute.’ ” United States v. Heid, 651 F.3d 850, 854 (8th Cir.2011) (quoting United States v. Hynes, 467 F.3d 951, 964 (6th Cir.2006)). The substantive money laundering provision that Diaz–Pellegaud was convicted of having conspired to violate has four elements: (1) that the defendant conducted or attempted to conduct a financial transaction that affected interstate or foreign commerce; (2) that the financial transaction involved property representing the proceeds of illegal activity; (3) that the defendant knew that the property represented the proceeds of illegal activity; and (4) that the defendant conducted the financial transaction knowing that the transaction was intended to promote the carrying on of illegal activity. 18 U.S.C. § 1956(a)(1)(A)(i); see United States v. Slagg, 651 F.3d 832, 844 (8th Cir.2011). Bank account deposits count as financial transactions for the purposes of the money laundering statute. 18 U.S.C. § 1956(c)(3). For example, in United States v. Johnson, 619 F.3d 910 (8th Cir.2010), we upheld a promotion-of-illegal-activity money laundering conviction based on the defendant's deposits of the proceeds of methamphetamine sales into a bank account controlled by a co-conspirator. Id. at 919–20.

Diaz–Pellegaud argues that the Government did not introduce any evidence connecting him to any financial transactions and that all the Government showed was that he read “a series of numbers which correlated to Wells Fargo bank accounts” over the phone to a co-conspirator, Dario Verdugo–Galaviz. He also argues that there is little to corroborate the trial testimony of Verdugo–Galaviz.

Verdugo–Galaviz testified that both he and a fellow drug dealer named Carlos Clemente “Camargo” Perez–Pantaleon had deposited money from their Sioux Falls drug distribution operation into bank accounts designated by Diaz–Pellegaud in order to pay him for drugs. As the payments continued, drugs continued to arrive in Sioux Falls. Evidence from other cooperating witnesses established that money from the accounts was later withdrawn in Phoenix. The jury was entitled to credit such testimony. See United States v. Boyce, 564 F.3d 911, 916 (8th Cir.2009) (holding that a fact-finder's determination as to the credibility of a witness is virtually unreviewable on appeal).

Viewing all the evidence in the light most favorable to the Government and accepting all reasonable inferences, Yarrington, 634 F.3d at 449, a reasonable jury could find that Diaz–Pellegaud agreed with Verdugo–Galaviz and Camargo that they would deposit the proceeds from their drug sales into his bank accounts to pay Diaz–Pellegaud for the drugs he was supplying and to ensure their continued supply of drugs. Given that their deposits would be violations of § 1956(a)(1)(A)(i), Johnson, 619 F.3d at 919–20, this agreement would be sufficient to support the conviction of Diaz–Pellegaud for conspiracy under § 1956(h). Therefore, we affirm this...