United States v. Guerrero
| Docket Number | 22-6015 |
| Decision Date | 07 August 2023 |
| Citation | 76 F.4th 519 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Rudy GUERRERO, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Appeal from the United States District Court for the Eastern District of Kentucky at Lexington. No. 5:21-cr-00136-4—Danny C. Reeves, Chief District Judge.
ON BRIEF: Gal Pissetzky, PISSETZKY LAW, LL, Chicago, Illinois, for Appellant. Charles P. Wisdom, Jr., James T. Chapman, UNITED STATES ATTORNEY'S OFFICE, Lexington, Kentucky, for Appellee.
Before: GRIFFIN, McKEAGUE, and MURPHY, Circuit Judges.
Defendant Rudy Guerrero was convicted of conspiracy to commit money laundering. He challenges his conviction on several grounds, including variance and venue, as well as his sentence and an evidentiary ruling by the district court. Because the errors he alleges are either not prejudicial or not error at all, we affirm his judgment and sentence.
The facts of this case involve a money laundering scheme, organized by a person unknown to law enforcement ("Defendant One") who operated as a money broker for drug organizations that wanted to move money from the United States to Mexico. Defendant One orchestrated the receipt of cash in the United States, the conversion of the cash into cryptocurrency, and the conversion of the cryptocurrency back into cash in Mexico.
Agents of the Drug Enforcement Agency (DEA) managed to infiltrate the operation. An undercover agent (the "coordinating agent"1) would receive from Defendant One a list of cities in which drug proceeds needed to be obtained, would choose cities, and then coordinate with the DEA.2 The DEA would select another undercover agent (the "receiving agent") to participate in the scheme by receiving illicit funds. The DEA would give the coordinating agent the receiving agent's phone number and a bill code.3 The coordinating agent would pass that information on to Defendant One, who would pass it on to his client. The receiving agent's information would end up with the client's contacts in the chosen city, so that a money drop of the client's money could be arranged. The receiving agent would then be contacted, and the money drop would be set up and executed, with the receiving agent obtaining illicit funds from a courier. The receiving agent would then deposit the funds in an undercover DEA bank account. The money was then transferred to Defendant One as cryptocurrency, after which it would eventually be sent back to the client as cash.
Defendant Guerrero worked at a car dealership in the Chicago area. He was involved as a courier in three separate money drops with DEA Agent Corona in Chicago in May 2020. Corona's undercover information was passed by DEA Agent Stout—operating out of Lexington, Kentucky—to Defendant One, who passed it on to an unknown male (UM), who coordinated the drops via phone. On May 6, 2020, UM told Corona to meet with a man at a location near the car dealership where Guerrero worked. There, Guerrero verified Corona's bill code, then asked Corona to move his car to a side street. Subsequently, Guerrero put a backpack containing almost $150,000 into Corona's car. Guerrero also gave about $150,000 to Corona in a similar fashion on May 8 and May 12, 2020, in drops again coordinated by UM. The second drop was at the same location as the first, but the third drop took place closer to Guerrero's residence, because he was not working that day. During at least the May 6 and May 8 drops, Guerrero indicated that he knew he was delivering $150,000. The money in the bags for each drop was wrapped in rubber bands and heat-sealed in plastic. This process occurred in a nearly identical manner in multiple different cities with multiple couriers and receiving agents, including twice in Lexington, Kentucky. UM coordinated at least one other drop involving a different courier than Guerrero.
On December 9, 2021, a grand jury indicted Defendant One, Guerrero, and several other couriers, including Carlos Gonzalez, Warren Miller, Anthony Cossu, and Oscar Palacios Espericuete, with conspiracy to launder money. On May 29, 2022, Guerrero moved to transfer venue from the Eastern District of Kentucky to the Northern District of Illinois, arguing that he only participated in allegedly illicit activity in Illinois. The district court denied the motion, stating:
[T]he government's proffered evidence, supported by the factual bases included in the plea agreements of co-defendants, demonstrates that Guerrero's co-conspirators took actions in furtherance of a single conspiracy in this district. And venue is proper in any district where a co-conspirator took an action in furtherance of the conspiracy.
Guerrero went to trial, where he was tried alone. At the close of the Government's evidence, Guerrero moved for a directed verdict, which was denied. During Guerrero's closing argument, his counsel began to expound on Kotteakos v. United States, 328 U.S. 750, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946), detailing the law on hub and spoke conspiracies. The Government objected to these statements, and the district court sustained the objection. Guerrero was convicted of the sole count in the indictment—conspiracy to commit money laundering.5 Guerrero filed a Rule 29 Motion for Acquittal, challenging the sufficiency of the evidence and arguing that the Government did not prove him guilty of the charged conspiracy (a conspiracy between all individuals named in the indictment), but rather only of a more limited conspiracy between himself and Defendant One. He also filed a Rule 33 motion for a new trial, making similar arguments. The district court denied the motions. Guerrero was sentenced to eighty months' imprisonment. During sentencing, Guerrero requested an acceptance of responsibility reduction and a minimal participant role reduction, which the district court declined to grant. Guerrero timely appealed.
Guerrero continues to argue on appeal that his conviction must be overturned due to a variance6—namely, that the evidence at trial failed to demonstrate an overarching conspiracy between himself and each individual named in the indictment, but rather demonstrated only a smaller conspiracy between himself and Defendant One. "Whether single or multiple conspiracies have been shown is usually a question of fact to be resolved by the jury under proper instructions and to be considered on appeal in the light most favorable to the government." United States v. Grunsfeld, 558 F.2d 1231, 1238 (6th Cir. 1977) (per curiam). Because Guerrero raised this issue before the district court, we will "reverse his conviction if a variance occurred and that variance affected his substantial rights." United States v. Caver, 470 F.3d 220, 235 (6th Cir. 2006).
A fatal variance is "a theory of error often raised but seldom seen." United States v. Williams, 612 F.3d 417, 423 (6th Cir. 2010). A variance occurs where "the terms of the indictment 'are unchanged, but the evidence at trial proves facts materially different from those alleged in the indictment.' " United States v. Fields, 763 F.3d 443, 467 (6th Cir. 2014) (quoting United States v. Chilingirian, 280 F.3d 704, 711 (6th Cir. 2002)). In a conspiracy case, a variance may arise where the indictment charges a single conspiracy and the evidence at trial instead demonstrates multiple, separate conspiracies. See id. But to overturn his conviction, a defendant must demonstrate more than that a variance occurred: he must demonstrate that he was prejudiced by the variance—that "trying multiple conspiracies under a single indictment substantially influenced the outcome of the trial." Caver, 470 F.3d at 237. Whether a variance occurred in this case is a difficult question that we need not answer, because Guerrero has failed to demonstrate that he was prejudiced by the alleged variance.
"The fact that a variance has been demonstrated, standing alone is not per se prejudicial." United States v. Feagan, 472 F. App'x 382, 387 (6th Cir. 2012) (citing United States v. Osborne, 545 F.3d 440, 443 (6th Cir. 2008)). The defendant bears the burden to demonstrate prejudice. Chilingirian, 280 F.3d at 712. In this context, prejudice can occur where (1) "the defendant is unable to present his case and is 'taken by surprise by the evidence offered at trial,' " (2) "the defendant is 'convicted for substantive offenses committed by another,' " or (3) the jury transfers "spillover" guilt due to improperly joined defendants or improperly admitted evidence. United States v. Swafford, 512 F.3d 833, 843 (6th Cir. 2008) (citations omitted); see also United States v. Williams, 998 F.3d 716, 731 (6th Cir. 2021). A variance is prejudicial if it had a "substantial and injurious effect or influence in determining the jury's verdict." Kotteakos, 328 U.S. at 776, 66 S.Ct. 1239.
Guerrero argues only that he was prejudiced by the possibility of guilt transference, alleging that the evidence of multiple conspiracies "create[d] the improper impression of greater culpability . . . [and] lowered the government's burden of proof." Appellant's Br. at 35. In determining whether the possibility of guilt transference was sufficiently prejudicial, this Court has looked to several factors, including: "(1) the number of conspiracies the evidence establishes, (2) the number of non-conspiratorial co-defendants tried with defendant, and (3) the size of the conspiracy alleged in the indictment." United States v. Peatross, 377 F. App'x 477, 485 (6th Cir. 2010); see also United States v. Sokbay Lim, 556 F. App'x 440, 446 (6th Cir. 2014).
Here, the potential for guilt transference or jury confusion was quite limited. Guerrero was not tried with any co-defendants, let alone a "large number." Swafford, 512 F.3d at 843. The jury was thus not tasked with determining the guilt of anyone but Guerrero. The total number of individuals...
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