United States v. Sandra Milena Nieves

666 F. App'x 778
CourtCourt of Appeals for the Eleventh Circuit
DecidedNovember 10, 2016
Docket16-10297
StatusUnpublished

This text of 666 F. App'x 778 (United States v. Sandra Milena Nieves) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eleventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Sandra Milena Nieves, 666 F. App'x 778 (11th Cir. 2016).

Opinion

PER CURIAM:

Eileen Santos and Sandra Nieves were convicted as participants in a counterfeit currency conspiracy. They both challenge their convictions, raising numerous issues regarding the district court’s evidentiary rulings, its instructions to the jury, and the sufficiency of the evidence. Nieves also challenges her sentence.

*781 I.

A grand jury indicted Santos, Nieves, Ramon Rodriguez, and Carlos Fuentes as participants in a counterfeit currency scheme. Count One charged all four defendants with conspiracy to pass or attempt to pass or possess counterfeit currency. Count Two charged all four with substantively possessing counterfeit currency. Count Three charged Fuentes alone with passing or attempting to pass counterfeit currency. And Count Four charged Nieves alone with passing or attempting to pass counterfeit currency. All of those charges arose under 18 U.S.C. § 472.

Rodriguez and Fuentes reached plea deals with the government, while Santos and Nieves proceeded to trial. At Santos and Nieves’ joint trial, Rodriguez testified that he learned about the scheme, which already involved Santos and Nieves, from Fabian Ortiz and his father Jorge Ortiz. 1 He testified that Fabian and Nieves hid counterfeit currency in the lining of suitcases in order to smuggle it into this country from Colombia. Then the group would go to various stores' and buy low-cost items with counterfeit $100 bills, receiving real money as change for their purchases. In addition to the counterfeit currency, the group would carry authentic $100 bills and withdrawal receipts from legitimate banks. That way, if a group member got caught, he or she could say that it was an innocent mistake and that the bad bill had come from a bank.

Rodriguez testified that at one point he traveled across the East Coast with Santos, Nieves, Fuentes, and Jorge, exchanging counterfeit currency along the way. 2 As they became more experienced, they realized that it was especially easy to pass counterfeit currency at Target stores. Santos even joked that Target “was an easy target.”

At trial Santos and Nieves attempted to introduce, for impeachment purposes, evidence of Rodriguez’s prior convictions for a slew of crimes including grand theft, possession of cocaine, and possession of-a fictitious license. The district court sustained the government’s motion to exclude the convictions. The result was that on Rodriguez’s cross-examination Nieves and Santos impeached him not with his prior convictions but by having him confirm that he was testifying as part of a plea deal and by asking him about discrepancies between his testimony and his initial statements to the police.

The government also called Fuentes as a witness. He stated that he had personally seen Santos and Nieves pass counterfeit currency multiple times on their East Coast trip. When he tried to testify that Jorge had told him that Santos and Nieves had gone to Colombia to collect counterfeit bills, Santos objected. She argued that admitting Jorge’s out-of-court statement implicating her would violate Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968), because Jorge was not available for cross-examination. 3 The court overruled that objection and allowed Fuentes to repeat Jorge’s statement.

In addition, the government offered circumstantial evidence that Santos and Nieves had passed or possessed counterfeit currency. It presented security camera footage of Santos visiting multiple Target *782 stores within the span of an hour during the East Coast trip. And it offered bank records showing that Nieves visited the same cities as the others during the East Coast trip, and that she had traveled to Colombia.

As evidence of its charge that Nieves individually had passed or attempted to pass counterfeit currency (Count Four), the government called Joseph Aguilera, a police officer with the Casselberry (Florida) Police Department. He testified that he had been dispatched to a Casselberry Walmart because Nieves had attempted to pass a.counterfeit bill. When he arrived at the Walmart he took a statement from Nieves, who claimed that the bad bill had come from her bank. During his investigation at the Walmart, the Walmart manager gave Aguilera the counterfeit bill, and Aguilera placed and sealed it in a signed evidence bag. During Aguilera’s direct examination at trial, the government proffered that bill as evidence, and the court admitted it over Nieves’ objection. The government did not call the Walmart cashier who had received the counterfeit bill from Nieves.

Another government witness, Agent Jeffrey Seeger of the United States Secret Service, described his investigation of the counterfeit currency ring. He explained that an undercover buy from Fabian and searches of Fabian’s car, motel room, and suitcases resulted in the seizure of over $280,000 in counterfeit currency. He also testified that the serial number on the Casselberry Walmart counterfeit bill matched the serial number of several counterfeit bills seized during those searches.

After the government’s case in chief, Santos testified in her own defense. She stated that she had thought the East Coast trip had an innocent purpose and that she didn’t know that the others were passing counterfeit bills. Nieves’ son and ex-boyfriend also testified; both stated that Nieves was never a member of any counterfeit currency ring.

After both sides rested, the district court instructed the jury that it could find that the defendants “knowingly” possessed and attempted to pass counterfeit currency if the evidence proved beyond a reasonable doubt that the defendants had every reason to know the counterfeit nature of the bills but deliberately shut their eyes to that fact. The court overruled Santos’ objection to that “deliberate ignorance” instruction. The jury found Santos and Nieves guilty on all counts.

Nieves’ presentence investigation report (PSR) found her responsible for $289,200 in loss—the total amount of counterfeit currency the government had seized from the conspirators during its investigation. It also found that part of Nieves’ offense took place outside the United States, triggering a two-level increase to her offense level. See United States Sentencing Guidelines § 2B5.1(b)(5) (Nov. 2Ó15). Nieves objected to both findings. At Nieves’ sentence hearing the government called Agent Seeger to support the PSR’s recommendations; he testified that Fabian had told him that Nieves had brought back $176,000 in counterfeit currency over the course of two trips to Colombia.

The district court adopted the PSR in full. It calculated Nieves’ advisory guidelines range to be 46 to 57 months and sentenced her to 46 months imprisonment. Santos, who had been charged with and convicted of one count less than Nieves and whose specific offense characteristics did not include having committed an “offense outside the United States” was sentenced to 7 months imprisonment.

II.

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Bluebook (online)
666 F. App'x 778, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-sandra-milena-nieves-ca11-2016.