United States v. Vallandares-Quintana

• Court: Court of Appeals for the First Circuit
• Decided: August 5, 1998
• Docket: 96-2093
• Status: Unpublished

Opinion

[NOT FOR PUBLICATION--NOT TO BE CITED AS PRECEDENT]

United States Court of Appeals For the First Circuit

No. 96-2093

UNITED STATES, Appellee,

v.

NICOLAS VALLADARES-QUINTANA, Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Juan M. Perez-Gimenez, U.S. District Judge]

Before

Torruella, Chief Judge, Campbell, Senior Circuit Judge, and Stahl, Circuit Judge.

Jorge E. Rivera-Ortiz on brief for appellant. John C. Keeney, Acting Assistant Attorney General, Criminal Division, U.S. Department of Justice, with whom Theresa M.B. Van Vliet, Chief, Narcotic and Dangerous Drug Section, Criminal Division, U.S. Department of Justice, Lena D. Watkins, Associate Deputy Chief, Criminal Division, U.S. Department of Justice, Gary DiBianco, Trial Attorney, Narcotic and Dangerous Drug Section, Criminal Division, U.S. Department of Justice, and Susana Lorenzo- Giguere, Trial Attorney, Narcotic and Dangerous Drug Section, Criminal Division, U.S. Department of Justice, were on brief for appellee.

July 30, 1998 CAMPBELL, Senior Circuit Judge. Nicolas Valladares- Quintana ("Valladares") appeals from his conviction in the district court on one count of money laundering. He alleges that the district court abused its discretion by excluding his proffer of exculpatory evidence, that the evidence was insufficient to establish his guilt, and that the court erred when it calculated his sentence. After consideration, we affirm.

I. As appropriate upon an appeal from a criminal conviction, we state the facts in the light most favorable to the jury verdict. See United States v. Gonzalez-Maldonado, 115 F.3d 9, 12 (1st Cir. 1997). The jury could have found the following. As part of a federal undercover operation, FBI Special Agent Martin Suarez infiltrated a money-laundering organization in Puerto Rico. That organization received large quantities of United States currency generated by cocaine distribution, exchanged the currency for monetary instruments in small denominations, and arranged for transportation of those instruments to Columbia. Beginning in late 1993, Agent Suarez laundered money for an organization code-named "Roberto Diez." Several deliveries of drug money from Roberto Diez were made to Agent Suarez. One such delivery was made by Reynaldo Escobar-Mosquera ("Escobar"), who was indicted but testified for the government at Valladares's trial. The transaction that involved Valladares took place on January 17, 1994. On that date, someone from Roberto Diez paged Agent Suarez. Agent Suarez responded by calling a cellular phone rented to Valladares. Agent Suarez and Valladares set up a meeting at which Roberto Diez was to deliver money to Agent Suarez. Agent Suarez proceeded to the agreed meeting place, where he saw Escobar and a then-unidentified man sitting in a black Jeep Cherokee. After Agent Suarez and Escobar exchanged greetings from their vehicles, the second man got out of the Cherokee carrying a box. The second man placed the box, which contained roughly $190,000, on the rear passenger seat of Agent Suarez's car. At that time, Agent Suarez looked directly at the second man from a distance of approximately three or four feet. The second man then got back into the Cherokee and drove off with Escobar. Several weeks later, when Agent Suarez reviewed the driver's license photographs of persons associated with Escobar's company, "Hacienda Remini," he identified Valladares as having been the second man at the January 17 encounter. The January 17 delivery was observed by at least two other witnesses, agents on an FBI surveillance team: Special Agent Adalberto Rivera and Special Agent Luis Fraticelli. Agent Rivera was parked near the black Jeep Cherokee. He photographed the transaction with a zoom lens from a distance of 100 to 150 feet, and these photographs were introduced into evidence. Valladares appeared in two of the photographs. At one point, Escobar and Valladares came within fifty feet of Agent Rivera. Agent Fraticelli observed Valladares not only at the transaction but afterwards when he followed the black Jeep Cherokee. Both agents picked out Valladares's driver's license photo from among several others. Valladares and three co-defendants were named in a second superseding indictment returned on September 27, 1995. Valladares was charged with two counts: conspiracy to distribute cocaine and money laundering. At trial, the government presented the testimony of Escobar as well as of Agents Suarez, Rivera and Fraticelli. All four witnesses testified that Valladares had participated in the January 17 delivery. Further, Escobar testified that he, Valladares, and a man named Miguel Torres, distributed cocaine in Puerto Rico. He stated that the three men started a corporation called "Hacienda Remini," a name derived from the first name of each founder, to launder the money produced by their drug distribution. According to Escobar, Valladares knew the details of and participated fully in the drug and money-laundering operation. Valladares's defense was that he was unaware of Escobar's criminal activities and that the federal agents were mistaken when they identified him as a participant at the January 17 delivery. Valladares, and two defense witnesses, testified that Valladares engaged in only legitimate business and that, to the best of their knowledge, Escobar had accrued his wealth by gambling. To show that he had been misidentified, Valladares was prepared to testify that a United States Customs Service investigation report (the "USCS Report") had incorrectly identified Valladares as the individual who delivered $950,000 in currency during a November 25, 1993 money transfer. Valladares contended that, since the Customs Service used the same identification methodology as did the FBI, its earlier mistaken identification of him cast doubt on his present identification. In his opening statement, Valladares's attorney promised the jury that he would present evidence regarding the earlier misidentification. The court, however, excluded the USCS Report as lacking in relevance, reasoning that the federal agents had identified Valladares based on their first-hand observations of him during the January 17 transaction. Valladares was convicted of money laundering and acquitted of the drug conspiracy charge. The Pre-Sentence Report ("PSR") recommended a base offense level of twenty. On top of that base, the PSR recommended several enhancements. The first was a three-level increase because Valladares knew that the laundered funds arose from unlawful activity. See U.S.S.G. 2S1.1(b)(1). Second, the PSR recommended a two-level increase for obstruction of justice because, it concluded, Valladares had committed perjury by denying at trial any involvement in the criminal enterprise. SeeU.S.S.G. 3C1.1. Lastly, the PSR included a one-level increase because Valladares laundered more than $100,000 but less than $200,000. See U.S.S.G. 2S1.1(b)(2). The PSR, therefore, recommended a total offense level of twenty-six. In addition, the PSR indicated a fine range running from a minimum of $12,500 to a maximum of $500,000. See U.S.S.G. 5E1.2(c)(3), 5E1.2(c)(4). Valladares objected in the district court to the two- level adjustment for obstruction of justice and to the inclusion of acquitted conduct in the PSR. He did not, however, object to the three-level increase based on his knowledge of the criminal nature of the laundered funds. Valladares sought an offense level of twenty-four, two levels lower than the PSR's recommendation. The district court overruled Valladares's objections, sentenced him to seventy-eight months in prison, and fined him $12,500. Valladares appealed.

II. A. Exclusion of the USCS Report. Valladares argues on appeal that the court's exclusion of the USCS Report was an abuse of discretion that prevented him from presenting the "core" of his defense to the jury and violated his Sixth Amendment rights. We review a court's exclusion of evidence for abuse of discretion. See United States v. Brandon, 17 F.3d 409, 444 (1st Cir. 1994). Even if a lower court abuses its discretion, we will affirm unless the error affected the defendant's substantial rights. See Fed. R. Evid. 103(a). In a direct criminal appeal implicating constitutional rights, we will affirm if the government shows there was no reasonable possibility that the excluded evidence would have affected the jury verdict, i.e. that any error was "harmless beyond a reasonable doubt." United States v. Mulinelli-Navas, 111 F.3d 983, 992 (1st Cir. 1997) (quoting Chapman v. California, 386 U.S. 18, 24 (1967)) (internal quotation marks omitted). Valladares contends that the USCS Report would reveal that he was mis-described as a participant in a November 25 money- laundering transaction in Puerto Rico. Actually, Valladares says he was in Miami at the time. The district court excluded the report because of its lack of relevance, stating that Valladares had to establish that the agents "were mistaken because [Valladares] wasn't there [on January 17,] not because two months prior other agents made a mistake[] as to his identity." Cf. 2 Joseph M. McLaughlin, Weinstein's Federal Evidence 401.04[2][e][ii], at 401-29 (2d ed. 1997) ("Evidence, though otherwise relevant, may be excluded because it is too remote in space or time from the proposition being proved."). When ruling on remote evidence, the judge must "weigh its probative value against the dangers of unfairness, confusion, and undue expenditure of time on collateral issues." Id. For a variety of reasons, we see no abuse of discretion in the exclusion of the USCS Report. First, even if it had revealed an earlier mistaken identification, we doubt its relevance. Cf. Jordan v. Ducharme, 983 F.2d 933, 938 (9th Cir. 1993) (holding that a defendant's Sixth Amendment rights were not violated by the exclusion of evidence "that some person, not the witnesses in court, had mistakenly identified [the defendant] as the robber in other crimes for which he was not being tried"). Moreover, even supposing arguendo that a misidentification made two months earlier has probative value to disprove a subsequent identification made by a different agent in a different governmental agency, the USCS Report does not show that agents mistakenly placed Valladares at the scene on November 25. The USCS Report makes reference to the fact that the pagers used to facilitate the November deal were rented to Valladares: this did not necessarily indicate that Valladares was physically present at the November 25 exchange in Puerto Rico. The participants were described only as "two white hispanic males, approximately 45 to 50 years old." Hence, the USCS Report failed to support even the questionable point asserted by the defense. Valladares contends that the USCS Report had relevance because the government was planning to produce its author to testify that Valladares participated in the November 25, 1993 incident. There is simply no record support for this assertion. The government denies any such intention and, in any case, no such witness was called. The USCS Report, in brief, fails even the most basic test of logical relevance: it does not make a later misidentification any more or less likely than it would be otherwise. See Fed. R. Evid. 401 (noting that the minimum requirement for admissibility is that a piece of evidence have a "tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence"). Lacking relevance, the report was not admissible, see Fed. R. Evid. 402 ("Evidence which is not relevant is not admissible."). Obviously, the exclusion of immaterial evidence did not violate Valladares's constitutional rights. See Taylor, 484 U.S. at 410 ("The accused does not have an unfettered right to offer testimony that is incompetent, privileged, or otherwise inadmissible under standard rules of evidence."); United States v. Rodriguez Cortes, 949 F.2d 532, 546 (1st Cir. 1991) (finding harmless error). B. Sufficiency of the Evidence. Valladares next argues that the evidence against him was insufficient, as a matter of law, to support his conviction for money laundering. When a defendant brings a sufficiency challenge, "our task is to determine whether any rational jury, taking the evidence in its totality and in the light most flattering to the government, could have found appellant guilty beyond a reasonable doubt." United States v. Zannino, 895 F.2d 1, 9 (1st Cir. 1990). In making this inquiry, we resolve all credibility questions in favor of the verdict. See United States v. Batista-Polanco, 927 F.2d 14, 17 (1st Cir. 1991). To prove the money-laundering charge, the government had to show beyond a reasonable doubt that Valladares, knowing that the property involved in a financial transaction represents the proceeds of some form of unlawful activity, conduct[ed] or attempt[ed] to conduct such a financial transaction which in fact involv[ed] the proceeds of specified illegal activity

(B) knowing that the transaction [was] designed in whole or in part

(i) to conceal or disguise the nature, the location, the source, the ownership, or the control of the proceeds of specified unlawful activity; . . . . 18 U.S.C. 1956(a)(1); see also Gonzalez-Maldonado, 115 F.3d at 20-21. The term "financial transaction," as used in 1956(a)(1), includes only dealings that affect "interstate or foreign commerce," or that involve "the use of a financial institution which is engaged in, or the activities of which affect, interstate or foreign commerce in any way or degree." 18 U.S.C. 1956(c)(4). The record does not bear out Valladares's contention that the government failed to show that the January 17 transaction implicated interstate or foreign commerce. Both Agent Suarez and another FBI Agent named Siverio testified that the money they "laundered" was sent to Columbia. Agent Suarez stated under oath that he had sent approximately twenty million dollars out of the country over the years of his undercover investigation. The January 17 transaction was merely one more delivery in the series of FBI deals. In light of the fact that 1956(a)(1) requires that a transaction have only a de minimis effect on interstate commerce, see United States v. Peay, 972 F.2d 71, 74 (4th Cir. 1992), a reasonable jury could have concluded that the government met its burden of showing the requisite nexus to interstate commerce. Valladares also argues that his acquittal on the conspiracy count implies that the government did not prove beyond a reasonable doubt that he knew of the illicit nature of the laundered funds or even that the money represented proceeds from a specified unlawful activity. When reviewing the sufficiency of the evidence, the only question before this court is whether the evidence at trial could have supported the conviction made. SeeZannino, 895 F.2d at 9. Acquittal on one count of a multi-count indictment is not a factor in this inquiry; sufficiency-of-the- evidence review "should be independent of the jury's determination that evidence on another count was sufficient." United States v. Powell, 469 U.S. 57, 67 (1984). We do not give weight to an acquittal even where verdicts are logically inconsistent because such verdicts might reflect only that the jury acquitted "through mistake, compromise, or lenity." Id. As part of its case, the government presented four witnesses who testified regarding Valladares's participation in the January 17 transaction. The witnesses placed that transaction in the context of many similar dealings, all of which had the goal of funneling to Columbia money illicitly obtained from cocaine distribution. When Valladares dropped the money into Agent Suarez's car, he said, "This is for Flaco," a Columbian supplier of cocaine. Further, Escobar stated under oath that he and Valladares were partners who, for several years, obtained drugs from Columbia, distributed those drugs, and collected money for them. On several occasions, Escobar and Valladares stored drugs at their home. Escobar testified as to Valladares's many telephone calls discussing drug and money-laundering transactions and the government played tapes of those calls at trial. The record amply provides a basis for a jury to conclude that the proceeds were the fruit of drug-related activity and that Valladares knew that fact. Valladares further contends the government failed to show that he knew the transactions were designed to conceal or disguise the nature of the money with the aim of converting the fruits of criminal enterprise into less detectable forms. But the government met its burden here as well. A reasonable jury could conclude, from the evidence presented, that Valladares knew of the necessity for secrecy. Escobar testified that he and Valladares kept their drug money hidden in the trunk of their car during the day and slept with it at night. They did not deposit it in the bank, Escobar testified, for fear of immediate arrest. In addition, Valladares took elaborate precautions to make sure that the January 17 transaction was not discovered. In his telephone call on that day and calls on other days, he used code words designed to confuse anyone who might be listening in. These actions support a finding that Valladares intended to conceal the source of the $190,000 that he delivered to Agent Suarez. In sum, the record contains sufficient evidence to support the jury's guilty verdict. C. Two-level Enhancement for Obstruction of Justice. Valladares assails the court's imposition of a two-level sentence enhancement for obstruction of justice. See U.S.S.G. 3C1.1. (increasing by two the offense level of a defendant who "willfully obstructed or impeded, or attempted to obstruct or impede, the administration of justice during the investigation, prosecution, or sentencing of the instant offense."). Perjury may be such an obstruction of justice. See U.S.S.G. 3C1.1 comment (n.3(b)) (stating that the enhancement is triggered by "committing, suborning, or attempting to suborn perjury"); United States v. Dunnigan, 507 U.S. 87, 98 (1993) ("Upon a proper determination that the accused has committed perjury at trial, an enhancement of sentence is required by the Sentencing Guidelines [ 3C1.1]."). The court found that Valladares perjured himself by denying at trial under oath his presence and participation in the January 17 transaction. That finding must be supported by a preponderance of the evidence, see United States v. Clark, 84 F.3d 506, 509 (1st Cir. 1996), and we review it only for clear error, see United States v. McKeeve, 131 F.3d 1, 15 (1st Cir. 1997); Batista-Polanco, 927 F.2d at 22. The district court's finding that Valladares perjured himself has ample support. Valladares testified unequivocally and under oath that he had no involvement in the January 17 transaction and was misidentified as having taken part in it. However, Valladares's presence at the delivery was photographed. He was observed on that day by three federal officers and a co-defendant, all of whom gave sworn testimony as to his presence and involvement in the transaction. In these circumstances, a finding of perjury was not clear error. Valladares argues that the district court improperly based its enhancement for perjury on only the jury verdict and failed to make the findings suggested by the Supreme Court in United States v. Dunnigan, 507 U.S. 87 (1993). In Dunnigan, the Court stated that, when a court imposes a sentence enhancement for perjury, "it is preferable for a district court to address each element of the alleged perjury in a separate and clear finding." See id. at 95. Specific findings, the Court explained, protect against sentence enhancement based merely on the fact that a defendant's testimony was inconsistent with a guilty verdict. See id. (observing that not all testimony at odds with the verdict was necessarily false). We do not agree that the court abdicated its duty to make an independent inquiry into Valladares's testimony. It referred to the federal perjury statute and made an express finding of perjury. The court identified the testimony upon which it was basing the enhancement and referred explicitly to Dunnigan, noting that Valladares had a "[c]onstitutional right to testify on his own behalf but not to provide intentional falsehoods." It is not fatal that the court did not make express findings as to each of the elements of perjury. The Dunnigan Court explained that a "determination that enhancement is required is sufficient . . . [provided] the court makes a finding of an obstruction of, or impediment to, justice that encompasses all of the factual predicates for a finding of perjury." Dunnigan, 507 U.S. at 95. We have added that "[a] sentencing court . . . is not required to address each element of perjury in a separate and clear finding." United States v. Matiz, 14 F.3d 79, 84 (1st Cir. 1994). The court's discussion of the two-level enhancement and finding of perjury was, in all the circumstances, sufficient. Valladares criticizes one particular statement that the court made: "the jury returned a guilty verdict against the defendant which clearly establishes that his testimony was not considered truthful nor was it the result of confusion, mistake or faulty memory." To hold that a guilty verdict, without more, implies that a defendant's exculpatory testimony was false could be troubling in some cases. See Dunnigan, 507 U.S. at 95 (noting that a defendant's "testimony may be truthful, but the jury may nonetheless find the testimony insufficient to excuse criminal liability or prove lack of intent"). In a case like this, however, where the defendant categorically denied being present during the criminal transaction, the verdict provides a valid yardstick by which to measure the truth of the defendant's testimony. If the jury believed Valladares was not present on January 17, it would have had to acquit. Valladares's conviction, if it implies anything at all, shows that the jury thought Valladares participated in the January 17 transaction. Since his presence directly contradicts his sworn testimony, the court's remark was not improper in the circumstances of this case. We conclude that the district court's findings were sufficient to support its two- level enhancement pursuant to 3C1.1. D. Three-Level Enhancement for Knowledge of Criminal Activity. For the first time, Valladares also challenges on appeal the district court's three-level enhancement under U.S.S.G. 2S1.1(b)(1), which increases an offense level if the defendant "knew or believed that the [laundered] funds were the proceeds of an unlawful activity involving the manufacture, importation, or distribution of narcotics or other controlled substances." U.S.S.G. 2S1.1(b)(1). Valladares did not object in the district court to the three-level enhancement. He challenged "the inclusion in the Presentence Report of the offense conduct set forth from Pages 3 to Paragraph 2 at 7," which included background information on the drug syndicate and the government's investigation, but he did not object either to the three level enhancement or to the facts supporting that enhancement on pages ten and eleven of the PSR. In fact, Valladares's attorney told the sentencing court that his objection was designed to allow "only so much [information about the drug-related activity as] . . . would be necessary to sustain any finding that the three level increase." Further, the offense level that Valladares recommended in his statement of objections to sentencing included the three-level enhancement. A defendant who fails to raise an objection in the sentencing court waives his ability to do so on appeal, except in extraordinary circumstances. See United States v. Benjamin, 30 F.3d 196, 197 (1st Cir. 1994) (stating that a sentencing challenge should not "be addressed for the first time on appeal"). Thus, we may reverse Valladares's enhancement under U.S.S.G. 2S1.1(b)(1) only if it constituted "plain error." See id. In order to meet that standard, Valladares must prove: (i) a reviewable error occurred during sentencing; (ii) the error was clear or obvious; and (iii) the error affected his "'substantial rights,' which in most cases means that the defendant must make a specific showing that the error probably affected his sentence." United States v. Olivier-Diaz, 13 F.3d 1, 5 (1st Cir. 1993). Valladares sketches several brief arguments, but falls far short of the mark. First, he points out a minor inconsistency in the government's case: the government's closing referred to a telephone call between Agent Suarez and Valladares on January 17, but Agent Suarez testified that he did not talk to anyone other than Escobar on that date. As neither the PSR nor the sentencing court relied on this bit of testimony, we cannot discern its import and Valladares does not elaborate. Second, Valladares repeats his earlier argument that the evidence was not sufficient to support a finding that he knew or believed the money that he laundered was the fruit of criminal labor. We have already rejected this argument in the context of sufficiency of the evidence, but note in addition that the PSR alone pointed to sufficient evidence to support this enhancement. The PSR made reference to Escobar's testimony that Valladares had assisted him "countless times in the delivery of multi-thousands of dollars for payment of the drug load in Miami, Florida." In addition, the PSR noted that approximately 100 kilograms of cocaine were stored at Valladares's home just prior to the January 17 transaction. Valladares cannot challenge these facts before us because he failed to do so below. See Benjamin, 30 F.3d at 197 ("[A] defendant may not challenge the findings in his PSR if he has failed to object to that report in the district court."). These findings alone provide solid support for the court's three-level enhancement. Finally, Valladares suggests that the court's enhancement is inconsistent with his acquittal on the only drug-related count of the indictment against him. As noted above, we will not scrutinize an acquittal in an attempt to discern its meaning. Seesupra. In addition, the standard of proof at sentencing preponderance of the evidence is substantially lower than the "beyond a reasonable doubt" standard used at trial. We have said in the past, and reaffirm today, that a court may rely on acquitted conduct at the sentencing phase if the conduct meets the lower standard of proof used at sentencing. See United States v. Ovalle- Marquez, 36 F.3d 212, 223 (1st Cir. 1994) (noting that an acquittal "does not mean, however, that the court could not consider that conduct as 'relevant conduct' [for sentencing purposes]"); United States v. Carrozza, 4 F.3d 70, 80 (1st Cir. 1993) ("Relevant conduct increases a defendant's sentence, sometimes very significantly, despite the fact that it was not charged in an indictment and even despite the fact that a jury may have acquitted the defendant for that precise conduct." (citation omitted)). After having reviewed the evidence, we are convinced that Valladares's knowledge of Escobar's drug business was sufficiently established to support a sentence enhancement. Thus, we conclude that the enhancement for criminal knowledge under 2S1.1(b)(1) was not plain error. E. Amount and Calculation of the Fine. Although Valladares purports to challenge the amount of his fine, his brief is devoid of argument. It is well settled that "issues adverted to in a perfunctory manner, unaccompanied by some effort at developed argumentation, are deemed waived." Zannino, 895 F.2d at 16. Accordingly, Valladares has waived contest of his fine. Affirmed.