United States Court of Appeals
For the First Circuit
No. 01-2134
UNITED STATES OF AMERICA,
Appellee,
v.
BASILIO RIVERA-RODRÍGUEZ,
Defendant, Appellant.
__________________
No. 01-2315
UNITED STATES OF AMERICA,
Appellee,
v.
OSCAR E. TRINIDAD-RODRÍGUEZ,
Defendant, Appellant.
___________________
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Juan M. Pérez-Giménez, U.S. District Judge]
Before
Boudin, Chief Judge,
Howard, Circuit Judge,
and Shadur,* Senior District Judge.
Armando Porrata-Doria with whom Nicolas Nogueras, Jr. was on
*
Of the Northern District of Illinois, sitting by designation.
brief for appellant Basilio Rivera-Rodríguez.
Wayne C. Raabe, Department of Justice, Criminal Division,
Narcotic and Dangerous Drug Section, for the United States.
Kenneth I. Seiger, by appointment of the court, for appellant
Oscar Trinidad-Rodríguez.
Wayne C. Raabe, Department of Justice, Criminal Division,
Narcotic and Dangerous Drug Section, for the United States.
January 29, 2003
BOUDIN, Chief Judge. In this decision, we address the
appeals of Basilio Rivera Rodriguez ("Rivera") and Oscar Trinidad
Rodriguez ("Trinidad") who were convicted along with Elena Corchado
Peralta of conspiring to launder money. 18 U.S.C. §§ 1956(a)(1)(B)
and (h) (2000). The principal conspirator was Corchado's husband,
Ubaldo Rivera Colon ("Colon"), a drug dealer who was the source of
the laundered funds, and who pled guilty and testified at the joint
trial. The Rivera and Trinidad transactions have some resemblance
to each other but are quite distinct from those of Corchado, see
whose appeal is addressed in a separate decision.
At the outset, both Rivera and Trinidad challenge the
sufficiency of the evidence. Because the jury convicted, we
describe the evidence for purposes of this claim of error in the
light most favorable to the government. United States v. Gomez,
255 F.3d 31, 35 (1st Cir. 2001). Colon himself was a major drug
dealer who earned several million dollars in profits smuggling
cocaine into Puerto Rico during the period between 1987 and 1996.
Rivera and Trinidad are accused only of participating in
transactions to launder the proceeds.
As the indictment was framed, the government had to show
that each defendant:
1. conducted "a financial
transaction" involving the proceeds of some
form of unlawful activity, "knowing" that the
proceeds were thus tainted; and
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2. knew that the transaction was
"designed in whole or in part . . . to conceal
or disguise the nature, the location, the
source, the ownership or the control of the
proceeds . . . ."
18 U.S.C. § 1956(a)(1). The defendant is not required to know what
type of felony spawned the proceeds but only that some felony did
so. Id. § 1956(c)(1). And "knowledge" can be established by
showing that a defendant was "wilfully blind" to facts patently
before him. See United States v. Frigerio-Migiano, 254 F.3d 30, 35
(1st Cir. 2001)
Trinidad. We begin with Trinidad, who engaged with
Colon in several transactions related to speedboat purchases. In
1994, Trinidad, who raced speedboats, was introduced to Colon, who
was also a speedboat enthusiast. Colon and Trinidad testified that
at this meeting Colon held himself out as a legitimate car and
cattle businessman. As a result of their meeting, Colon suggested
that they purchase an expensive speedboat, Budweiser, as a joint
venture.
In May 1994, Colon took $100,000 from a hiding place on
a cattle farm and gave it to Trinidad. Trinidad then gave two
associates $18,000 of the money to purchase two manager's checks
apiece from different banks in the amount of $9,000 each. Trinidad
himself also purchased manager's checks in approximately the same
amount from two different banks. These checks totaling $36,000,
along with other funds contributed by Colon totaling $100,000, were
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deposited in a boat merchant's bank account, and were used to buy
Budweiser.
The title of the boat eventually was placed in Trinidad's
name. Trinidad testified that it was placed in his name because
the two of them had a sports partnership. Trinidad, however, put
up no money for the purchase of the speedboat, and it was Colon
alone who later decided to sell it. However, during a tax
investigation, Trinidad falsely told local agents that he had paid
for the boat.
Trinidad also aided Colon in similar transactions. On at
least one occasion, he carried $200,000 in cash to Florida as part
of the purchase of another speedboat for Colon. (Trinidad
testified that although he knew he was carrying cash for Colon, he
did not know the amount). Colon also gave Trinidad over $60,000
in cash to pay for boat maintenance and parts. Trinidad also
assisted Colon in the latter's unsuccessful attempt to buy a South
Florida apartment for cash.
On appeal, Trinidad concedes that the evidence sufficed
to show that he knew the transactions he took part in were designed
to conceal the source of the funds involved; the size of the cash
transactions together with the use of $9,000 deposits, just under
the limit for bank reporting, see 31 C.F.R. § 103.22(b)(1) (2002),
bears this out. However, he disputes whether a reasonable jury
could find that he knew that transactions involved illegal
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proceeds. His primary argument is that he did not know that Colon
had been a drug dealer.
Under the statute, it would be enough if a jury could
conclude that some felony--drug dealing is merely the most obvious
candidate--was so obviously the source that Trinidad had to know
it. 18 U.S.C. § 1956(c)(1). Indeed, because governing law equates
willful blindness with knowledge, Frigerio-Migiano, 254 F.3d at 35,
it would suffice for the jury to conclude that Trinidad consciously
averted his eyes from the obvious explanation for the funds; he did
not have to witness drug dealing or hear a confession. And the
jury was free to draw common-sense inferences from the nature of
the transactions and efforts to conceal.
Here, Colon engaged in very large cash transactions
involving Trinidad (the initial purchase and the Florida delivery)
and more than one such venture occurred. With Trinidad's help,
Colon patently splintered the deposits to amounts just under
$10,000, a step serving only to avoid bank reporting. And Colon
placed the boat in Trinidad's name even though Trinidad had
contributed nothing.
Sometimes one of these red-flag events--cash,
concealment, false ownership--can occur even with lawfully derived
income (e.g., to foster tax evasion or the concealment of income
from a spouse). But taken together, the pattern was surely that of
an effort to launder illegally obtained proceeds, or at least a
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jury could reasonably so conclude. The case law is consistent with
this view. See United States v. Hurley, 63 F.3d 1, 12 (1st Cir.
1995), cert. denied, 517 U.S. 1105 (1996); United States v. Carr,
25 F.3d 1194, 1203 (3d Cir. 1994); cert. denied, 513 U.S. 939
(1994).
After his conviction, the court sentenced Trinidad to 63
months' imprisonment. In computing the offense level, the court
imposed a six-level upward adjustment under U.S.S.G. section 2S1.1
because it determined that Trinidad was responsible for the entire
amount of money laundered by Colon's conspiracy.1 The court also
denied a downward departure for aberrant behavior under U.S.S.G.
section 5K2.20 on the ground that Trinidad did not meet the
requisite criteria for such a departure. After challenging both of
these rulings in the lower court, Trinidad appeals them here.
We begin with the upward adjustment. The sentencing
guidelines provide that the offense level for money laundering
convictions be calculated with reference to the amount of money
laundered. U.S.S.G. § 2S1.1. In a conspiracy, the amount
attributed to a defendant includes not only that which he handled
but also the amount he could reasonably have foreseen would be
laundered through the conspiracy. See United States v. White, 116
1
The 2000 edition of the guidelines was in effect at the time
of Trinidad's sentencing, and thus they control our decision here.
See United States v. Harotunian, 920 F.2d 1040, 1041-42 (1st Cir.
1990) (guidelines in effect at time of sentencing control unless Ex
Post Facto considerations prohibit their use).
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F.3d 948, 951 (1st Cir. 1997); U.S.S.G. § 1B1.3(a)(1) (2000). At
the sentencing hearing, the trial court determined that Trinidad
could reasonably have foreseen the entire amount of funds laundered
by the conspiracy, U.S.S.G. § 1B1.3, which was in excess of $2
million, warranting a six-level increase in Trinidad's base offense
level. See U.S.S.G. § 2S1.1(b)(2)(G).
At the sentencing hearing and on appeal, Trinidad has
argued that he could have reasonably foreseen only the amount of
money implicated in the transactions in which he actually took
part, about $330,000, which would merit only a two-level increase.
U.S.S.G. § 2S1.1(b)(2)(C). The court's determination of the amount
of money attributable to Trinidad is a factual finding that we
review for clear error. United States v. Alicea, 205 F.3d 480, 485
(1st Cir.), cert. denied, 531 U.S. 909 (2000). The government has
the burden of showing by a preponderance of the evidence that
Trinidad could have reasonably foreseen the funds attributed to
him. Id.
At the hearing, the court ruled that the full amount was
foreseeable:
[I]t would seem to me that it would not
be unreasonable for Mr. Trinidad to see all
the amounts of money being floated around to
inquire a little deeper into [Colon's]
activities and it would seem to me that from
the testimony of [Colon], his car dealership
and his farm were just shams, fronts to be
able to participate in all the laundering
activities that he did. So, I think that he
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[Trinidad] is responsible for the amount of
money involved in the whole conspiracy . . . .
Admittedly, Trinidad was convicted of participating in a
single money laundering conspiracy with Colon, Corchado, Rivera and
others. But this was obviously one of those so-called single
conspiracies in which Colon remained the constant and most other
participants came and went and engaged in specific transactions
without any agreement on an overall amount of money to be
laundered. The jargon calls this a hub and spoke conspiracy (Colon
being the hub and the others being spokes) but with the added
complications of discontinuous transactions and changes in
membership over time.
The money laundering guideline gives no clue as to how to
decide how much of the conspiracy's laundering to attribute to any
individual member. This task is left to the relevant conduct
guideline which, in a nutshell, makes this the sum of two figures:
(1) how much was involved in transactions in which Trinidad
participated (regardless of whether he knew the exact amount), and
(2) the amounts he reasonably foresaw would be handled in other
transactions undertaken as part of the same "jointly undertaken
criminal activity." U.S.S.G. § 1B1.3(a)(1). Our concern here is
with the latter figure.
There is no direct evidence cited to us--in the pre-
sentence report, in the district judge's findings, or even in the
government's brief--that Trinidad was aware of any money laundering
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transactions beyond those in which he participated. Indeed, the
only useful information on this score from the government was
furnished at oral argument where it reported that Trinidad had
introduced Rivera to Colon and also given Rivera some helpful
deposition testimony in a civil case.2 But it would be quite a
leap to conclude even by a preponderance of the evidence that
Trinidad therefore knew anything about specific transactions that
Rivera had handled, let alone those handled by others.
From the district judge's remarks we think that he
probably had in mind a different theory, namely, that Trinidad must
have conceived from the scale of Colon's expenditures in the
Trinidad-related transactions, and from whatever Trinidad could see
of Colon's style of life, that Colon's drug proceeds and therefore
his laundering operations must have extended well beyond the few
transactions in which Trinidad was employed. In effect, the
district judge was saying, we think, that Trinidad should not have
been surprised to find that Colon was laundering at least $2
million. This may well be a defensible judgement.
However, given the lack of evidence, we are not confident
from the district judge's remarks that he was distinguishing
2
The trial transcript indicates only that Trinidad had worked
as a boat mechanic for Rivera and that he introduced Colon to
Rivera, possibly at a boat race in which Rivera and Colon were both
involved. The false statement referred to is an affidavit offered
by Trinidad in support of Rivera in a civil case in which the
latter was a plaintiff.
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between Colon's operations as a whole and the foreseeable "jointly
undertaken" money laundering--which, alone, is Trinidad's
responsibility. U.S.S.G. § 1B1.3(a)(a). If Trinidad knew that
others were engaged in the same time frame in performing similar
transactions for Colon, that would go very far to satisfy this
concern. Perhaps there is some such evidence or other evidence
that would suggest that Trinidad had some notion of the full scope
of his own conspiracy. But the government has not pointed us to
this evidence and we will not simply assume that it exists.
Admittedly, Trinidad is not attacking here the jury's
implicit finding of a single conspiracy--a concept so vague and
relaxed under governing case law that attacking it would be
difficult. See United States v. Martinez-Medina, 279 F.3d 105,
113-14 (1st Cir.), cert. denied, 122 S. Ct. 2608 (2002). But
foreseeability does not delimit the scope of a conspiracy, which
may extend to activities quite unknown to a low-level participant--
and thereby result in joinder, admission of hearsay, and other
conventional consequences. See id. at 113 & n.3. Under conspiracy
law, it is only one's substantive liability for the crimes of other
conspirators that depends on a foreseeability test, see Pinkerton
v. United States, 328 U.S. 640, 645-48 (1946). No Pinkerton
instruction or amount findings were involved in this case so we
have no idea what amounts from other transactions the jury thought
was foreseeable to Trinidad.
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Under the guidelines, Trinidad is responsible for the
entire $2 million only to the extent that he could foresee that
Colon was using this single conspiracy or joint undertaking to
launder all of his drug money (why this would be so or even likely
is unclear) or, perhaps more plausibly, that the specific
conspiracy or joint undertaking in which he (Trinidad) was involved
was large enough to encompass $2 million. See U.S.S.G. § 1B1.3.
Evidence in the present record, or otherwise, may bear on this
question (possibilities are suggested above); but the burden of
proof is on the government and we have not yet been pointed to the
necessary evidence.
Trinidad also challenges the sentencing court's ruling
that he was not entitled to a downward departure for aberrant
behavior. A denial of a downward departure is generally non-
reviewable. See United States v. Pierro, 32 F.3d 611, 619 (1st
Cir. 1994), cert. denied, 513 U.S. 1119 (1995). The exception to
this rule are cases in which the lower court's failure to depart
stemmed from a misapprehension of its authority under the
guidelines. Id. Here, Trinidad argues that the district court did
misunderstand its authority under the guideline in question.
The pertinent guideline provides: "A sentence below the
applicable guideline range may be warranted in an extraordinary
case if the defendant's criminal conduct constituted aberrant
behavior. . . ." U.S.S.G. § 5K2.20. There are certain categorical
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exclusions (e.g., for a defendant with a prior conviction) but
apparently they are not applicable to Trinidad. The commentary
adds this:
"Aberrant behavior" means a single criminal
occurrence or single criminal transaction that
(A) was committed without significant
planning; (B) was of limited duration; and (C)
represents a marked deviation by the defendant
from an otherwise law-abiding life.
Id., comment. (n.1). It also lists some non-exclusive factors that
may bear on the discretionary choice.3
In denying Trinidad's request for a downward departure,
the trial court said that it was not authorized to grant a downward
departure on the present facts until there is a "clear indiction"
that a "combination" of elements was sufficient to justify a
departure. The district court did not spell out what it meant; but
a controversy under this rubric ("combination of factors") pre-
existed this guideline, was the subject of case law, and is
addressed in the guideline's history. Almost certainly this is
the context for the district court's reference.
Until the November 2000 edition of the guidelines, no
guideline specifically addressed aberrant behavior. Instead, case
law developed, pearl-like, around a single longstanding sentence in
3
"In determining whether the court should depart on the basis
of aberrant behavior, the court may consider the defendant's (A)
mental and emotional conditions; (B) employment record; (C) record
of prior good works; (D) motivation for committing the offense; and
(E) efforts to mitigate the effects of the offense." Id. comment
(n.2).
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an introductory comment to the effect that departures were not
precluded for "single acts of aberrant behavior." See U.S.S.G. ch.
1 pt. (A)(4)(d) (2000). Case law, referred to in the amendment
that added section 5K2.20 to the 2000 edition of the guidelines,
had produced a splintering of views among the circuits as to how
strictly the phrase "single act" should be read; some courts looked
for a single and spontaneous occurrence; others, including this
circuit, rejected any very narrow requirement, saying that
aberrancy should be based upon a totality of the circumstances.
See U.S.S.G. App. C 603; United States v. Grandmaison, 77 F.3d 555,
563 (1st Cir. 1996).
In the 2000 amendment adding section 5k2.20, the
Commission declared that "the amendment addresses the circuit
conflict but does not adopt in toto either the majority or minority
circuit view on this issue." U.S.S.G. App. C 603. Instead, taking
together the new guideline itself, its commentary, and the
amendment's lengthy "reason for amendment," the Commission adopted
what is effectively a multi-part scheme: first, the defendant must
meet all of the express qualifications in application note 1 (the
indented text quoted above) and not be excluded by any of the
express exclusions in the guideline itself (which are here
irrelevant); and second, once aberrant behavior is found to exist,
the court may weigh a series of considerations including those
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specifically identified (non-exclusively) in application note 2
(quoted above in the footnote).
Further, the "reasons for amendment" make clear that the
Commission intended "to relax slightly" the very strict view taken
by some circuits as to the requirement of a single act but to
reject the "totality of circumstances" approach adopted by other
circuits as "overly broad and vague." Id. The first purpose was
served by adopting in place of "simple act" the phrases "single
criminal occurrence and "single criminal transaction," with the
caution that they be limited to offenses with all three
characteristics set forth in application note 1. Id. The second
purpose was served by the structured requirement of application
note 1 (and by the exclusions in the guideline itself).
Presumably, the Commission appreciated that the third
required characteristic--"marked deviation . . . from an otherwise
law-abiding life"--is itself quite open-ended. But the first two
are not open-ended: they require a lack of significant planning and
limited duration. It is impossible to see how Trinidad's conduct,
which embraced a reasonably elaborate scheme of multiple deposits
and transfers in the first transaction (Budweiser) followed later
by two more transactions (the second boat and the unsuccessful
apartment purchase) could be called a "single" criminal occurrence
or transaction done without significant planning and of limited
duration. Even if we assume arguendo that the Budweiser scheme
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alone might barely qualify, Trinidad's continued engagement was
hardly of limited duration.
Thus, whatever the district court meant by its remark,
the downward departure was not available to Trinidad. In all
likelihood, the court meant that until the current guideline is
changed, the totality of the circumstances test--in the sense
intended by our pre-amendment decision in Grandmaison, is not
available. In this, the district court is certainly right.
Grandmaison and cases like it do survive the amendment but only in
a limited and different respect, namely, in the slight relaxation
of the "single act" requirement--a relaxation itself not sufficient
to embrace Trinidad's multiple transactions. Of course, depending
on the government's foreseeability evidence, he may still end up
with a lighter sentence.
Rivera. Basilio Rivera-Rodriguez operated a business
called BVF Construction. The government's evidence focused on a set
of transactions made by Colon and Rivera through that business. In
the first of these, which took place in June 1995, Colon gave
Rivera upwards of $105,000 (of which $89,000 was in cash) to
deposit in a BVF bank account. Rivera then purchased a manager's
check in the amount of $105,000, which was then given to a boat
company--with other compensation--as payment for a 46-foot racing
boat. Colon then took possession of the boat. Later, in November,
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Rivera wrote checks from the BVF account to Colon for $2,900 in
unspecified boat expenses.
In the second set of transactions, Colon in August 1995
wrote a check to BVF Construction for $130,000. On the same day,
Colon's father wrote a check for $65,000 to BVF, drawing upon his
son's drug money. This money was deposited in a BVF account, where
it stayed, untouched, until November 1995, when Rivera wrote checks
to Colon for nearly the full amount deposited--$192,900.
The government argues that Rivera's BVF corporation
effectively served as a clearing house for Colon's drug funds.
Thus, when Colon decided to purchase the boat, he did it with money
channeled through BVF so as to muddy the trail of the purchase.
Similarly, by depositing $195,000 in the BVF account and
withdrawing it later, the government argues that Colon hoped to
give that money a patina of legitimacy.
At trial, inconsistent stories were told as to the
purpose of the transactions. Colon testified that he had given
funds to BVF to invest in the construction of ATM bank branches,
and that he then withdrew some of the funds when he needed to make
other purchases. Colon admitted that no bank branches were ever
built. Evidence was also given that Rivera--who did not testify at
trial--had said in a deposition in a civil case that the payments
to Colon were for labor that Colon had performed. But again, Colon
testified that he had never performed any labor for Rivera or BVF.
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Rivera objects on appeal that there was no evidence that
he conspired or that he knew that the transactions were intended to
disguise the source of funds or that he knew that the funds were
the proceeds of drug dealing or any other unlawful activity. On
the contrary, the pattern was a classic example of money
laundering. See United States v. Martinez-Medina, 279 F.3d 105,
116 (1st Cir. 2002); B. Williams & F. Whitney, Federal Money
Laundering: Crimes and Forfeitures § 5.1.6.11, at 167 (1999).
In one case, a huge cash payment into a business, for no
demonstrated legitimate reason, was followed by the use of the
funds to purchase property for the original depositor. In the
other case, an outsider's money was run into the business and then
backed out to the depositor, again with no apparent reason except
to provide a seemingly legitimate source.
From these facts, a reasonable jury could conclude that
the obvious, and only plausible, explanation was that Colon was
trying to disguise the origin of his proceeds by making it appear
that the money had come to him from a legitimate business; that
the obvious explanation for this conduct was that the funds were
illegally derived, most likely from drug dealing; and that these
facts were necessarily apparent to Rivera. As for "conspiracy," an
agreement between Colon and Rivera can plainly be inferred from the
fact that the transactions occurred at all, even though the
conversations and quid pro quo are unknown to us.
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Of course, payments by anyone--including a drug dealer--
to a business and payments back out may be legitimate in context:
Colon could have sent a check to a mutual fund and received
dividends in exchange. It is the details--the cash, the near
equivalence of dollars in and out, and above all the lack of
legitimate motive--that distinguish this case. E.g., United States
v. Carr, 25 F.3d 1194, 1203 (3d Cir. 1994), cert. denied, 513 U.S.
939 (1994). It is not logically impossible for there to have been
some legitimate explanation for the transactions; but one who is
caught with a smoking gun and a dead victim can hardly complain if,
absent some explanation, the jury draws the natural inferences from
the facts.
In addition to challenging the sufficiency of the
evidence, Rivera makes several other claims. First, he contends
that the trial court failed to give a limiting instruction to the
jury with respect to the testimony of a government witness, Nelson
Biaggi. Biaggi was the attorney for the bank where BVF
Construction kept its accounts. Rivera had previously sued the
bank, and Biaggi was present at a deposition in that case where
Rivera made statements relevant to this prosecution. On appeal,
Rivera claims that the judge should have instructed the jury as to
Biaggi's pecuniary interest in the outcome of Rivera's criminal
case.
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Although Rivera (unsuccessfully) objected to Biaggi's
testimony when he testified, his counsel never asked the judge to
charge the jury regarding the testimony. As such, we review the
failure to give the instruction only for plain error. United
States v. Vega-Figueroa, 234 F.3d 744, 757 (1st Cir. 2000). No
error, let alone a plain one, occurred here. Rivera presents no
evidence here that Biaggi would have profited from Rivera's
conviction, and the trial judge stated at the sentencing hearing
that he found that no such link was present. Rivera's citation to
United States v. Frank, 494 F.2d 145 (2d Cir.), cert. denied 419
U.S. 828 (1974), is inapposite: there, the witness in a criminal
case was the plaintiff in a related pending civil case against the
defendant and so stood to gain from his testimony. Id. at 158-59.
Rivera also challenges--in a three sentence argument--
the decision of the trial judge to proceed with the sentencing
hearing despite the fact that only Rivera's sentencing attorney,
and not his trial attorney, was present. Although represented,
Rivera apparently did not object to this decision below and thus
the test is again plain error. In all events, Rivera neither
explains how he was prejudiced nor points us to case law supporting
his position. This cursory treatment of the issue amounts to a
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forfeit. United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990),
cert. denied, 474 U.S. 1082 (1990).4
Finally, Rivera argues that the district court erred by
declining to give him a downward departure for aberrant behavior
and a downward adjustment for being a minor participant under
U.S.S.G. sections 5K2.20 and 3b1.2, respectively, and by applying
a five-level enhancement based on the amount of laundered funds
pursuant to § 2S1.1(b). None of these claims was raised at the
sentencing hearing, and so we review only for plain error.
The district court's refusal to allow a downward
departure for aberrant behavior is quickly dealt with: we may
review such a decision only if "the district court acted in the
mistaken belief that it lacked the ability to depart." See United
States v. Pierro, 32 F.3d 611, 619 (1st Cir. 1994). The transcript
of the sentencing hearing shows that the judge explicitly stated
that he understood that he had the authority to depart but
concluded that the departure was not warranted. As for the refusal
to grant a downward adjustment for minor participant status, the
district court found that Rivera was one of "the prime sources" of
the money laundering and Rivera fails to show why this was error,
let alone plain error.
4
His counsel at sentencing did complain that he had not seen
a copy of the pre-sentence report but apparently the court pointed
out that it had been sent to trial counsel and counsel at
sentencing made no request for an adjournment.
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As for upward adjustments in offense level, there was a
three-level adjustment because Rivera knew or believed that drug
proceeds were involved, U.S.S.G. § 2S1.1(b)(1), and a further two-
level increase because the amount exceeded $200,000. Id. § 2S1.1
(b)(2)(C). Plain error aside, we think (for reasons indicated
above) that Rivera did know or believe that drug funds were
involved. As to amount, Rivera--unlike Trinidad--was held liable
only for the amount that passed through the BVF Construction
accounts.
Trindad's conviction is affirmed but his sentence is
vacated and the matter remanded for resentencing consistent with
this opinion. Rivera's conviction and sentence are both affirmed.
It is so ordered.
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