United States Court of Appeals
For the First Circuit
No. 07-2126
UNITED STATES OF AMERICA,
Appellee,
v.
JUAN CEDEÑO-PÉREZ,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Salvador E. Casellas, U.S. District Judge]
Before
Lynch, Chief Judge,
Leval,* and Lipez, Circuit Judges.
Juan J. Hernández López de Victoria for appellant.
Timothy R. Henwood, Assistant United States Attorney, with
whom Nelson Pérez-Sosa, Assistant United States Attorney, and Rosa
Emilia Rodriguez-Velez, United States Attorney, were on brief, for
appellee.
August 26, 2009
*
Of the Second Circuit, sitting by designation.
LIPEZ, Circuit Judge. After delivering more than
$200,000 to an Immigrations and Customs Enforcement ("ICE") agent
posing as a money launderer, Juan Cedeño-Pérez ("Cedeño") was
charged with conspiracy to commit money laundering. At trial, the
government presented evidence from a confidential informant who ran
the money laundering operation, the ICE agent who accepted the
money from Cedeño, and others involved in the investigation.
Cedeño was convicted. He moved for a judgment of acquittal at all
appropriate times, arguing that the evidence was insufficient to
establish that he possessed the mental state required for
conspiracy to commit money laundering. The court denied the
motion, and Cedeño appealed. We affirm.
I.
A. Factual Background
In a sufficiency challenge, we state the facts in the
light most favorable to the verdict. United States v. Upton, 559
F.3d 3, 6 (1st Cir. 2009).
In 2003 and 2004, ICE investigated drug trafficking and
money laundering conducted by the Toloza family of Colombia.
Acting in conjunction with confidential informant Werner Romero,
ICE agents in Puerto Rico posed as money launderers for the
Tolozas, and accepted deliveries of large quantities of cash
resulting from payments for the Tolozas' drugs. ICE deposited the
money in bank accounts provided by the Tolozas, from which it was
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withdrawn inside Colombia.1 Transfer through the accounts was
intended to remove the "taint" of drug trafficking. See United
States v. Torres-Velazquez, 480 F.3d 100, 102 (1st Cir. 2007)
(describing the Toloza money-laundering scheme).
Romero received money laundering "contracts" directly
from "Juanito" Toloza, a member of the Toloza family. Juanito
would call Romero, ask if he was willing to transfer money from
Puerto Rico to Colombia, and then provide a phone number for the
individual who would deliver the cash. Romero would then contact
the deliverer and use code words to communicate that he was the
intended recipient of the money. For example, Romero would
identify himself on the phone as "Ricardo, on behalf of Juanito."
In other cases, code numbers were used. Romero and the deliverer
would then agree on a meeting place to transfer the money,
sometimes also using code words. Meetings were usually in public
places, such as parking lots, to ensure safety.
On August 4, 2003, undercover ICE agent Luis Ortiz,
posing as a money launderer and an associate of Romero, contacted
Cedeño through a phone number provided to Romero by Juanito
1
Although the record does not explain why the government
was willing to have the illegal proceeds in its possession
ultimately withdrawn by the Toloza family from the bank accounts
into which they were deposited, we assume that the government
determined that this step was necessary to establish the
involvement of all the defendants in this large conspiracy,
including the Tolozas themselves. See infra section II.
-3-
Toloza.2 Ortiz identified himself as calling "on behalf of
Ricardo," which was, he testified, "the code [Cedeño] [wa]s waiting
for to know that [it wa]s the correct person calling him." Cedeño
responded that he had spoken with "Ricardo," and told Ortiz that
the "documents" were ready for delivery. As Ortiz described, "[w]e
don't talk about currency like that on the phone. . . . [A]lmost
everybody that deals with this kind of business knows the documents
are currency." Ortiz told Cedeño that he had to receive the
currency before 2 p.m., because "I can't stay through the night
with that." As Ortiz later explained, the money had to be
transferred early enough to be deposited in a bank the same day, or
he would have to "watch" the currency through the night. Cedeño
and Ortiz then agreed on a location to make the transfer. After
Cedeño suggested a particular location, Ortiz told him, "the area
there, the sun is a little hot over there," using coded language to
indicate a heightened police presence. Cedeño then agreed to
transfer the money at a different location, the Home Depot parking
lot in Plaza Escorial.
Sometime later that day, Ortiz learned from Romero that
Cedeño was trying to reach him. Ortiz then called Cedeño, who told
him that he would be delayed. Ortiz responded that he was "not
going to wait there long. You know how this is."
2
ICE recorded this phone call, as well as two others
between Ortiz and Cedeño, and the recordings were played at trial.
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Meanwhile, Puerto Rico police discovered an abandoned car
in the parking lot where Cedeño and Ortiz had agreed to meet.3
When Cedeño arrived, he became unsettled by the presence of the
police. He told Ortiz, "Let's get out of here. Let's get out of
here." Ortiz responded that Cedeño should "calm down," and pointed
out that the police were occupied by the car and would not notice
the money transfer. Still, Cedeño was uncertain about proceeding.
After walking around the mall parking lot, he returned and asked
Ortiz, "Are we going to do it here, or are we going to leave out of
here [sic]?" Ortiz again tried to reassure Cedeño that they could
make the transfer. Cedeño went to his car, and began taking a bag
out of his trunk. He appeared scared. He asked Ortiz, "Can I do
it now?" Ortiz said yes, and Cedeño brought the bag to Ortiz's
car. Ortiz asked him if he had "checked this," and Cedeño said
that he had. Inside the bag was $200,094, in twenty, ten, five,
and one-dollar denominations, bound together with rubber bands and
plastic straps. Ortiz left with the currency.
Sometime later, Ortiz and Cedeño spoke again on the
phone. Ortiz told Cedeño that "everything [wa]s fine," and that he
had "already arrived." Cedeño responded, "Okay, my brother," and
said, "I am going to call that man now. My man." As Ortiz
explained at trial, deliverers typically notify their "bosses" that
3
Puerto Rico police officers who discovered the car were
not working with ICE and apparently had no knowledge of the planned
meeting.
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the delivery occurred and that they are no longer responsible for
the currency. Federal agents arrested Cedeño on October 15, 2004.
B. Proceedings in the District Court
On September 27, 2004, a federal grand jury returned a
sealed indictment charging twenty-four individuals with conspiracy
to commit money laundering, conspiracy to possess with intent to
distribute narcotics, and several forfeiture charges. Cedeño was
named in Count I, conspiracy to commit money laundering, and Count
III, a forfeiture charge. The indictment charged Cedeño with
conspiring to commit two "modalities" of money laundering,
"promotional" money laundering and "concealment" money laundering.
See United States v. Iacaboni, 363 F.3d 1, 4 n.7 (1st Cir. 2004).
A person commits "promotional" money laundering if,
(1) "knowing that the property involved in a financial transaction
represents the proceeds of some form of unlawful activity," he
(2) "conducts or attempts to conduct such a financial transaction
which in fact involves the proceeds of specified unlawful
activity," (3) "with the intent to promote the carrying on of
specified unlawful activity." 18 U.S.C. § 1956(a)(1)(A)(i). In
"concealment" money laundering, only element (3) differs: the
person conducts the financial transaction "knowing that the
transaction is designed in whole or in part . . . to conceal or
disguise the nature, the location, the source, the ownership, or
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the control of the proceeds of specified unlawful activity." 18
U.S.C. § 1956 (a)(1)(B)(i).
During a three-day trial involving only Cedeño in
February 2007, the government presented four witnesses, including
Romero and Ortiz, and two other government agents. At the close of
the government's case, Cedeño moved for judgment of acquittal,
which the court denied. See Fed. R. Crim. P. 29(a). The defense
presented no witnesses and then renewed its motion for judgment of
acquittal, which was again denied. On the government's motion, the
court dismissed the forfeiture count. The jury was instructed on
conspiracy to commit money laundering, and was given a willful
blindness instruction. See United States v. Rivera-Rodríguez, 318
F.3d 268, 271 (1st Cir. 2003). It returned a verdict of guilty.
On February 23, 2007, Cedeño renewed his motion for
judgment of acquittal and, in the alternative, moved for a new
trial under Federal Rule of Criminal Procedure 33. He argued,
inter alia, that the evidence presented at trial was insufficient
to prove that he both (1) knew that the money involved in the
August 4, 2003 transaction was the "proceeds of some form of
unlawful activity," and (2) either (as required for "promotional"
money laundering) intended to promote the carrying on of that
activity, or (as required for "concealment" money laundering) knew
that the transaction was designed "to conceal or disguise the
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nature, the location, the source, the ownership, or the control of
the proceeds."
The district court denied Cedeño's motion. It held that
a rational jury could have concluded that both required mental
states had been established beyond a reasonable doubt. First, in
light of the fact that the defendant "delivered a large amount of
cash, a bag full of approximately $200,000 in small denominations,
at a shopping mall parking [lot]," and used code words to establish
a time and place to hand over the money, a rational jury could
conclude beyond a reasonable doubt that Cedeño knew he was handling
money derived from an illegal activity. Second, in light of the
large amount of money, the small-denomination bills, the telephone
conversations about the time and place of delivery, and Cedeño's
anxiety about police activity at the delivery, a rational jury
could conclude, beyond a reasonable doubt, that Cedeño knew the
transaction was "meant to conceal the origin and nature of the
funds he delivered, and that his actions were intended to promote
unlawful activity."
Cedeño now appeals. His sole argument on appeal is again
that the evidence was insufficient to prove that he possessed the
mental states required for a conviction of conspiracy to commit
money laundering.
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II.
To determine whether the evidence is sufficient to
sustain a conviction, we ask "whether the evidence, viewed in the
light most favorable to the prosecution, would permit a rational
jury to find each essential element of the crime charged beyond a
reasonable doubt." United States v. Frigerio-Migiano, 254 F.3d 30,
33 (1st Cir. 2001) (quotation marks and citation omitted). We
consider the evidence as a whole, as well as "reasonable
inferences" that jurors "may draw . . . from the evidence based on
shared perceptions and understandings of the habits, practices, and
inclinations of human beings." United States v. Morillo, 158 F.3d
18, 22 (1st Cir. 1998) (quotation marks and citation omitted).
Here, to obtain a conviction for conspiracy to commit
money laundering, the government had to establish the existence of
two mental states: (A) Cedeño's knowledge that the money
transferred on August 4, 2003 "represent[ed] the proceeds of some
form of unlawful activity"; and (B) Cedeño's "intent to promote"
that unlawful activity, or his knowledge that the transaction was
"designed . . . to conceal or disguise the nature, the location,
the source, the ownership, or the control of the proceeds." See 18
U.S.C. § 1956(a)(1)(A)(i), (a)(1)(B)(i); see also Frigerio-Migiano,
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254 F.3d at 33 (describing the "twofold" "knowledge requirement"
for money laundering).4
In the alternative, the government could have established
Cedeño's guilt by proving that he was willfully blind to the facts
constituting the offense. Although the district court instructed
the jury on willful blindness, we do not reach Cedeño's argument
that the evidence was insufficient to establish willful blindness,
because we conclude that a rational jury could find that Cedeño
knew that the money he transferred derived from unlawful activity.
A. Proceeds of an Unlawful Activity
In arguing that the evidence presented at trial did not
establish that he knew the unlawful origin of the money transferred
in the August 4, 2003 transaction, Cedeño points out that he did
not discuss the money's origin during any of the telephone calls
with Ortiz, and that the ICE investigation did not reveal the
origin of the money. Cedeño also argues that his connection with
the money laundering scheme was attenuated; Romero testified that
he was uncertain if he had spoken with Cedeño, and that the Toloza
family was unfamiliar with him.
4
Although Cedeño was charged with conspiracy to commit money
laundering under 18 U.S.C. § 1956(h), we have previously held that
to sustain a conviction for conspiracy to commit money laundering,
the evidence must show that the defendant possessed the mental
state required for the substantive offense. See United States v.
Corchado-Peralta, 318 F.3d 255, 257, 258 n.2 (1st Cir. 2003);
Frigerio-Migiano, 254 F.3d at 33.
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A conviction for money laundering does not require that
the defendant know the precise origin of the property transferred,
but only that it came "from some form, though not necessarily which
form, of activity that constitutes a felony under State, Federal,
or foreign law." 18 U.S.C. § 1956(c)(1) (defining the phrase
"knowing that the property involved in a financial transaction
represents the proceeds of some form of unlawful activity"); accord
Corchado-Peralta, 318 F.3d at 258. Here, as Ortiz described,
Cedeño recognized and used code words to identify the intended
recipients of the money, Romero and Ortiz. In particular, he used
the expression "documents" to conceal the fact that he was
delivering currency. Cedeño agreed to avoid a drop off location
that was "hot," or too close to police activity. During the drop
off Cedeño became "excited" and "kind of scared" by the presence of
the police in the parking lot. He told Ortiz that they should "get
out of here." When Ortiz finally convinced him to transfer the
money despite the police presence, Cedeño asked Ortiz, "Can I do it
now?," further reflecting his desire to avoid police detection.
Cedeño knew that the plastic bag he transferred contained $200,000
in mixed small-denomination bills. Romero testified at trial that
only "a trusted person," an "employee[], part of the chain," would
be assigned to deliver that much money, since others would steal
it. The jury heard a phone call in which Cedeño told Ortiz that he
had spoken with "Ricardo," Romero's money-laundering alias.
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From this evidence, a rational jury could have concluded,
beyond a reasonable doubt, that Cedeño knew that the money came
from some form of unlawful activity. The jury could have reasoned
that Cedeño's use of code words and his concern about police
detection reflected an awareness that the currency he was
transferring derived from unlawful activity. This inference would
have been strengthened by the large amount of currency, the small-
denomination bills, their storage in a plastic bag, and the
transfer in a parking lot, all of which the jury could have
reasonably regarded as suggesting unlawful activity. See Frigerio-
Migiano, 254 F.3d at 33-34 (noting evidence that defendant
witnessed deliveries of "large amounts of small-denomination cash"
and issued coded receipts for these deliveries). Lastly, from
Romero's testimony that only a "trusted person" would make such a
delivery, and Cedeño's statement that he had spoken to "Ricardo,"
the jury could have reasoned that it was likely that Cedeño knew
something about the unlawful nature of the Toloza family's
activities and that the transferred money was in payment for those
activities.
B. Promotion or Concealment
The district court held correctly that the government had
to prove the mental state for either "promotional" or "concealment"
money laundering to obtain a conviction on the indictment. See
United States v. Garcia-Torres, 341 F.3d 61, 66 (1st Cir. 2003)
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("[W]here an indictment charges in the conjunctive several means of
violating a statute, a conviction may be obtained on proof of only
one of the means . . . ." (quotation marks and citation omitted)).
Therefore, the conviction must be affirmed if the government
presented evidence sufficient to prove that Cedeño possessed either
the mental state required for "promotional" money laundering or the
mental state required for "concealment" money laundering. Without
suggesting that the evidence was insufficient to prove
"promotional" money laundering, we focus on the charge of
"concealment" money laundering.
In support of his claim that the evidence was
insufficient to prove that he knew that the August 4, 2003
transaction was designed to conceal the nature, location, source,
ownership, or control of the money, Cedeño points out that he did
not instruct Ortiz to deposit the money in a bank account or to
purchase real estate -- methods associated with laundering money.
Nor did he "mention anything" to Ortiz about concealing the
transferred funds. Lastly, ICE encountered Cedeño only once during
the course of its investigation into the Tolozas, and, as discussed
above, Cedeño was not known to the Toloza family.
We disagree with this assessment of the evidence. The
jury's conclusion that Cedeño knew the transaction was
"designed . . . to conceal or disguise the nature, the location,
the source, the ownership, or the control" of the money is well
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supported by the evidence. Our conclusion is guided by the Supreme
Court's recent interpretation of the same language in Cuellar v.
United States, 128 S. Ct. 1994 (2008), where the Court dealt with
the transportation provision of the money laundering statute.
Under the "transportation" provision, it is unlawful to transport
money outside the United States "knowing that [the money] involved
in the transportation . . . represent[s] the proceeds of some form
of unlawful activity" and that "such transportation . . . is
designed . . . to conceal or disguise the nature, the location, the
source, the ownership, or the control" of the money. 18 U.S.C. §
1956(a)(2)(B)(i) (emphasis added). In the context of the money
laundering statute, the Court said, "'design' means purpose or
plan; i.e., the intended aim of the transportation." Cuellar, 128
S. Ct. at 2003. Thus, to obtain a conviction, the evidence had to
show that the purpose of the transportation was to conceal the
funds, not simply that the funds had been concealed during
transportation.5 Id. at 2005-06.
Because the Court's reasoning turns on the plain meaning
of the statutory text, and because the text of the design element
5
The Court in Cuellar found the evidence insufficient to
convict the defendant of "transportation" money laundering because,
although the evidence showed that the defendant engaged in
secretive conduct to facilitate his transportation of money to
Mexico, the evidence did not show that "secrecy was the purpose of
the transportation." 128 S. Ct. at 2005. In short, "the
Government failed to introduce any evidence that the reason drug
smugglers move money to Mexico is to conceal or disguise a listed
attribute of the funds." Id.
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of the transportation provision is identical to the text of the
design element of the transactional provision of the money
laundering statute at issue here, we apply that reasoning to the
facts of this case. Thus, to obtain a conviction for "concealment"
money laundering, the evidence must show that the purpose of the
financial transaction is to conceal the nature, location, source,
ownership, or control of the transacted proceeds.
The Court wrote in Cuellar that "where the consequences
of an action are commonly known, a trier of fact will often infer
that the person taking the action knew what the consequences would
be and acted with the purpose of bringing them about." Id. at 2005
n.8; see also 1 Wayne R. LaFave, Substantive Criminal Law § 5.2,
5.2(a) (2d ed. 2008) (describing this inference). Here, instead of
transportation, the underlying criminal conduct is a financial
transaction involving the proceeds of an unlawful activity. See 18
U.S.C. § 1956(a)(1). A rational jury could have concluded that
Cedeño, in agreeing to carry out a financial transaction with
Ortiz, engaged in conduct that was commonly known to conceal the
nature, location, source, ownership, or control of the proceeds.
For example, Cedeño employed code words to identify
callers and to establish a meeting location free of police
presence. He packaged the money in a bag, kept the bag in his
trunk, and delivered it in a mall parking lot, which had the effect
of hiding the money and rendering the transaction relatively
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inconspicious. A rational jury could have reasoned that, since it
is commonly known that engaging in such conduct would have the
effect of concealing the location, source, ownership or control of
the money being transferred, it was Cedeño's purpose in so acting
to conceal those traits of the proceeds. See also Corchado-
Peralta, 318 F.3d at 259 (holding the evidence was insufficient
where "nothing about [the defendant's conduct] points toward
concealment or disguise").
This conclusion is supported by other evidence as well,
including some of the same evidence that showed Cedeño's knowledge
of the unlawful source of the funds. First, during the transaction
with Ortiz, Cedeño repeatedly expressed concern that the money be
handed over without alerting the police. He was reluctant to take
the bag out of his car, and would not do so until Ortiz told him it
was safe. Second, Ortiz testified that he told Cedeño he needed to
receive the money before 2 p.m., because he did not want to "stay
through the night" with it.6 The jury could have concluded that
Cedeño knew that Ortiz was going to deposit the money in a bank.
In light of this, the jury could have further concluded that Cedeño
understood that the highly secretive transfer in the parking lot
was designed to conceal from the authorities the origin of the
money Ortiz was to deposit; otherwise, there would have been no
6
The parties did not discuss this testimony in their
briefs.
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reason not to wire, or publicly deliver, the money to Ortiz. In
short, there was ample evidence to support the jury's verdict that
Cedeño knew the financial transaction with Ortiz 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)(B)(i).
Affirmed.
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