UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-4441
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
HUMBERTO ROJAS-DIAZ, a/k/a Negro, a/k/a Bruce, a/k/a Lopez,
a/k/a/ Jose,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington. Terrence W. Boyle,
District Judge. (7:12-cr-00088-BO-2)
Argued: December 10, 2015 Decided: April 5, 2016
Before GREGORY and SHEDD, Circuit Judges, and DAVIS, Senior
Circuit Judge.
Affirmed in part, reversed in part, and vacated and remanded
with instructions by unpublished opinion. Senior Judge Davis
wrote the opinion, in which Judge Gregory joined. Judge Shedd
wrote a separate opinion concurring in the judgment.
ARGUED: Michael W. Patrick, LAW OFFICE OF MICHAEL W. PATRICK,
Chapel Hill, North Carolina, for Appellant. Kristine L. Fritz,
OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina,
for Appellee. ON BRIEF: Thomas G. Walker, United States
Attorney, Jennifer P. May-Parker, Assistant United States
Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
2
DAVIS, Senior Circuit Judge:
A jury convicted Appellant Humberto Rojas-Diaz of
conspiring to traffic illegal drugs, conspiring to commit money
laundering, substantive money laundering, and attempted drug
distribution. He now appeals, challenging the district court’s
denial of his motion for judgment of acquittal, contending that
his convictions for money laundering conspiracy and substantive
money laundering are not supported by sufficient evidence. He
also argues that the district court committed multiple errors in
its jury instructions. Having fully considered his assertions
of error, we agree with Rojas-Diaz that the evidence was
insufficient to prove his knowing participation in the charged
money laundering conspiracy. In all other respects, we discern
no error. Accordingly, we affirm in part, reverse in part, and
remand for the entry of a judgment of acquittal as to the charge
of money laundering conspiracy.
I.
A.
This case arises from a Drug Enforcement Administration
(“DEA”) investigation of Rojas-Diaz’s drug trafficking activity
in late 2010. During the investigation, Special Agent Joseph E.
Carucci identified James Edward Cox as a courier for Rojas-Diaz,
whom Cox knew as “Bruce.” On September 8, 2010, Special Agent
Carucci surveilled Cox as he travelled to McAllen, Texas, to
3
deliver a boat that had been modified to hold large amounts of
marijuana. Once in Texas, Cox delivered the boat to Manuel
Tabares-Castillo (“Castillo”). Castillo then gave Cox a cooler
lined with ten kilograms of cocaine. DEA agents pulled over Cox
in Georgia on September 14, 2010, as he returned from Texas.
They searched Cox’s vehicle, recovered the cooler, and arrested
Cox after discovering the cocaine.
A few weeks after his arrest, Cox agreed to cooperate with
the DEA as a confidential informant, working closely with
Special Agent Carucci, who would be acting in an undercover
capacity. The duo made two trips to Texas as part of the Rojas-
Diaz investigation. For the first trip, Rojas-Diaz had asked
Cox to retrieve the boat and leave a Fifth Avenue trailer, a
type of recreational vehicle, with Castillo so it could be
modified to carry marijuana. Cox, at Special Agent Carucci’s
direction, agreed to make the delivery. Rojas-Diaz then gave
Cox $50,000 in cash to pay Castillo for the drugs in the boat.
As planned, Cox and Special Agent Carucci left for Texas
with the Fifth Avenue trailer on October 30, 2010, tailed by a
surveillance team of DEA agents. They stopped briefly along the
way so Cox could meet an unidentified Castillo associate who
gave Cox a cooler that had been modified to conceal the $50,000
in its lining. Two days later, Cox and Special Agent Carucci
delivered the Fifth Avenue trailer to Castillo at Castillo’s
4
house in Texas. In a hotel parking lot on November 2, 2010, Cox
gave Castillo the cooler lined with $50,000. Cox and Special
Agent Carucci returned to North Carolina without the boat, but
they had observed several men loading it with marijuana at
another location in Texas.
The second trip occurred about a week later. On November
10, 2010, Rojas-Diaz gave Cox $19,010 to buy a Fleetwood trailer
so that it too could be modified and loaded with marijuana. The
intention was to use the Fifth Avenue and Fleetwood trailers in
rotation to deliver drugs to North Carolina. Cox purchased the
Fleetwood trailer as directed, then he and Special Agent Carucci
delivered it to Castillo in Texas. While there, Cox and Special
Agent Carucci retrieved the boat and began towing it back to
North Carolina. On November 14, 2010, they stopped in Houston,
Texas, where Special Agent Carucci confirmed the boat contained
marijuana by drilling a hole in its stern.
Because the DEA had planned to use the boat to make a
controlled delivery the following day, after which the recipient
of the boat would be arrested, Cox and Special Agent Carucci
carried out a plan to maintain their cover: Cox got approval
from Rojas-Diaz and Castillo to remove sixty pounds of marijuana
from the boat with the intention to report back later that he
and Special Agent Carucci had sold it. With the plan underway,
5
Cox and Special Agent Carucci hoped to avert any suspicion that
might arise from the anticipated arrests.
Cox and Special Agent Carucci left the boat and remaining
marijuana with an associate of Rojas-Diaz in Lumberton, North
Carolina. Cox then called Rojas-Diaz and Castillo to confirm
that the boat had been delivered. Law enforcement officers
stayed behind and surveilled the boat, observing men unloading
marijuana from it. As the officers moved in to seize the boat
and marijuana, the men fled.
On November 19, 2010, Cox, as planned, told Rojas-Diaz that
he and Special Agent Carucci had sold their share of the
marijuana. To make it appear that the sale had occurred, Cox
and Agent Carucci lined a cooler with $15,000 of government
currency and, on November 20, 2010, delivered the cooler to an
associate of Castillo in South Carolina. Later, in January
2011, DEA agents found 1300 kilograms of marijuana hidden in the
Fifth Avenue trailer in Texas. The Fleetwood trailer was never
recovered.
B.
On July 2, 2012, and March 21, 2013, respectively, a grand
jury in the Eastern District of North Carolina returned an
indictment and a superseding indictment charging Rojas-Diaz and
two codefendants with drug-trafficking-related offenses. On
April 17, 2013, the grand jury returned a twelve-count second
6
superseding indictment against Rojas-Diaz and five codefendants,
Kelly Ray Chavis, James Howell Oxendine, David Prado, William
Gerardo Alvarado Parra, and Shane Lorenzo Stewart.
The second superseding indictment charged Rojas-Diaz,
specifically, with conspiracy to distribute and to possess with
the intent to distribute five kilograms or more of cocaine and
1000 kilograms or more of marijuana in violation of 21 U.S.C.
§ 846; conspiracy to commit money laundering in violation of 18
U.S.C. § 1956(h); substantive money laundering in violation of
18 U.S.C. § 1956(a)(1)(A)(i); and attempted possession with the
intent to distribute 100 kilograms or more of marijuana, and
aiding and abetting, in violation of 21 U.S.C. § 846 and 18
U.S.C. § 2. * Rojas-Diaz pled not guilty and proceeded to a four-
day jury trial.
At trial, Cox and Special Agent Carucci testified as
government witnesses about their involvement in the
investigation. Castillo also testified as a government witness.
Castillo admitted that he had supervised the filling of the boat
with marijuana, and he acknowledged that he had worked closely
with Cox and that Cox had helped him transport drugs to North
* The second superseding indictment also charged Rojas-Diaz
with attempted possession with the intent to distribute five
kilograms or more of cocaine, and aiding and abetting, in
violation of 21 U.S.C. § 846 and 18 U.S.C. § 2. That charge was
dismissed prior to trial.
7
Carolina. But Castillo was adamant that he had never met or
spoken to Rojas-Diaz until he was asked to testify in this case.
All but one of the codefendants, David Prado, testified at
trial, describing their drug trafficking activities with Rojas-
Diaz, whom they knew by different names. Kelly Chavis, who knew
Rojas-Diaz as “Bruce,” testified that he had been buying
marijuana, and occasionally cocaine, from Rojas-Diaz since about
2010. He and Rojas-Diaz were nearby when Cox and Special Agent
Carucci delivered the boat in North Carolina. According to
Chavis, Rojas-Diaz had positioned himself to watch the delivery,
so Rojas-Diaz saw the law enforcement officers seize the boat
and the marijuana it contained.
Shane Stewart mostly referred to Rojas-Diaz as “Buddy” and
had used Rojas-Diaz as a marijuana supplier. Stewart testified
that, at first, Rojas-Diaz had given him thirteen pounds of
marijuana, which Stewart sold by that evening. Then, over a
two-week period, Rojas-Diaz started fronting Stewart up to fifty
pounds of marijuana at a time. The most marijuana Rojas-Diaz
ever gave Stewart at one time was ninety pounds.
James Oxendine knew Rojas-Diaz as “Jose.” Stewart had
introduced Oxendine to Rojas-Diaz, and by 2010, Oxendine was
using Rojas-Diaz as a marijuana supplier. Rojas-Diaz fronted
Oxendine one to two pounds of marijuana five or six times a
year, totaling about twenty pounds of marijuana over the course
8
of their association. Finally, William Parra, who knew Rojas-
Diaz as “Negro,” met Rojas-Diaz in 2011. Parra testified that
he had sold Rojas-Diaz fifty pounds of marijuana for $40,000 on
two separate occasions.
After the conclusion of the presentation of evidence,
Rojas-Diaz moved for judgment of acquittal on all counts under
Federal Rule of Criminal Procedure 29, which the district court
denied. Thereafter, the district court, relying “substantially”
on the government’s proposed instructions, J.A. 526, instructed
the jury on the conspiracy charges without mentioning whether a
defendant could conspire with government agents. Following an
objection by Rojas-Diaz, the district court added an instruction
that “[a] person can’t conspire with the government.” J.A. 590.
During the money laundering instructions, the district court
described the crime as making “dirty money” clean again and as
“hiding” money obtained through criminal activity. J.A. 575,
577-78. But the district court later instructed the jury that
the government had to prove “the defendant intended to promote
the carrying on of [an] unlawful activity.” J.A. 587. In
addition, the district court instructed that, “[i]n a
conspiracy[,] people can come and go as long as they know
the objects of the conspiracy and willfully agree to become
a member of it.” J.A. 585. The district court defined
“willfully” as “an act [that] is committed voluntarily and
9
purposely with the specific intent to do something the law
forbids.” J.A. 582.
Finally, as to the attempted drug distribution
instructions, the district court initially referenced “five
kilograms of cocaine,” J.A. 585, even though Rojas-Diaz had only
been charged with an offense involving 100 kilograms or more of
marijuana. Rojas-Diaz objected to the instruction, and the
district court correctly named the drug, but not the quantity,
for the jury.
On January 19, 2014, the jury found Rojas-Diaz guilty of
all charges in the second superseding indictment. After the
jury announced the verdict, Rojas-Diaz timely renewed his
previous motion for judgment of acquittal on all counts under
Federal Rule of Criminal Procedure 29, which the district court
denied.
On May 30, 2014, the district court sentenced Rojas-Diaz to
360 months’ imprisonment for the drug trafficking conspiracy and
attempted drug trafficking convictions, followed by a lifetime
of supervised release. For the money laundering conspiracy and
substantive money laundering convictions, the district court
imposed a concurrent sentence of 240 months’ imprisonment
followed by three years’ supervised release. This timely appeal
followed.
10
II.
A.
We review the denial of a motion for judgment of acquittal
de novo. United States v. Osborne, 514 F.3d 377, 385 (4th Cir.
2008). In doing so, we view the evidence in the light most
favorable to the government to determine whether the guilty
verdict is supported by substantial evidence. Id. (citing
United States v. Burgos, 94 F.3d 849, 862 (4th Cir. 1996) (en
banc)). Substantial evidence is “evidence that a reasonable
finder of fact could accept as adequate and sufficient to
support a conclusion of a defendant’s guilt beyond a reasonable
doubt.” Id. (quoting Burgos, 94 F.3d at 862).
B.
Rojas-Diaz argues that his conviction for money laundering
conspiracy should be vacated because the only other identified
participants in the ostensible money laundering scheme were
government agents. His contention has merit. The second
superseding indictment specifically charged Rojas-Diaz with
conspiring to launder $19,010 between November 2 and 10, 2010,
in promotion of illegal drug trafficking in violation of 18
U.S.C. § 1956(h), as follows:
Beginning no later than on or about November 2,
2010, and continuing until at least on or about
November 10, 2010, in the Eastern District of North
Carolina and elsewhere, defendant HUMBERTO ROJAS-DIAZ
. . . did knowingly conspire with other persons known
11
and unknown to the Grand Jury to commit an offense in
violation of Title 18, United States Code, Section
1956(a)(1)(A)(i), specifically, to conduct a financial
transaction affecting interstate and foreign commerce
which in fact involved the proceeds of specified
unlawful activity, that is, the transfer of
approximately $19,010 in United States currency to
another individual known to the Grand Jury, with the
intent to promote the carrying on of specified
unlawful activity, that is, illegal drug trafficking,
and knowing that the property involved in the
financial transaction represented the proceeds of some
form of unlawful activity.
J.A. 41-42.
To prove the charged conspiracy, the government was
required to establish: “(1) an agreement [existing from on or
about November 2, 2010, until on or about November 10, 2010,] to
commit money laundering existed between one or more persons [to
“transfer . . . approximately $19,010 in United States
currency”]; (2) the defendant knew that the money laundering
proceeds had been derived from an illegal activity; and (3) the
defendant knowingly and voluntarily became part of the
conspiracy.” United States v. Singh, 518 F.3d 236, 248 (4th
Cir. 2008) (brackets added) (quoting J.A. 41). A person,
however, cannot conspire with a government agent. United States
v. Hackley, 662 F.3d 671, 679 (4th Cir. 2011) (citing United
States v. Lewis, 53 F.3d 29, 33 (4th Cir. 1995)). The record
here demonstrates that the $19,010 transaction involved solely
Rojas-Diaz and government agents. Thus, Rojas-Diaz’s conviction
12
for money laundering conspiracy is not supported by sufficient
evidence and must be vacated.
As described above, the evidence elicited at trial
established that Rojas-Diaz gave Cox $19,010 on November 10,
2010, to purchase the Fleetwood trailer so that it could be
modified to transport drugs. Rojas-Diaz also intended the money
to cover various expenses incurred while towing the boat, by
then filled with marijuana, back to North Carolina. Cox and
Special Agent Carucci used the money as instructed. But Cox, a
confidential informant, and Special Agent Carucci, working
undercover for the DEA, were government agents at the time and
could not, as a matter of law, have conspired with Rojas-Diaz to
launder the money (or to commit any other criminal offense).
There is no evidence that any of the men gave any of the money
to another person, government agent or otherwise, who knowingly
participated in the scheme.
The government insists that a conspiracy to launder the
$19,010 existed between Rojas-Diaz and Castillo, who undoubtedly
was involved in the overall narcotics conspiracy and was not a
government agent (although he later pled guilty and testified at
trial pursuant to a plea agreement). Specifically, the
government argues that Castillo had a longstanding arrangement
to supply Rojas-Diaz with marijuana and cocaine through a
delivery system that involved concealing drugs in modified boats
13
and trailers. In the government’s view, the $19,010 was
necessary to advance that arrangement. While “[t]he existence
of a tacit or mutual understanding is sufficient to establish a
conspiratorial agreement,” United States v. Kellam, 568 F.3d
125, 139 (4th Cir. 2009) (quoting United States v. Ellis, 121
F.3d 908, 922 (4th Cir. 1997)), there must be at least some
evidence that the defendant participated in the charged
conspiracy, United States v. Collazo, 732 F.2d 1200, 1205 (4th
Cir. 1984) (citing United States v. Laughman, 618 F.2d 1067,
1075 (4th Cir. 1980)), here, the money laundering conspiracy,
not merely the related but legally separate narcotics
conspiracy. There simply is no such evidence in this record.
No evidence directly connects Castillo to the $19,010 or to
any explicit or implicit agreement as to the use of those funds.
There is no evidence that Rojas-Diaz and Castillo discussed the
$19,010 before or after Rojas-Diaz gave the money to Cox and
Special Agent Carucci. Nor is there evidence that Rojas-Diaz
and Castillo discussed purchasing or utilizing the Fleetwood
trailer before it arrived at Castillo’s house. Nothing
demonstrates that Rojas-Diaz acted on anything more than his own
accord.
Nor does the record reflect that there exists substantial
circumstantial evidence of any collaborative efforts between
Rojas-Diaz and Castillo in respect to the money laundering
14
conspiracy. To the contrary, the record underscores that the
two men had little, if any, contact with each other. At trial,
for example, Castillo was unsure at first whether he had ever
spoken to Rojas-Diaz before. Castillo testified about two phone
calls that he may have had with Rojas-Diaz, both of which were
unhelpful in tying the two men to one another. For the first
call, Castillo explained that he talked to “a Mexican guy or
Hispanic guy” named “Negro.” J.A. 486. Although Parra knew
Rojas-Diaz as “Negro,” no testimony established that the
“Mexican guy or Hispanic guy” on the phone was Rojas-Diaz.
Castillo stated that he had never seen Rojas-Diaz before, so he
could not “be a hundred percent sure who it was that called.”
Id. For the second call, Castillo testified that he had “talked
to somebody from Houston” once. Id. He added, though, that
Rojas-Diaz “was never mentioned to [him] so [he did not] know
who that could be.” Id. Moreover, Rojas-Diaz is from North
Carolina, not Houston.
Castillo did not testify specifically as to when either
phone call occurred or the topics discussed. Moreover, Castillo
later flatly denied ever knowingly communicating with Rojas-
Diaz, testifying that he “never knew [Rojas-Diaz]” and that he
had “never seen him before.” J.A. 487. Castillo also may not
have even been in charge of the drug trafficking enterprise. He
asserted that he worked directly with his boss, who was never
15
identified, and Cox, but he never mentioned working for or with
Rojas-Diaz. See, e.g., J.A. 485 (“[Cox] told me he had come up
to North Carolina to sell [cocaine], . . . and he brought me
back $96,000 to give my boss.”). For his part, Cox’s testimony
corroborates that he interacted with Rojas-Diaz and Castillo
separately.
The government points to portions of Cox’s testimony that
suggest Rojas-Diaz and Castillo communicated with each other at
various times. See, e.g., J.A. 295 (“I told [Rojas-Diaz] that
had he talked to Papa lately and he said – one time he said
yeah.”). Based on those portions of the trial testimony, the
government argues that Rojas-Diaz and Castillo remained in
constant contact about their drug trafficking affairs. The
cited conversations, however, concern discrete issues, such as
ancillary deals involving drugs, Cox’s arrest, and money or
drugs that Rojas-Diaz supposedly owed Castillo. The
conversations do not demonstrate that Rojas-Diaz and Castillo
engaged in high-level discussions about the drug trafficking
enterprise, and certainly not about the disposition of the
proceeds earned from their activities as narcotics traffickers.
Put simply, there is no evidence of a tacit agreement
between Rojas-Diaz and Castillo to purchase the Fleetwood
trailer; nor is there evidence that Castillo participated in (or
even knew about) its purchase. The record before us undoubtedly
16
shows that Rojas-Diaz and Castillo dealt extensively with drugs
pursuant to their agreement to do so. It does not, however,
show that they conspired to launder the $19,010 specifically
charged in the indictment. Cf. United States v. Green, 599 F.3d
360, 372 (4th Cir. 2010) (“[I]t is no exaggeration to observe
that, given the manner in which the two overlapping conspiracy
counts have been framed in the case before us, virtually all of
the evidence presented in support of the drug conspiracy count
prosecuted pursuant to 21 U.S.C. § 846 was potentially probative
of [the defendant’s] alleged involvement in the money laundering
conspiracy prosecuted pursuant to 18 U.S.C. § 1956(h).”).
Indeed, Castillo does not enter the scene as described in the
second superseding indictment until after the trailer arrived at
his house, long after any conspiracy involving the purchase of
the trailer would have ended and after the money had already
been laundered. There is no evidence that he directed the money
laundering, caused it to be directed, or knowingly joined in the
effort to do so.
For these reasons, Rojas-Diaz’s conviction for money
laundering conspiracy is not supported by substantial evidence;
the district court erred when it denied the motion for judgment
of acquittal as to that count of the second superseding
indictment.
17
III.
Rojas-Diaz also challenges his substantive money laundering
conviction, arguing that, in turning over the $19,010 to Cox,
then a government agent, the crime was never completed. He
also asserts multiple errors in the jury instructions. Rojas-
Diaz specifically argues that the district court (1) did not
properly instruct that a defendant cannot conspire with a
government agent; (2) failed to instruct the jury on the
willfulness element of a conspiracy; and (3) improperly
instructed the jury on concealment money laundering when
promotional laundering was charged in the second superseding
indictment. We have fully considered these other assignments
of error and find they lack merit.
IV.
For the foregoing reasons, we reverse in part the denial of
the motion for judgment of acquittal, vacate and remand for
entry of an amended judgment of acquittal on the money
laundering conspiracy charge, and otherwise affirm the
judgment.
AFFIRMED IN PART, REVERSED IN PART,
AND VACATED AND REMANDED WITH INSTRUCTIONS
18
SHEDD, Circuit Judge, concurring:
I concur in judgment of the court. I write separately about
the reversal of Rojas-Diaz’s conviction on Count 4, an outcome
that likely will not alter his term of imprisonment, to
articulate my view of the appropriate analysis of the money
laundering conspiracy. In my view, the sufficiency of the
evidence on Count 4 turns on whether, viewing the evidence in
the light most favorable to the Government, a reasonable
inference supports finding that Castillo and Rojas-Diaz
conspired to use drug proceeds to purchase vehicles—including
the Fleetwood trailer listed in Count 4—to further their illegal
drug business. If the Government had proven that Castillo and
Rojas-Diaz were in such a conspiracy, it would not matter
whether Castillo had knowledge of the specific plan to purchase
the Fleetwood trailer. That is, the Government “was not required
to prove beyond a reasonable doubt [Castillo’s] participation
[with Rojas-Diaz] in any actual financial transaction knowingly
using drug trafficking proceeds.” United States v. Green, 599
F.3d 360, 373-74 (4th Cir. 2010).
Here, the Government was unable to articulate how such an
inference arises from the evidence presented. Accordingly, I
concur fully in the judgment of the court.
19