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[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 17-10509
________________________
D.C. Docket No. 1:16-cr-20272-JAL-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RAMON COBENA DUENAS,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(June 11, 2018)
Before ED CARNES, Chief Judge, MARCUS, and EBEL, ∗ Circuit Judges.
MARCUS, Circuit Judge:
∗
Honorable David M. Ebel, United States Circuit Judge for the Tenth Circuit, sitting by
designation.
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After trial by jury, Ramon Cobena Duenas was convicted of conspiring to
exchange counterfeit currency, and dealing in counterfeit currency, in violation of
18 U.S.C. §§ 371 and 473. On appeal, Cobena Duenas challenges his convictions,
claiming that the government failed to prove he knew the transaction involved
counterfeit United States currency. After review, we affirm.
I.
The essential facts adduced at trial are these. On April 4, 2016, Customs and
Border Protection agents at Miami International Airport found counterfeit currency
in a bag carried by Jose Uceda, a traveler who had arrived from Peru. Uceda was
carrying $632,300 in counterfeit $100 bills, with a fair market value of at least
$125,000. The counterfeit currency was sewn or glued inside of zippered bags
found in Uceda’s luggage. Secret Service agents determined that Uceda was
unaware of the bags’ contents, and Uceda agreed to help the Secret Service catch
the individuals who planned to pick up the counterfeit money. Uceda agreed to
pose as the courier responsible for bringing the bills into the United States in
exchange for a fee, and he agreed to make contact with “Patty,” from whom he got
the suitcase in Peru. Uceda told Patty he had arrived in Miami and asked her who
would pick up the suitcase.
After speaking to Patty, Uceda received a call from a man identified as
“Cesar,” who used a New York number. Cesar turned out to be Milton Cabeza
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Juarez, Cobena Duenas’s co-conspirator. Uceda told Cabeza that he discovered
counterfeit currency in the suitcase and that he brought the money to Miami, but
that he wanted to be compensated for the risks attendant to transporting the
currency to the United States. Cabeza agreed to pay Uceda $5,000 for his labors,
and asked whether Uceda would transport more counterfeit currency in the future.
Uceda and Cabeza agreed that the payment of Uceda’s fee and the delivery of the
counterfeit currency would take place on April 11, 2016 in Miami.
Cellular phones found in the co-conspirators’ possession established that,
between April 9 and April 11, 2016, Cobena Duenas and Cabeza called each other
61 times, including 39 calls on April 11 alone. None of the calls lasted more than
two minutes, and the substance of the conversations is unknown. Additionally, on
April 9, Cobena Duenas sent a text message to a woman named Mia De Los
Santos, which read, “My love, wait for me until Monday because I’m going to do a
special work now and I don’t have money now.” And on April 11, the date of the
transaction, De Los Santos texted Cobena Duenas, “Good luck, God protect you
and guide you.” The government’s investigation further revealed that Cabeza
bought airline tickets from New York to Miami for himself and Cobena Duenas,
and that he rented a car for their travel while in Miami.
The April 11 meeting was arranged to take place at a Miami restaurant, the
Latin Bohemia Grill, where undercover police officer Detective Edwin Pagan
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would accompany Uceda to meet Cabeza. Cabeza and Cobena Duenas traveled
together on the same flight from JFK airport in New York to Miami on April 11,
2016. Later that day, Cobena Duenas entered the designated restaurant and stood
near the bar, in a small hallway area. Cabeza walked in shortly thereafter and
approached Uceda and Detective Pagan as they sat at a table. Cabeza told Uceda
and Detective Pagan he was prepared to complete the transaction, but he wanted
the exchange to take place in the parking lot, not inside the restaurant. Pagan and
Uceda agreed. After the three men negotiated where the transaction would take
place, Detective Pagan asked Cabeza if he brought the money for the transaction.
Cabeza took Uceda to meet Cobena Duenas, who lifted up his shirt and showed
Uceda a large bundle of cash. Cobena Duenas and Cabeza then walked out of the
restaurant, and Detective Pagan received authorization to conduct the transaction in
the restaurant parking lot.
Detective Pagan left the restaurant, returned with the counterfeit currency in
a truck, and reentered the building. Notably, Cobena Duenas returned alone to the
restaurant to meet with Uceda and Detective Pagan. Surveillance footage also
showed Cobena Duenas walking to the restaurant alone. During the meeting, the
three men walked out of the restaurant, went into the parking lot, and toward
Detective Pagan’s van. Detective Pagan asked Cobena Duenas if he had the
money; Cobena Duenas said “yes,” removed the cash from his waistband, and told
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Detective Pagan “to count it, it’s all there.” Cobena Duenas confirmed to Uceda
and Detective Pagan that he had carried $5,000 in cash. While Detective Pagan
was counting the money, Cobena Duenas urged him to “do it faster.”
After Cobena Duenas handed the money to Detective Pagan but before he
was shown the counterfeit bills, Detective Pagan gave a verbal and visual signal
and law enforcement authorities arrested Cobena Duenas. Cabeza was seated in a
rental car across the street from the restaurant, in “the general area where [Cobena
Duenas] came from,” when the authorities arrested him as well.
Cabeza and Cobena Duenas were charged in a two-count indictment by a
federal grand jury sitting in the Southern District of Florida shortly thereafter.
Cabeza pled guilty to the conspiracy charge, and Cobena Duenas proceeded to
trial. Following trial, and after deliberating for approximately one hour, the jury
sent this question to the court: “For Count Number 1, is [the knowledge element]
specific to the counterfeit currency or just the person knowing he is doing
something unlawful in general?” After conferring with both parties, the district
court responded this way:
It is specific to the counterfeit currency. You will recall that in the general
conspiracy charge there were certain elements that had to be proved. There
are four elements. One of the elements is that “the defendant knew the
unlawful purpose of the plan and willfully joined in it.” The purpose of the
plan was counterfeit currency.
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So please consider this instruction in conjunction with all of the other
instructions. Do not dwell on one particular instruction. Consider all of the
instructions as a whole.
The jury found Cobena Duenas guilty as charged on both counts. This
timely appeal followed.
II.
The only issue raised by appellant is whether the evidence was sufficient to
establish beyond a reasonable doubt that Cobena Duenas knew the unlawful object
of this conspiracy and intended to deal in counterfeit money.
We review the sufficiency of the evidence de novo, taking the evidence in
the light most favorable to the government and drawing all reasonable inferences
in favor of the jury’s verdict. United States v. Feliciano, 761 F.3d 1202, 1206
(11th Cir. 2014). The question then is whether, when viewing the evidence in that
light, a reasonable juror could find the essential element of knowledge beyond a
reasonable doubt. United States v. Spoerke, 568 F.3d 1236, 1244 (11th Cir. 2009).
“It is not necessary that the evidence exclude every reasonable hypothesis of
innocence or be wholly inconsistent with every conclusion except that of guilt,
provided a reasonable trier of fact could find that the evidence establishes guilt
beyond a reasonable doubt.” United States v. Martinez, 763 F.2d 1297, 1302 (11th
Cir. 1985) (quotation omitted).
To convict Cobena Duenas of criminal conspiracy under 18 U.S.C. § 371,
the government had to prove that: (1) an agreement existed between two or more
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persons to commit a crime; (2) Cobena Duenas knowingly and voluntarily joined
or participated in the unlawful agreement; and (3) a conspirator performed an overt
act in furtherance of the unlawful agreement. United States v. Dominguez, 661
F.3d 1051, 1064 (11th Cir. 2011). The unlawful agreement may be established by
direct or circumstantial proof, including reasonable inferences drawn from the
statements or conduct of the participants. United States v. Cross, 928 F.2d 1030,
1042 (11th Cir. 1991). Moreover, the government must prove that the conspirators
had specific knowledge of the conspiracy’s unlawful object. See United States v.
Sarro, 742 F.2d 1286, 1297 (11th Cir. 1984). A person violates 18 U.S.C. § 473
when he “buys, sells, exchanges, transfers, receives, or delivers any false, forged,
counterfeited, or altered obligation or other security of the United States, with the
intent that the same be passed, published, or used as true and genuine . . . .” 18
U.S.C. § 473. While the statute has no express mens rea requirement, by now “it is
well established that the required mental state for this crime is knowledge -- a
defendant must know that the instrument at issue was counterfeit.” United States
v. Brown, 752 F.3d 1344, 1346 (11th Cir. 2014) (emphasis added).
We have recognized that guilty knowledge can rarely be established directly,
and have therefore held that a jury may infer knowledge and criminal intent from
circumstantial evidence alone. United States v. Clay, 832 F.3d 1259, 1309 (11th
Cir. 2016). Thus, the government can establish knowledge “through proof of
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surrounding circumstances such as acts committed by the defendant which
furthered the purpose of the conspiracy.” United States v. Gonzalez, 834 F.3d
1206, 1215 (11th Cir. 2016) (quotation omitted). A conviction may be supported
by reasonable inferences, not by mere speculation. United States v. Knowles, 66
F.3d 1146, 1155 (11th Cir. 1995). Neither association with a co-conspirator nor
presence at the scene of a crime, standing alone, will support a finding of specific
knowledge. United States v. Louis, 861 F.3d 1330, 1333 (11th Cir. 2017).
We have repeatedly held, however, that because “a prudent smuggler is not
likely to suffer the presence of unaffiliated bystanders,” when the orchestrator of a
conspiracy vests substantial trust in an associate to contribute to the scheme, a jury
may infer the associate’s knowing participation. United States v. Cruz-Valdez,
773 F.2d 1541, 1547 (11th Cir. 1985) (en banc). The rationale behind the “prudent
smuggler doctrine,” as it has become known, is straightforward. A prudent
smuggler seeks to facilitate the exchange of contraband in order to enrich himself
while evading apprehension by law enforcement officers. He is, therefore, not
inclined to navigate the contraband markets’ perils and uncertainties alone. See id.
at 1546–47 (discussing the prudent smuggler’s reliance on “strong arm men” and
other “precaution[s]” to mitigate “the ever-present risks of robbery or ‘rip-offs’”).
Rather, he is disposed to trust a confidant to provide loyal and competent
assistance in securing the illicit transaction’s smooth performance. Id. Loyalty is
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necessary to ensure that the confidant will not abscond with the valuable
contraband; and competency is necessary to ensure that the confidant will
effectively consummate the plan. In entrusting the confidant, then, the smuggler
will likely apprise him of the transaction’s essential details, including the nature of
the contraband involved, so that the confidant may overcome the “normal but
deadly hazards implicit in [contraband] trafficking.” Id. at 1546–47; see also
United States v. Quilca-Carpio, 118 F.3d 719, 721–22 (11th Cir. 1997) (“A
reasonable jury could infer from the quantity of drugs seized that a ‘prudent
smuggler’ is not likely to entrust such valuable cargo to an innocent person without
that person’s knowledge.”) (citation omitted).
In our binding precedent, we have applied the prudent smuggler doctrine in
cases involving drug crimes. And Cobena Duenas relies on our precedents
involving drug crimes to support his arguments in this case. As a result, we see no
reason not to apply the doctrine, where appropriate, to the distribution of
counterfeit United States currency.
Viewed in the light most favorable to the government and the jury’s verdict,
the evidence sufficiently established that Cobena Duenas knew the unlawful object
of the conspiracy and intended to deal in counterfeit currency. For starters, Cobena
Duenas had ample opportunity to discover that he was dealing in counterfeit
money. Leading up to the April 11 exchange, he shared substantial contacts with
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Cabeza, who undisputedly knew all of the transaction’s details and set up the
planned exchange. As we have noted, between April 9, 2016 and April 11, 2016,
the date of the transaction, the pair called each other 61 times. On April 11 itself,
Cabeza and Cobena Duenas spoke 39 times, beginning at 3:51 a.m. Although each
phone conversation was brief, there were enough total calls to facilitate Cobena
Duenas and Cabeza’s exhaustive collaboration. Moreover, and perhaps more
significantly, the two men flew together from New York to Miami on Cabeza’s
dime, and shared a car while they were in Miami. Based on the frequency with
which they conferred and their time spent traveling together, a jury could
reasonably have inferred that Cobena Duenas learned that the exchange involved
counterfeit currency.
Moreover, Cobena Duenas plainly demonstrated awareness of the
transaction’s unlawful nature. Two days before the transaction, he texted De Los
Santos, apparently his girlfriend, that he was “going to do a special work,” which
he suggested would be lucrative for him. De Los Santos responded, “Good luck.
God protect you and guide you,” thereby implying his knowing assumption of a
palpable risk. Cobena Duenas also assisted in preparing for the exchange. He
participated in the initial interaction at the restaurant and ensured the continued
participation of Uceda and Detective Pagan by displaying the $5,000 courier fee
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(secreted on his person) to Uceda. And, after paying Uceda’s courier fee, he urged
Detective Pagan to count the $5,000 “faster.”
Most importantly, Cobena Duenas was instrumental to the transaction’s
success. Cobena Duenas bore sole responsibility for actually swapping the $5,000
for $632,300 in counterfeit $100 bills, and then returning the counterfeit bills to
Cabeza in a parked vehicle across the street. Notably, he met Detective Pagan and
Uceda alone to execute the deal. He alone held Uceda’s $5,000 courier fee, and
exercised exclusive dominion over a key part of the transaction. In short, Cobena
Duenas’s crucial and exclusive contributions to the transaction supported the
inference that he knew he was dealing in counterfeit currency.
Finally, under the prudent smuggler doctrine, the jury in this case could
reasonably infer that Cabeza would not entrust Cobena Duenas to close a deal for
$632,300 in counterfeit currency without telling Cobena Duenas not only that he
was buying counterfeit currency but also how much he was to receive in exchange
for $5,000 in non-counterfeit currency. Without Cobena Duenas knowing that he
was buying that much counterfeit currency, the sellers could have ripped off
Cabeza and deprived him of the full benefit of his bargain. See Cruz-Valdez, 773
F.2d at 1546 (“A jury may find knowledgeable, voluntary participation from
presence when the presence is such that it would be unreasonable for anyone other
than a knowledgeable participant to be present.”); see also United States v.
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Figueroa, 720 F.2d 1239, 1246 (11th Cir. 1983) (“A conspiracy conviction will be
upheld . . . when the circumstances surrounding a person’s presence at the scene of
conspiratorial activity are so obvious that knowledge of its character can fairly be
attributed to him.”) (citation omitted). In other words, a reasonable jury could
infer that Cabeza would never have entrusted Cobena Duenas to close the deal
without telling him exactly what he was to receive and bring back. Because
Cabeza trusted that Cobena Duenas knew enough to ensure that the exchange was
properly made, it is reasonable to conclude that Cobena Duenas knew exactly what
he was buying and how much of it. See United States v. Gallo, 927 F.2d 815, 821
(5th Cir. 1991) (“Drug traffickers are unlikely to entrust a large portion of the
proceeds from their illicit trade to an outsider, especially when the outsider is
aware of the vulnerable nature of the merchandise that he is transporting.”).
To support his argument that the evidence was insufficient to establish
knowledge, Cobena Duenas cites several of our decisions. But all of them are
readily distinguishable. First, he relies on United States v. Martinez, 83 F.3d 371
(11th Cir. 1996). There, the defendant Gallo, along with undercover narcotics
detective Fernandez and confidential informant Escobedo, orchestrated a
conspiracy to steal cocaine. Id. at 373. Gallo arrived at the house where the
cocaine was stored with defendant Gomez. Id. Both men were armed with
handguns. Id. They used a crowbar to break into the house, seized the cocaine,
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and began to leave when they were immediately arrested. Id. Following
conviction, Gomez claimed that the evidence against him was insufficient, urging
that he did not know he had attempted to steal cocaine, and that Gallo told him
they were going to steal money. Id. at 374. The Court agreed with Gomez and
reversed his conviction. Id.
Martinez is a different case. The evidence against Gomez consisted of:
Gallo’s statement to the undercover detective that he had “men and guns ready” to
perform the burglary; Gomez’s arrival at the crime scene with Gallo; and Gomez’s
assistance in breaking into the house. Id. Gomez’s knowledge of the burglary’s
object was unclear. He rode with Gallo to the crime scene, armed with a handgun,
and aided in the break-in. Id. at 373. There was nothing in the fact pattern that
would have allowed a reasonable juror to infer the requisite knowledge beyond a
reasonable doubt. In sharp contrast, here, Cobena Duenas was delegated the sole
responsibility to exchange $5,000 in cash for $632,300 in counterfeit bills, and to
return the contraband to Cabeza’s car. Unlike the role played by Gomez in
Martinez, Cobena Duenas’s substantial, independent, and indeed critical
participation in effecting the exchange supported the inference that he knew the
object of the conspiracy.
Moreover, in Martinez, there was no evidence that Gallo and Gomez
discussed the burglary at length. There was scarce reason to believe that Gallo had
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communicated the burglary’s details to Gomez, nor did he have to in order to
accomplish the strong-arm object of the conspiracy. Here, however, Cabeza and
Cobena Duenas called each other 61 times in the three days leading up to the
exchange (including 39 times on the day of the transaction), flew together from
New York to Miami, and shared a rental car within Miami. Cobena Duenas had
ample opportunity to discover the conspiracy’s object.
Cobena Duenas also points to United States v. Hernandez, 896 F.2d 513
(11th Cir. 1990). There, defendant Giral argued that his convictions for conspiracy
to possess cocaine with intent to distribute and possession of cocaine with intent to
distribute were based on insufficient evidence. Id. at 516. The evidence against
Giral indicated that he rode in a car that delivered cocaine; he then stood near the
trunk while another man handed the package of cocaine to its intended recipient.
Id. at 517, 519. There was no evidence that Giral knew anything about the
package until a co-defendant opened the trunk to deliver it to an undercover
officer. Thus, a panel of this Court reversed Giral’s convictions, holding that they
were based on insufficient evidence. Id. at 520.
Hernandez cannot help Cobena Duenas. Giral’s role in the drug conspiracy
was of a very different character. The evidence established only Giral’s
association or presence at the transaction. Id. at 519. Again, in this case, Cobena
Duenas’s contribution to this conspiracy demonstrably exceeded association or
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presence. He alone held the down payment on his person, he alone delivered it to
Uceda and Detective Pagan, and he alone sought to take possession of the
counterfeit money and convey it to Cabeza.
Cobena Duenas’s reliance on United States v. Charles, 313 F.3d 1278 (11th
Cir. 2002), is likewise misplaced. Charles involved a conspiracy to steal cocaine
from an abandoned house. Id. at 1280. One of the defendants, Elliassaint, claimed
that the evidence failed to support his convictions for conspiracy to possess with
intent to distribute cocaine and conspiracy to carry a firearm in furtherance of that
crime. Id. at 1284. The evidence established only that Elliassaint was present on
one occasion with the other conspirators in a hotel room as they planned the
burglary, and that he drove the conspirators to the crime scene. Id. There, too,
Elliassaint contributed only marginally to the conspiracy. He was not vested with
substantial trust by its orchestrators, nor did he interact with them at length.
Moreover, United States v. Sarro, 742 F.2d 1286 (11th Cir. 1984), is
unavailing. Again, in that case, the defendant Tiedeberg’s role was of a wholly
different order than Cobena Duenas’s. He only guarded stolen paintings, but
lacked any apparent knowledge of a scheme to exchange the paintings for cash. Id.
at 1298. Indeed, the Court emphasized Tiedeberg’s insubstantial communications
with the other conspirators in concluding that his conviction was unsupported by
sufficient evidence. Id. at 1298–99.
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Finally, our recent decision in United States v. Louis, 861 F.3d 1330 (11th
Cir. 2017), does not help Cobena Duenas. In Louis, a shipowner directed that two
boxes containing cocaine be placed into a car at a shipyard; the defendant was
sitting in the driver’s seat as the boxes were loaded. Id. at 1332. The defendant
then began driving slowly out of the shipyard as the shipowner walked alongside
the car. Id. The police stopped the car and the defendant got out and ran, but the
police arrested him. Id. We held that there was not enough evidence to prove that
the defendant knew the boxes contained drugs based on his presence at the scene
and his flight from the police. Id. at 1334. But in this case the 61 telephone
conversations, the text message about “special work,” and Cobena Duenas’s
responsibility for closing the deal and ensuring that the benefit of the bargain was
received show that, unlike the Louis defendant, Cobena Duenas was responsible
for more than merely transporting the currency.
The long and the short of it is that there was enough evidence in this case to
allow a reasonable juror to find the critical element of knowledge beyond a
reasonable doubt. Cobena Duenas was no mere bystander or peripheral player in
this crime. The district court did not err in denying the motion for judgment of
acquittal and, therefore, we affirm.
AFFIRMED.
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