United States v. Neto

United States Court of Appeals
For the First Circuit

No. 10-1651

UNITED STATES OF AMERICA,

Appellee,

v.

JOSÉ NETO, a/k/a "ZEZAO,"

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Mark L. Wolf, U.S. District Judge]

Before

Lynch, Chief Judge,
Torruella and Howard, Circuit Judges.

David Shaughnessy, for appellant.
Mark T. Quinlivan, Assistant United States Attorney, with whom
Carmen M. Ortiz, United States Attorney, was on brief for appellee.

October 25, 2011
 TORRUELLA, Circuit Judge. In 2006, Appellant José Neto

("Neto") was convicted of various immigration-related crimes,

including harboring five illegal aliens from Brazil. After his

trial, but before his sentencing, Neto was indicted in a new

criminal case for smuggling those same five aliens into the United

States. Neto was sentenced to five years' imprisonment for the

first set of crimes in 2007. Neto's first sentence expired in

2009, while he was awaiting trial on his second indictment. Neto

moved to dismiss the second indictment on the ground that it

constituted a successive prosecution in violation of his Due

Process rights under the Fifth Amendment. The district court

denied the motion to dismiss, and Neto was later found guilty and

sentenced to another five years' imprisonment. Neto now appeals

the second conviction and sentence. Because we find no

constitutional violation in Neto's second conviction or sentence,

we affirm.

I. Background

A. Smuggling Operation1

Neto's smuggling operation began sometime in 2003 and

continued until roughly March 2005. Neto and his co-conspirator,

José Neves ("Neves"), recruited men from rural Brazil and, for a

$10,000 fee, agreed to smuggle them into the United States and find

1
We draw these facts from the uncontested portions of the
presentence report (PSR). See United States v. Brewster, 127 F.3d
22, 24 (1st Cir. 1997).

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jobs for them. Between twenty-five and thirty aliens came to the

United States via this scheme. Neto employed many of the aliens at

Spectral Cleaning Service ("Spectral"), a company he purchased in

2004. Spectral had a contract to clean the floors of various

grocery stores in Massachusetts and Connecticut. Neto collected

any outstanding smuggling fees by deducting the money from the

aliens' paychecks; Neto also charged the aliens 5% interest per

month.

In September of 2004, Neto was called into the offices of

the Bureau of Immigration and Customs Enforcement ("ICE") for an

interview. During the interview, ICE officials determined that

Neto, himself a Brazilian national, was in the United States

illegally and informed Neto that he would be deported. Neto

offered an ICE official a $10,000 bribe for a green card for

himself and another $10,000 for a green card for his wife, also an

illegal alien. The official notified ICE of the bribery attempt,

and ICE set up an undercover operation in which Neto was led to

believe that he could pay cash for immigration-related favors for

himself and others. Over the course of the next six months, Neto

paid undercover ICE agents $167,100 in bribes. During this period,

ICE agents also uncovered evidence of Neto's and Neves's smuggling

and harboring of illegal aliens.

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B. Arrest and Trial in Neto I

Neto was arrested on March 16, 2005. That same day, ICE

agents raided grocery stores in western Massachusetts and detained

many Spectral employees. On April 12, 2005, a federal grand jury

returned a 36-count indictment in the first criminal case against

Neto, referred to hereafter as "Neto I." Only nine of the thirty-

six counts alleged bribery; the remaining counts were: (1) twenty-

three counts of inducing aliens to reside in the United States

illegally, in violation of 8 U.S.C. § 1324(a)(1)(A)(iv); (2) three

counts of harboring illegal aliens, in violation of 8 U.S.C. § 1324

(a)(1)(A)(iii); and (3) one count of hiring illegal aliens, in

violation of 8 U.S.C. § 1324A. On January 10, 2006, the United

States obtained a superseding indictment that added five new counts

of harboring illegal aliens and one new count of employing illegal

aliens.2 Neto pled guilty to most counts of the indictment, but

elected to go to trial on all eight harboring counts. The trial on

the harboring counts began on May 8, 2006. Although the indictment

in Neto I did not charge smuggling, the trial included testimony

about the smuggling operation in furtherance of proving the

harboring charge. On May 10, 2006, the jury found Neto guilty on

six of the eight harboring counts.

2
The superseding indictment also added a count alleging
extortionate extension of credit, but this count was later dropped.

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 On January 23, 2007, the court sentenced Neto to 60

months in prison for the harboring and bribery counts. This

sentence represented a downward departure from the recommended

range of 78 to 97 months under the United States Sentencing

Guidelines. The United States had opposed a downward departure

because of the exploitative nature of Neto's scheme: Neto forced

his employees at Spectral to work 363 days per year, and admitted

that he extorted high interest payments from those he harbored by

threatening to kill their relatives in Brazil.

C. Procedural History of Neto II

On October 25, 2006, after the conclusion of the Neto I

trial but before sentencing, the government obtained an indictment

in a second criminal case, referred to hereafter as "Neto II,"

which underlies the present appeal. Unlike the indictment in Neto

I, the indictment in Neto II included Neves as a co-defendant. The

indictment charged Neto and Neves with one count of conspiracy to

smuggle aliens for profit and to induce aliens to reside in the

United States illegally and five counts of smuggling aliens for

profit, in violation of 8 U.S.C. § 1324(a)(2)(B)(ii).3 The aliens

who were the subjects of the five smuggling counts were five

Brazilian men who had been the subjects of harboring counts for

which Neto was convicted in Neto I.

3
The indictment also charged Neves alone with five counts of
inducing aliens to reside in the United States illegally.

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 The Neto II indictment was initially sealed because Neves

was a fugitive. Thus, the government did not disclose the

indictment to the Neto I trial judge prior to Neto's sentencing.

However, on July 30, 2007, ICE agents located Neves in Florida and

arrested him. The indictment in Neto II was unsealed the same day.

Neto was arraigned on September 12, 2007. Neto's sentence in Neto

I expired on July 22, 2009, while Neto was awaiting trial in Neto

II. On October 29, 2009, Neto filed a motion to dismiss the

indictment in Neto II, arguing that prosecution in Neto II would be

fundamentally unfair and would thus violate his Due Process rights

under the Fifth Amendment.

Neto raised two primary arguments in his motion to

dismiss. First, Neto contended that because the United States

would seek to convict him for smuggling in Neto II using

essentially the same facts at issue in the harboring claims against

him in Neto I, the government should have tried the smuggling and

harboring cases together in Neto I. Second, Neto argued that a

second prosecution would be unfair because of the "draconian

sentencing outcome" that would result. Neto contended that under

the sentencing guidelines, if he had been prosecuted for the

smuggling and harboring charges in the same proceeding, he would

have received a concurrent five-year sentence for both charges.

However, because he was now being prosecuted for smuggling after

his original sentence had expired, and because the smuggling charge

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carried a five-year statutory minimum sentence, he would be

subjected to an additional five years in prison.

In response, the government argued that the validity of

the Neto II prosecution had to be analyzed under the Double

Jeopardy Clause of the Fifth Amendment, rather than under the Due

Process Clause. Therefore, the government argued that the

applicable test was the one articulated in Blockburger v. United

States, in which the Supreme Court held that a person can be

prosecuted under multiple statutes for the same conduct as long as

each statute "requires proof of a fact which the other does not."

248 U.S. 299, 304 (1932). As Neto himself had conceded in a

footnote in his motion to dismiss Neto II, the Neto II prosecution

satisfied the Blockburger test: the harboring charges in Neto I

required proof that Neto knowingly harbored aliens who were in the

country illegally, while the smuggling charges in Neto II required

proof that Neto brought illegal aliens into the United States.

Additionally, the government noted that it had offered Neto the

opportunity to avoid the statutory minimum sentence on the

substantive smuggling counts by pleading guilty to conspiracy, but

that Neto chose not to accept this offer.

At a hearing on December 17, 2009, the district court

denied Neto's motion to dismiss. The court applied the logic of

United States v. Stokes, in which this Court held that an otherwise

valid indictment should not be dismissed simply because a sentence

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might raise constitutional problems if the defendant were

convicted. 124 F.3d 39, 44 (1997). The district court found that

the Neto II indictment did not in itself violate Neto's Due Process

rights because there was no evidence that the government had an

improper motive for charging the smuggling counts separately.

Therefore, the court ordered the case to proceed to trial.

However, the court expressly preserved Neto's right to argue at

sentencing that the court should either depart downward from a

guideline sentence or not impose a statutory mandatory minimum

sentence.

At the trial in Neto II, the government offered testimony

about the smuggling operation from each of the five Brazilian men

who were the subjects of the smuggling counts. On February 9,

2010, a jury found Neto guilty of the one charged count of

conspiracy to smuggle aliens for profit and three of the five

charged counts of smuggling aliens for profit. Under 8 U.S.C.

§ 1324(a)(2)(B), the combination of the three smuggling convictions

resulted in a mandatory five-year minimum sentence.

In his sentencing memorandum, Neto argued that

fundamental fairness required a sentence below the five-year

minimum. Neto contended that the court had the authority to impose

a sentence below the statutory minimum pursuant to United States v.

Montoya, in which this Court held that sentences below the

statutory minimum might be permitted in cases where "government

-8-
agents have improperly enlarged the scope or scale of the crime."

62 F.3d 1, 3 (1st Cir. 1995) (emphasis in original). Neto

contended that Montoya applied because the government had no

legitimate motive for not prosecuting the smuggling and harboring

counts together in Neto I. Neto further argued that a sentence

below the minimum would be appropriate because sentencing in Neto

II was delayed until after the sentence in Neto I had expired, thus

eliminating the possibility of a concurrent sentence.

The government countered that only "extraordinary

misconduct" could justify a sentence below the minimum under

Montoya, and that there was no misconduct behind the successive

prosecution on the smuggling charges. See 62 F.3d at 4.

Additionally, the government again noted that it had offered Neto

the opportunity to avoid the statutory minimum sentence on the

substantive smuggling counts by pleading guilty to conspiracy, but

that Neto chose not to accept this offer.4

The trial judge conducted a sentencing hearing on May 11,

2010, and decided to hear testimony regarding the government's

motives for its prosecution strategy. Assistant United States

Attorney ("AUSA") Paul G. Levenson, who prosecuted Neto I,

testified that there were a number of reasons why the government

did not prosecute Neto for smuggling in that case. First, the Neto

4
Neves pled guilty to the conspiracy count, and to other counts
of the indictment that applied only to him, on August 13, 2009.

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I case was directed in part at the bribery attempts, in which only

Neto was implicated; in contrast, the smuggling operation was a

joint operation between Neto and Neves. Secondly, because Neves

was a fugitive until 2007, AUSA Levenson was concerned about an

"empty chair" defense if the government prosecuted Neto for

smuggling -- i.e., that Neto would try to blame the then-absent

Neves for the entire operation. AUSA Levenson also testified that

he did not inform the Neto I trial judge about the Neto II

indictment before sentencing in Neto I because it might have had an

improper prejudicial effect on Neto and because unsealing the

indictment might have harmed the government's effort to apprehend

Neves.

In addition to hearing AUSA Levenson's testimony, the

judge accepted a proffer from AUSA Brian T. Kelly regarding

information that had been provided by former AUSA Sabita Singh

("Singh"), who had also been involved in Neto I and who obtained

the indictment in Neto II. AUSA Singh had communicated two

additional reasons for bringing a second indictment against Neto.

First, the government believed the case against Neves would be

stronger if Neto were charged in the same indictment. Second, the

government was concerned that Neto might receive too light a

sentence for his actions if the smuggling charges were added to

Neto I. At the conclusion of the hearing, the judge requested

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briefing from the parties to address the implications of the

evidence presented by AUSAs Levenson and Kelly.

On May 19, 2010, the district court ruled that it did not

have the authority to sentence Neto below the mandatory five-year

minimum. The court found that the government's charging decision

in Neto II was proper for at least four reasons: (1) the

government's concern about the "empty chair" problem was valid; (2)

the government likely could not have added Neves as a defendant in

Neto I because he had no involvement in the bribery scheme; (3)

Neves was a fugitive while Neto I was pending; and (4) it was

reasonable for the government not to communicate ex parte with the

Neto I trial judge about the Neto II indictment. In addition, the

court held that the government's desire to secure what it felt was

a suitable punishment for Neto was not an improper motive. The

court also noted that while there was a long delay between the Neto

II indictment and trial -- a delay that Neto contends possibly lead

to a draconian sentencing result -- the government did not

intentionally cause the delay. The indictment was sealed for some

time because Neves was a fugitive, and the trial was delayed after

the unsealing because of various pre-trial motions, including a

"complex and challenging" motion to suppress by Neves.

The court sentenced Neto to five years' imprisonment

followed by three years of supervised release. Neto now appeals

both his conviction and his sentence.

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 II. Discussion

Neto presents three arguments on appeal. First, he

argues that the Neto II indictment itself is unconstitutional and

should be dismissed. Second, he argues that even if this Court

upholds the indictment, we should remand the case for re-sentencing

without regard to the five-year statutory minimum sentence. Third,

Neto argues that his trial counsel in Neto II was ineffective

because he failed to ensure that the trial in Neto II concluded

before the sentence from Neto I expired. We address these

arguments in turn.

A. Validity of Neto II Indictment

The parties do not dispute that Neto properly preserved

his claim that the Neto II indictment should have been dismissed.

We review properly-preserved legal and constitutional claims de

novo. United States v. S. Union Co., 630 F.3d 17, 24 (1st Cir.

2010).

Under the Double Jeopardy Clause of the Fifth Amendment,

no person can "be subject for the same offense to be twice put in

jeopardy of life or limb." U.S. Const. amend. V. The Double

Jeopardy protection "applies both to successive punishments and to

successive prosecutions for the same criminal offense." United

States v. Dixon, 509 U.S. 688, 696 (1993). The Blockburger test

applies in both the successive punishment and successive

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prosecution contexts. United States v. Colón-Osorio, 10 F.3d 41,

44-45 (1st Cir. 1993) (explaining Dixon, 509 U.S. at 703-04).

As Neto concedes, this case satisfies the Blockburger

test; therefore, Neto's prosecution and conviction in Neto II do

not violate the Double Jeopardy Clause. Neto contends, however,

that the Due Process Clause5 of the Fifth Amendment "supplements"

the Double Jeopardy Clause's protections against successive

prosecutions, and that his second prosecution violated his Due

Process rights.

In support of his argument, Neto points to early cases in

which the Supreme Court indicated that a Due Process analysis might

apply to successive prosecutions in certain cases. See, e.g.,

Ciucci v. Illinois, 356 U.S. 571, 573 (1958) (per curiam) (finding

no Due Process violation "upon the record as it stands," but noting

that two of the justices in the majority might have found

"fundamental unfairness" if certain evidence suggesting improper

prosecutorial motive were included in the record); Hoag v. New

Jersey, 356 U.S. 464, 467-69 (1958) (stating that there might be

"hypothetical situations in which the [Due Process Clause of] the

Fourteenth Amendment might prohibit consecutive prosecutions of

multiple offenses," but ultimately finding no Due Process

violations on the facts). See also Tucker v. Makowski, 883 F.2d

5
"No person shall . . . be deprived of life, liberty, or
property, without due process of law." U.S. Const. amend. V.

-13-
877, 881 (10th Cir. 1989) (finding that separate robbery and

kidnaping convictions arising out of the same incident satisfied

Blockburger test, but remanding "for a consideration of the state

court records in light of the due process standards for successive

prosecutions contained in Hoag and Ciucci").6

Here, AUSA Singh admitted that one of the government's

reasons for trying the smuggling charges separately was its concern

that Neto might receive too light a sentence in Neto I. Neto

contends that this motive was improper. Therefore, he argues, his

prosecution in Neto II represented the kind of fundamental

unfairness that can constitute a Due Process violation under Hoag

and Ciucci.

However, Neto's reliance on Hoag and Ciucci is foreclosed

by more recent Supreme Court precedent. In Sattazahn v.

Pennsylvania, the Supreme Court rejected the argument that "the Due

Process Clause provides greater double-jeopardy protection than

6
Neto also extensively cites to law review articles advocating
broader protections from successive prosecutions. See Anne Poulin,
Double Jeopardy Protection From Successive Prosecution, 92 Geo.
L.J. 1183, 1189-90, 1200-01 (2004) (arguing that Double Jeopardy
protections must be expanded in the face of the proliferation of
new statutory criminal provisions and in the face of modern rules
allowing joinder of criminal charges); Akhil Reed Amar & Jonathan
L. Marcus, Double Jeopardy After Rodney King, 95 Colum. L. Rev. 1,
34-36 (1995) (arguing that Due Process analysis should apply to
successive prosecutions to ensure that prosecutors do not have
improper motives for separating trials).

-14-
does the Double Jeopardy Clause." 537 U.S. 101, 116 (2003).7 As

the Court explained:

The Bill of Rights speaks in explicit terms to
many aspects of criminal procedure, and the
expansion of those constitutional guarantees
under the open-ended rubric of the Due Process
Clause invites undue interference with both
considered legislative judgments and the
careful balance that the Constitution strikes
between liberty and order.

Id. (quoting Medina v. California, 505 U.S. 437, 443 (1992)).

Additionally, the First Circuit has held that in light of Dixon,

which the Supreme Court decided in 1993, "the performance of a

Blockburger analysis completes the judicial task in a successive

prosecution case." United States v. Morris, 99 F.3d 476, 480 (1st

Cir. 1996) (citing Dixon, 509 U.S. at 712).

We thus reject Neto's contention that the Due Process

Clause of the Fifth Amendment supplements the protections provided

by the Double Jeopardy Clause in this case. Because we analyze the

7
Although Sattazahn dealt with a challenge to a state-law
prosecution under the Fourteenth Amendment's Due Process Clause,
"[b]ecause the language and policies of the Due Process Clauses of
the Fifth and Fourteenth Amendments are essentially the same, due
process cases decided under the Fourteenth Amendment provide
guidance in due process cases arising under the Fifth Amendment."
United States v. Bohn, 281 Fed. Appx. 430, 434 n.4 (6th Cir. 2008).
See also Malinski v. New York, 324 U.S. 401, 415 (1945)
(Frankfurter, J., concurring) ("To suppose that 'due process of
law' meant one thing in the Fifth Amendment and another in the
Fourteenth is too frivolous to require elaborate rejection."). Cf.
S. F. Arts & Athletics, Inc. v. U. S. Olympic Comm., 483 U.S. 522,
542 n.21 (1987) (stating that equal protection analysis is same
under Due Process Clause of the Fifth Amendment and Equal
Protection Clause of the Fourteenth Amendment).

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validity of the indictment solely under the Double Jeopardy Clause,

we need only consider whether the Blockburger test is satisfied.

Since the test is satisfied, we find no error in the district

court's refusal to dismiss the indictment.

B. Re-Sentencing

Because Neto was convicted of three counts of smuggling,

he was subjected to a statutory mandatory minimum sentence of five

years. See 8 U.S.C. § 1324(a)(2)(B)(iii). However, Neto argues

that he should be sentenced below the statutory minimum because the

government engaged in sentencing factor manipulation. "Sentencing

factor manipulation takes place 'where government agents have

improperly enlarged the scope or scale of [a] crime.'" United

States v. Fontes, 415 F.3d 174, 180 (1st Cir. 2005) (quoting

Montoya, 62 F.3d at 3). When such manipulation occurs, the court

has the "power to impose a sentence below the statutory mandatory

minimum as an equitable remedy." Id. However, a court may impose

a sentence below the statutory minimum only if the government

engages in "'extraordinary misconduct.'" Id. at 176 (quoting

Montoya, 62 F.3d at 4).

The defendant bears the burden of establishing sentencing

factor manipulation by a preponderance of the evidence. Id. at

180. The focus of the court's inquiry is "normally upon the

conduct of the government rather than the defendant." United

States v. Egemonye, 62 F.3d 425, 427 (1995). A determination of

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whether sentencing factor manipulation exists is a "factbound

determination subject to clear-error review." Fontes, 415 F.3d at

181 (quoting United States v. Gibbens, 25 F.3d 28, 30 (1st Cir.

1994)). Because the inquiry is fact-based, "the district court's

ultimate judgment whether the government's conduct is outrageous or

intolerable is not lightly to be disregarded." Montoya, 62 F.3d at

4.

Here, Neto argues that the government's decision to

prosecute the smuggling counts under a separate indictment amounted

to "extraordinary misconduct" warranting a sentence below the

mandatory minimum. Neto points to the fact that one of the reasons

given by AUSA Singh for bringing the second indictment was the

government's concern that Neto would receive too light a sentence

in Neto I. Neto contends that a desire to achieve a harsher

sentence is an improper prosecutorial motive. See Egemonye, 62

F.3d at 428 (stating that undercover agents who conducted a sting

operation "went too far if and to the extent that they thought

themselves entitled to make up for any shortfall in prior

punishments").

Neto also points to our decision in United States v.

Saldaña, in which the defendant argued for a downward departure

from the guideline range because the United States delayed his

federal indictment until after he had completed a state sentence,

thus depriving him of the possibility of concurrent sentences. 109

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F.3d 100, 102 (1st Cir. 1997). Although we affirmed the denial of

the downward departure in Saldaña, we stated that a case might

arise where "a careless or even an innocent delay produced

sentencing consequences so unusual and unfair that a departure

would be permissible." Id. at 104. Neto contends that this is

such a case, since the delay between the Neto II indictment and the

trial eliminated any possibility of a concurrent sentence.

We find no reason to disturb the district court's

conclusion that there was no "extraordinary misconduct" justifying

a sentence below the mandatory minimum. As the court noted, the

United States had a number of reasons for its conduct in Neto II

that were completely separate from any concern it may have had that

Neto would receive too light a sentence in Neto I. Moreover, we do

not believe that it was improper for the government to be concerned

that Neto might receive too light a sentence in Neto I. Although

we said in Egemonye that a desire to make up for a "shortfall in

prior punishments" was a "dubious motive," we also noted that "the

line is thin and blurred" between that desire and a "simple desire

to be sure that a committed criminal is caught and tried for a

substantial offense based on unshakeable evidence." Egemonye, 62

F.3d at 428. Here, AUSA Levenson testified that he viewed the

smuggling as "a very serious crime that ought to be reflected in a

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sentence."8 Because we presume that prosecutors exercise their

discretion "in good faith for reasons of sound governmental

policy," United States v. Saadé, 652 F.2d 1126, 1135 (1st Cir.

1981), we cannot say that it was improper for the government to

treat alien smuggling as a serious crime and to seek punishment

commensurate with the seriousness of that crime.

We also find that the delay in sentencing in Neto II does

not warrant a reduced sentence under Saldaña. See 109 F.3d at 104.

In Saldaña, we said that "deliberate tampering to increase a

sentence would be a concern, but the ordinary accidents of

acceleration or delay are part of the fabric of criminal

proceedings." Id. However, here there is no evidence of

deliberate tampering by the government. In fact, the delay between

the issuance of the Neto II indictment and Neto's sentencing was

largely due to Neves' conduct, including his initial flight from

justice and his filing of various pretrial motions.

For the reasons discussed above, we find no clear error

in the district court's conclusion that there was no sentencing

factor manipulation.

C. Ineffective Assistance of Counsel

Neto's final argument is that his trial counsel in Neto

II was ineffective because he did not ensure that sentencing in

8
Given that Neto's smuggling scheme involved threatening to kill
his employees' family members in Brazil, AUSA Levenson's assessment
seems perfectly reasonable.

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Neto II took place before the sentence in Neto I expired. However,

this Court "generally will not address ineffective assistance

claims on direct appeal, but rather require that they be raised

collaterally." United States v. Rivera-González, 626 F.3d 639, 644

(1st Cir. 2010). We will consider ineffective assistance of

counsel claims on direct appeal "[o]nly when such scrutiny of the

factual record is unnecessary because the attorney's

ineffectiveness is 'manifestly apparent from the record.'" Id.

(quoting United States v. Wyatt, 561 F.3d 49, 52 (1st Cir. 2009)).

Here, evaluating Neto's ineffective assistance claim will require

a thorough examination of the timing of various pre-trial events,

which is not appropriate at this stage. Thus, we reject Neto's

ineffective assistance claim without prejudice to his reasserting

it in a collateral proceeding. See, e.g., Rivera-González, 626

F.3d at 645.

III. Conclusion

For the reasons discussed above, we affirm Neto's

conviction and sentence.

Affirmed.

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