PUBLISH
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
12/15/99
No. 97-5502
THOMAS K. KAHN
________________________ CLERK
D. C. Docket No. 95-482-CR-SH
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
EDILBERTO J. MIRANDA,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(December 15, 1999)
Before COX, Circuit Judge, KRAVITCH, Senior Circuit Judge, and PROPST*,
Senior District Judge.
_________________
*Honorable Robert B. Propst, Senior U.S. District Judge for the Northern District of Alabama,
sitting by designation.
PER CURIAM:
Edilberto J. Miranda appeals his conviction and sentence for conspiracy to
launder money, in violation of 18 U.S.C. § 1956(h), and money laundering, in
violation of 18 U.S.C. § 1956(a)(1)(B)(i). We affirm in part; reverse in part; and
vacate and remand in part.
I. BACKGROUND
Before his conviction, Miranda worked as a stockbroker with Prudential Bache
Securities in Coral Gables, Florida. As such, Miranda provided numerous financial
services for Enrique Zamorano, a narcotics trafficker. Miranda provided similar
financial services for two other narcotics traffickers, Julio Morejan and Omar
Elesgaray; Elesgaray introduced Miranda to Zamorano.
Miranda was charged with one count of conspiracy to commit money
laundering, in violation of 18 U.S.C. § 1956(h) (Count 1), and twenty-two counts of
money laundering for financial transactions completed for Zamorano, in violation of
18 U.S.C. § 1956 and 1957 (Counts 2 through 23). A jury convicted Miranda on
Counts 1 and 19, acquitted Miranda on Counts 3 through 16, and was unable to reach
a verdict on the remaining counts.1
1
A mistrial was declared on Counts 2, 17, 18, and 20 through 23.
2
At sentencing, the court found that Miranda was responsible for laundering a
total of $2,908,254, resulting in a six-level increase in Miranda’s base offense level
pursuant to U.S.S.G. § 2S1.1(b)(2)(G).
II. DISCUSSION
Miranda argues that a violation of the Ex Post Facto Clause of the Constitution
requires the reversal of his conviction on Count 1 and that spillover prejudice requires
a new trial on Count 19. Miranda also contends that his sentence must be vacated
because of the improper calculation of the amount of money laundered.2 We consider
these arguments in light of the following standards: the ex post facto question is
reviewed for plain error because it was not raised before the district court, see United
States v. Hayes, 40 F.3d 362, 364 (11th Cir. 1994), and the district court’s findings of
fact in support of sentencing are reviewed for clear error while the application of those
facts to the sentencing guidelines is reviewed de novo. See United States v. Smith,
127 F.3d 1388, 1389 (11th Cir. 1997).
2
Miranda also argues that the district court erroneously gave two jury charges and
refused to give three of Miranda’s requested jury charges, violated Miranda’s Confrontation Clause
rights by curtailing the cross-examination of witnesses, and gave an Allen charge despite
extrajudicial pressures on the jury and its revelation of its numerical division. These arguments are
without merit and do not warrant further discussion. See 11th Cir. R. 36-1.
3
A. Conspiracy Conviction
Miranda asserts, and we agree, that Count 1 improperly sought to convict him
for conduct occurring prior to the enactment of the conspiracy statute. Count 1
charged that Miranda participated in a conspiracy to launder money from in or about
November, 1986, to on or about July 31, 1991, in violation of 18 U.S.C. § 1956(h).
The statutes prohibiting the substantive offense of money laundering, 18 U.S.C. §§
1956 and 1957, were enacted in October 1986. See Anti-Drug Abuse Act of 1986,
Pub. L. No. 99-570, 100 Stat. 3207 (codified at 18 U.S.C. §§ 1956 and 1957). As the
Government concedes, however, the statute prohibiting conspiracies to launder
money, § 1956(h), did not take effect until October 1992, more than a year after the
conspiracy charged had ended. See Act of October 28, 1992, Pub. L. No. 102-550, §
1530, 106 Stat. 4066 (originally codified at 18 U.S.C. § 1956(g); now codified at 18
U.S.C. § 1956(h)). This is a naked ex post facto violation, as “[t]he Ex Post Facto
Clause flatly prohibits retroactive application of penal legislation.” Landgraf v. USI
Film Prods., 511 U.S. 244, 266, 114 S. Ct. 1483, 1497 (1994) (italics omitted). The
Government concedes that Miranda’s conviction and sentence on Count 1 constitutes
plain error; we agree and thus reverse Miranda’s conviction on Count 1.
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B. Spillover
Miranda challenges his conviction on Count 19 as well because the conspiracy
count–with its broad scope–allowed the Government to introduce otherwise
inadmissible evidence of Miranda’s dealings with the other two drug dealers, Morejan
and Elesgaray. The Government counters that reversal is unnecessary for two reasons.
We find both persuasive.
First, the jury verdict establishes that the jury was able to properly
compartmentalize and analyze the evidence. The jury convicted Miranda on the
conspiracy count and on only one of twenty-two substantive counts, demonstrating
an ability to separate out the relevant evidence for each count. See United States v.
Cassano, 132 F.3d 646, 651-52 (11th Cir.) (concluding that the jury made
individualized determinations as to each defendant in a conspiracy case by its verdict
acquitting one defendant on all counts, another on all but two counts, and every other
defendant on all but one count), cert. denied, — U.S. — , 119 S. Ct. 103 (1998); cf.
United States v. Pedrick, 181 F.3d 1264, 1273 (11th Cir. 1999) (finding that the jury
did not adequately sift the evidence and make an individualized determination as to
one defendant because the jury deliberated for only about three hours and returned
guilty verdicts on all 90 counts against one defendant and all 125 against the other
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defendant). Miranda’s jury carefully sifted the evidence, and the verdict demonstrated
its ability to accurately compartmentalize the evidence to the appropriate charges.
The Government’s second persuasive argument is that the same evidence would
have been admitted at trial even without the conspiracy charge since the other counts
all alleged substantive violations of the money-laundering statute. Federal Rule of
Evidence 404(b) permits the admission of prior-bad-acts evidence to show motive,
preparation, knowledge, and intent, as well as an ongoing scheme or plan. See United
States v. Lehder-Rivas, 955 F.2d 1510, 1515-16 (11th Cir. 1992) (noting that evidence
of criminal activity other than the charged offense is admissible for purposes of Rule
404(b) if it pertains to the chain of events explaining the context, motive and set-up
of the crime and is linked in time and circumstances with the charged crime); United
States v. Cross, 928 F.2d 1030, 1047 (11th Cir. 1991) (affirming the admission of
evidence of events which occurred prior to the date that the charged conspiracy
commenced pursuant to FED. R. EVID. 404(b) as relevant evidence of intent). In short,
the evidence that Miranda had laundered money for drug dealers other than Zamorano
was relevant to show that he knew what he was doing for Zamorano.
Miranda counters, however, that Rule 404(b) admission generally requires a
limiting instruction, and that the district court’s failure to give an instruction limiting
the use of this evidence to its proper scope under Rule 404(b) permitted prejudicial
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consideration of this evidence for improper purposes. See United States v. Gonzalez,
975 F.2d 1514, 1517-18 (11th Cir. 1992). We cannot agree. The failure to give a
limiting instruction is error only when such an instruction is requested.3 See Sherman
v. Burke Contracting, Inc., 891 F.2d 1527, 1534 (11th Cir. 1990) (quoting FED. R.
EVID. 105 and explaining that under this rule, the court has a duty to give a limiting
instruction only upon request), superseded in non-relevant part by statute as stated
in Andrews v. Lakeshore Rehabilitation Hosp., 140 F.3d 1405 (11th Cir. 1998).4
Miranda cites one case that he believes undermines our conclusion that he
cannot demonstrate prejudicial spillover. We disagree. That case is United States v.
Adkinson, 135 F.3d 1363 (11th Cir. 1998). We find Adkinson distinguishable
procedurally because the defendants moved to dismiss the defective conspiracy count
before trial, and the government refused to concede dismissal until it put on four
3
Miranda also argues that he did not have the opportunity to request a limiting
instruction because the evidence was admitted as direct evidence of the conspiracy. This argument
fails, however, as Miranda could have requested an instruction limiting the use of the other-bad-acts
evidence as applied to the substantive counts. Cf. Gonzalez, 975 F.2d at 1517-18 (reversing where
evidence was admitted in support of a conspiracy count and the district court failed to give an
instruction limiting the use of the other-bad-acts evidence as applied to the substantive counts,
despite the defendant’s request).
4
Since the court had no duty to give a limiting instruction in the absence of a request,
we may reverse only if we conclude that the court's failure to give the instruction constituted plain
error. See Sherman, 891 F.2d at 1534. While Miranda has not argued that the district court’s failure
to give a limiting instruction constituted plain error, we conclude, in light of the facts of this case,
that no error which seriously affected the fairness, integrity, or public reputation of judicial
proceedings occurred. See Jones v. United States, — U.S. —, —, 119 S. Ct. 2090, 2102 (1999)
(defining plain error).
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months of evidence and concluded the presentation of its case. See id. at 1370, 1372-
73. In the present case, the defect in the conspiracy count was not brought to the
court’s attention prior to this appeal. Furthermore, Miranda has not shown that any
evidence admitted against him pursuant to the conspiracy count would not have been
admissible pursuant to FED. R. EVID. 404(b). Cf. id. at 1372 (noting that pursuant to
the conspiracy charge, the district court allowed the introduction of “an enormous
amount of evidence under rules applicable only to conspiracies.”)
We reject the argument that prejudicial spillover occurred. Evidence of
Miranda’s financial activities on behalf of other narcotics traffickers would have been
admissible at trial pursuant to FED. R. EVID. 404(b), and Miranda’s jury verdict
reflected careful sifting of the evidence in support of each count. Miranda’s
conviction on Count 19, therefore, is due to be affirmed.
C. Sentencing
Because the conspiracy conviction has been reversed, Miranda’s sentence will
be vacated. Miranda’s further attacks his sentence on the ground that some $1.2
million of the $2.9 million figure the district court used to calculate Miranda’s
sentence involved transactions that predated the enactment of 18 U.S.C. §§ 1956 and
1957, the statutes which prohibit money laundering. In other words, according to
Miranda, $1.2 million of the amount included by the district court at sentencing as part
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of the funds laundered, pursuant to U.S.S.G. § 2S1.1(b)(2), was not money laundered
in violation of the money-laundering statute. We agree.
Section 2S1.1 provides for a "specific offense characteristic" increase in the
base offense level, depending on the value of the funds laundered in violation of 18
U.S.C. § 1956. We have said that the term “funds,” as used in U.S.S.G. § 2S1.1,
“‘obviously refer[s] to funds that are used by the defendant in an unlawful monetary
transaction.’" United States v. Barrios, 993 F.2d 1522, 1524 (11th Cir. 1993) (quoting
United States v. Johnson, 971 F.2d 562, 575 (10th Cir. 1992)).
The Government counters with two arguments. First, the Government argues
that Miranda was sentenced only for the crimes for which he was convicted, and that
the Sentencing Guidelines mandate the inclusion of all amounts of money laundered
as relevant conduct in determining the sentence for the crimes of conviction. This
argument, however, begs the question of how money could have been laundered prior
to the enactment of the statutes which prohibit money laundering.
The Government’s second argument is that Miranda’s financial transactions
were not innocent because other statutes, such as those prohibiting the interstate
transport of drug proceeds and the aiding and abetting of the distribution of controlled
substances, made those transactions illegal. Even assuming, however, that Miranda
could have been charged (or even convicted) pursuant to other statutes, we find this
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argument unpersuasive. Miranda was not charged with criminal conduct in violation
of any other statute, and there is no finding here that Miranda’s conduct violated any
other statute. Furthermore, under § 2S1.1, a defendant’s culpability is determined by
the amount of money laundered in violation of the money-laundering statute, not by
the amount of dirty money associated with the defendant.
Because the applicable sentencing guideline requires an increase of the base
offense level based on the value of the funds laundered, not based on any other
relevant conduct, we conclude that the sentencing court erred by including the value
of funds that involved financial transactions that occurred prior to the enactment of
the statute that made money laundering unlawful. Thus the district court must
recalculate the amount of funds laundered.
III. CONCLUSION
We reverse the conviction on Count 1 and affirm the conviction on Count 19.
We vacate Miranda’s sentence and remand for resentencing.
AFFIRMED IN PART; REVERSED IN PART; VACATED AND
REMANDED IN PART.
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