[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
____________________________ FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 99-12058 NOVEMBER 7, 2001
____________________________ THOMAS K. KAHN
D. C. Docket No. 93-00470-CR-WMH CLERK
UNITED STATES OF AMERICA,
Plaintiff-Appellee-Cross-Appellant,
versus
MICHAEL ABBELL,
WILLIAM MORAN,
Defendants-Appellants-Cross-Appellees.
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Appeals from the United States District Court
for the Southern District of Florida
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(November 7, 2001)
Before EDMONDSON, FAY and GARWOOD*, Circuit Judges.
_______________
* Honorable Will L. Garwood, U.S. Circuit Judge for the Fifth Circuit, sitting by
designation.
PER CURIAM:
Defendants, Michael Abbell (“Abbell”) and William Moran (“Moran”)
(together “Defendants”), appeal their conviction for conspiracy to launder money
and appeal the district court’s denial of their motions for new trial. The
government cross-appeals the district court’s judgment of acquittal on the
government’s charges of RICO conspiracy and the sentencing court’s application
of the sentencing guidelines.
We affirm the district court’s denial of judgment for both Defendants on the
money laundering conspiracy, reverse the district court’s judgment of acquittal for
both Defendants on the RICO conspiracy charges, affirm the denial of Defendants’
requests for a new trial, and remand the case to the district court for resentencing in
the light of our opinion.1
STATEMENT OF THE CASE
1
Defendants’ motion to dismiss the government’s appeal for lack of jurisdiction is denied.
The government’s notice of appeal was timely. See 18 U.S.C. § 3731; Fed. R. App. P.
4(b)(1)(B)(i), (b)(2); United States v. Rothseiden, 680 F.2d 96, 97 (11th Cir. 1982); United
States v. McInnis, 601 F.2d 1319, 1322-23 (5th Cir. 1979). Furthermore, the requirement that
the government obtain approval under 18 U.S.C. § 3742(b) to prosecute this appeal is not
jurisdictional. United States v. Hall, 943 F.2d 39, 41 (11th Cir. 1991). The government stated in
its response to the motion to dismiss that approval was obtained. See id.
2
In 1996, the government filed a “Fourth Superseding Indictment” charging
Defendants, and over 70 other codefendants, with these offenses: 1) participating
in a RICO conspiracy (Count I); 2) engaging in substantive RICO violations
(Count II); 3) participating in a conspiracy to import cocaine (Count III); 4)
participating in a conspiracy to import and distribute cocaine (Count IV); and 5)
participating in a conspiracy to launder money (Count IX). The government first
prosecuted Defendants at trial beginning in 1997. Defendants were acquitted of
the substantive RICO count (Count II) after a five-month trial, but the jury could
not reach a verdict on the other counts. The district court declared a mistrial on
those counts.
The government tried defendants a second time beginning in 1998. The
district judge did not grant Defendants’ motions for judgment of acquittal: motions
made on all counts at the close of the government’s case and after all of the
evidence. During jury deliberations, the court received word that one of the jurors
was behaving improperly and refusing to obey the law or to obey the court’s jury
instructions. The court then gave the jury instructions about the illegality of
nullification and about the jury’s duty to apply the law as instructed by the court.
After receiving more complaints from jury members, the court conducted an
inquiry into the conduct of one of the jurors. The court talked with the juror in
3
question and with each member of the jury in an attempt to ascertain whether the
juror’s conduct warranted her dismissal.
Over Defendants’ objections, the district court dismissed the juror. The
court had concluded that the juror was not applying the law to the case. Then, the
jury found Defendants guilty of the RICO conspiracy (Count I) and money
laundering conspiracy (Count IX) counts. The jury could not reach a verdict on the
counts charging conspiracies to import and distribute cocaine (Counts III and IV).
Defendants filed motions for a new trial based on the juror’s dismissal and
on their discovery that another juror planned to write a book about the trial. The
court denied the motions for a new trial. The court granted a post-trial judgment of
acquittal on the RICO conspiracy charges (Count I) and on the conspiracy to
import and distribute cocaine charges (Counts III and IV), but allowed the jury’s
guilty verdict on the money laundering conspiracy to stand.
Abbell and Moran were sentenced to 87 months and 60 months in prison,
respectively. Abbell is free pending this appeal. Moran, who fled the jurisdiction
before the verdict, was captured and is incarcerated.
Defendants appeal the district court’s denial of judgment of acquittal on the
money laundering conspiracy charge (Count IX) and the district court’s denial of
their motion for new trial based on the jury problems. The government cross-
4
appeals the district court’s entry of judgment of acquittal on the RICO conspiracy
charge (Count I) and the district court’s calculation of Defendants’ specific offense
levels pursuant to the United States Sentencing Guidelines § 2S1.1.
I. BACKGROUND2
In the 1980s and 1990s Miguel Rodriguez-Orejuela was one of the leaders of
a widespread cocaine producing and smuggling empire that imported large
quantities of cocaine into the United States. The organization widely know as the
Cali Cartel (the “Cartel”) smuggled cocaine into the United States by creatively
concealing the cocaine and by using front businesses that were engaged in drug
smuggling.
The Code of Silence and Efforts to Avoid Extradition
Rodriguez-Orejuela and other leaders of the Cartel maintained a strict code
of silence among their employees. Employees were told not to cooperate with
2
Because this appeal concerns charges where the jury found for the government, we take the
facts in the light most favorable to the government’s theory of the case. See United States v.
Taylor, 972 F.2d 1247, 1250 (11th Cir. 1992).
5
authorities if employees were ever arrested. To maintain this code of silence the
Cartel utilized a carrot-and-stick approach. On the one hand, the Cartel paid the
attorney’s fees of members and expenses for those members’ families and, on the
other hand, threatened those employees who were arrested and their families with
injury or death if they cooperated with authorities.
Rodriguez-Orejuela also conducted an active campaign of collecting sworn
statements from his employees to shield himself from prosecution or extradition to
the United States. Members or employees of the Cartel apprehended by police
would often soon thereafter sign affidavits disavowing knowledge of, or
involvement with, Rodriguez-Orejuela, who was often named as a codefendant in
prosecutions of persons apprehended by United States’ authorities.
Later this program expanded to include taking deposition testimony from
certain people who had been arrested in the United States. During deposition, they
would give statements similar in nature to the statements in the affidavits. Persons
were picked to give such deposition testimony based on the degree to which
Rodriguez-Orejuela was implicated in their case by other evidence and by the
degree to which he thought that the person would provide answers favorable to
Rodriguez-Orejuela.
6
The Plan in Action
The evidence presented in this case centers around Defendants’ acts relating
to the arrest (due to four successful investigations by United States authorities) and
trials of drug traffickers. In November 1991, a group of people led by Gustavo
Naranjo (“Naranjo”) was arrested after a shipment of cocaine was imported into
Miami inside concrete pillars and then transported to Texas. In April 1992, a
group of people led by Harold Ackerman (“Ackerman”) was arrested in connection
with cocaine disguised in frozen vegetables. In April 1993, a group of people led
by Carlos Torres (“Torres”) was arrested for conspiracy to import 500 kilograms of
cocaine. In September 1993, a group of people led by Raul Marti (“Marti”) was
arrested in connection with a drug smuggling operation run out of a coffee-
importing business.
The Naranjo Case
In August 1991, cocaine was discovered hidden inside concrete posts that
were being delivered to the port of Miami. Customs agents set up surveillance of
the shipment. In November 1991, a portion of the shipment was removed from a
7
warehouse and transported to Texas where the cocaine was removed from the
concrete posts. In Texas, Naranjo, Tommy Johnson, William Brooks, Anibal
Restrepo and J.C. Lanier were arrested.
Customs Agent Edward Kacerosky, who was deeply involved in the
pertinent case, met with Naranjo shortly after his arrest. Naranjo began to
cooperate with authorities and made some recorded phone calls to Rodriguez-
Orejuela and another Cartel employee in Miami. The arrests in this case were
made public on 25 November 1991. Searches were then conducted yielding a
seizure of 12,250 kilograms of cocaine.
After the arrests were made public, Joel Rosenthal, a Miami lawyer, flew to
Texas and met with Naranjo. Naranjo stopped cooperating after the visit from
Rosenthal. Rosenthal arranged for Texas lawyer Frank Jackson to represent
Naranjo. Rosenthal paid Jackson with money from Rodriguez-Orejuela. Naranjo
was convicted in March 1992.
The Ackerman Case
Agent Kacerosky continued his investigations based on information he
obtained from the Naranjo case. This activity led to the arrest of Harold
8
Ackerman, Carlos Giron, Pedro Pablo Gomes and Jacome Milanes for importing
cocaine hidden in frozen vegetables. Searches resulted in a seizure of 6,650
kilograms of cocaine and of detailed ledgers showing millions of dollars in
proceeds from cocaine sales and showing millions of dollars having been shipped
back to Rodriguez-Orejuela in Columbia.
Rodriguez-Orejuela told Ackerman all about the code of silence back when
Ackerman had been brought into the business. Rodriguez-Orejuela also had told
Ackerman that, if Ackerman was ever arrested, his lawyer would be paid for and
his family would be taken care of. Whenever Ackerman brought a new person into
the smuggling activities, Rodriguez-Orejuela would tell them about the code of
silence. Before Ackerman took over certain smuggling activities, he was
introduced to Defendant Moran who was told that Ackerman would now be in
charge.
Ackerman hired lawyer Robert Moore and instructed Moore to hire other
lawyers for his codefendants. Francisco Laguna (“Laguna”) (who worked for
Defendant Abbell)3 visited Ackerman in prison a few days after Ackerman’s arrest,
and Ackerman asked Laguna to relay a message to Rodriguez-Orejuela that
3
Central to the government’s case, Laguna’s testimony throughout the trial was that Abbell
and he were in constant communication about the work Laguna was doing for Rodriguez-
Orejuela and that Laguna’s activities were directed and approved by Abbell.
9
Ackerman wanted his attorney’s fees paid. Ackerman was threatened by Gonzalo
Paz, one of Rodriguez-Orejuela’s Columbian attorneys, that he should not
cooperate with police. After a trip to Columbia, Moore also relayed a message
from Rodriguez-Orejuela to Ackerman that he should not cooperate with
authorities or Ackerman’s family would be killed.
Ackerman retained an independent lawyer, Ed Shohat, in October 1992.
While representing Ackerman, Shohat received a call from Defendant Abbell.
Abbell told Shohat that Rodriguez-Orejuela had agreed to pay his legal fees and
wanted Ackerman to sign an affidavit that both Shohat and Abbell knew to be
false. Shohat refused to have Ackerman sign the affidavit.
Defendant Moran represented Carlos Giron who was arrested and went to
trial with Ackerman. When Shohat pursued a coercion defense for Ackerman,
Moran asked if Shohat had received permission from Rodriguez-Orejuela to do so.
All of the defendants in the Ackerman case were convicted.
The Torres Case
10
Working for Rodriguez, Carlos Torres was arrested in April 1993 for
charges involving a 500-kilogram cocaine conspiracy. He pleaded guilty nine
months later.
Torres hired Miami lawyer Stephen Golembe, who had earlier successfully
represented Torres’s wife. Torres’s wife called Rodriguez-Orejuela to obtain
money for her husband’s legal fees. Rodriguez-Orejuela told her to talk to Moran,
which she then did. Moran told Mrs. Torres that her husband had to pick Moran as
his lawyer because Rodriguez-Orejuela had said so. Moran met with Torres after
Torres’s initial appearance before the district court. Moran told Torres that Moran
was going to Columbia. Torres told Moran to tell Rodriguez-Orejuela and Jorge
Lopez to change all the beeper numbers because the police had them. Moran wrote
this information in his notes.
Moran requested and received money from Rodriguez-Orejuela for
attorney’s fees for Torres and his codefendants. Moran was able to obtain a
$250,000 corporate surety bond for Torres and faxed a letter to Rodriguez-Orejuela
requesting that property used to collateralize the bond come from “clean money.”
It was never necessary to put up the money for the bond: the government
successfully appealed the bond ruling and kept Torres in jail.
11
Torres fired Moran after hearing that Moran had written the prosecutor to
inquire about a plea bargain. Torres went back to Golembe, but he fired Golembe
when Golembe filed a statement with a probation officer that implicated
Rodriguez-Orejuela. Torres then hired Laguna and Ferguson. Laguna submitted a
new statement on behalf of Torres that did not implicate Rodriguez-Orejuela.
The Marti Case
Agent Kacerosky was able to identify another smuggling operation from the
records obtained in the Ackerman case. In September 1993, authorities searched
coffee containers that had arrived in Miami in August and had been under
surveillance since their arrival. Authorities seized over 5,600 kilograms of
cocaine. Raul Marti, Oscar Rabasa, Rodney Paterson and Richard Carlyle were
arrested for involvement with the importation of the cocaine.
Marti hired Miami lawyer Dan Forman to represent him. Laguna informed
Forman that Laguna represented Rodriguez-Orejuela and wanted Marti to sign one
of the exculpatory affidavits. When Forman informed Laguna that he would not
tell his client to sign a false affidavit, Laguna told Forman that Rodriguez-Orejuela
would not pay Marti’s legal fees unless Marti signed the affidavit.
12
Later, Laguna visited Marti in jail without Forman’s permission. Laguna
then called Forman to inform him that funds were being transferred to him.
Forman notified the government of the $100,000 he received and turned it over to
the government.
Cash Payments to Prisoners and Family Members
During his representation of Giron, Moran’s secretary gave Giron’s wife
$5,000 in cash that Giron’s wife believed to have come from Rodriguez-Orejuela.
In May 1993, Moran had a courier deliver $10,000 to Torres’s wife. After
receiving the money, Mrs. Torres was arrested and deported to Columbia. After
Giron was convicted and he retained Ristau & Abbell, the firm began paying about
$100 a month into his prison commissary account. Ristau & Abbell also made
payments into Torres’s commissary account. The advances to Giron and Torres
were made for about a year. Ristau & Abbell also made payments into the
commissary accounts of people who were not clients of the firm. All of the
payments were made using money orders as required by the Bureau of Prisons’
regulations.
13
Laguna delivered cash payments to Giron’s wife, to Torres’s wife and to
Torres’s son. Laguna also arranged for a corporate surety bond in the amount of
$500,000 for Raul Marti, which required a $75,000 payment to a bail bondsman.
Laguna and Abbell asked Ferguson to receive the cash payment and to forward the
money to Marti’s wife. Ferguson received the money and forwarded it to Marti’s
wife.
II.
The Money Laundering Conviction
The structure of the money laundering statute, 18 U.S.C. § 1956, makes it
illegal to engage knowingly in acts involving illegally obtained money either to
promote a criminal activity or to conceal the source of the funds. The jury, by
special verdict in this case, found that Defendants had engaged in acts to conceal
the source of the funds, not to promote illegal activity.4
4
The jury therefore convicted Defendants under the concealment part of the money laundering
statute, 18 U.S.C. § 1956 (a)(1)(B)(i), which says:
“Whoever, knowing that the property involved in a financial transaction represents the
proceeds of some form of unlawful activity, conducts or attempts to conduct such a financial
transaction which in fact involves the proceeds of specified unlawful activity – knowing that the
14
Defendants argue on appeal that the government failed to prove that
Defendants ever joined or intended to join an illegal agreement to violate the
money-laundering concealment statute. Also Defendants argue – more specifically
– that the government could not show that they agreed to enter such an agreement
because the government never showed that the transactions that actually took place
were illegal. Defendants say the government failed to produce sufficient evidence
that 1) the funds involved in the transactions were from narcotics proceeds; 2) that
Defendants knew the funds were from narcotics proceeds; and 3) that the purpose
of the transactions was to disguise the source or ownership of the funds involved or
to create the appearance of legitimate wealth for Rodriguez-Orejuela.
Defendants first argue that the government failed to present evidence that the
actual funds used in the pertinent transactions came from illegal activity. Pointing
to precedents, they say that, when the government fails to trace directly the funds
used in the transactions, it must at least show that no source of legitimate income
could have generated the funds used or that the funds used come from a source of
funds that are commingled with illegally obtained funds. But, Defendants
overstate the holdings in the cases upon which they rely.
transaction is designed in whole or in part to conceal or disguise the nature, the location, the
source, the ownership, or the control of the proceeds of specified unlawful activity” violates the
statute.
15
In United States v. Eastman, 149 F.3d 802, 804 (8th Cir. 1998), the Eighth
Circuit said that it was sufficient evidence to support a jury verdict for the funds to
come from illegal sources if the government showed defendant had no legitimate
source of income to create these funds. In United States v. Westbrook, 119 F.3d
1176, 1191 (5th Cir. 1997), the Fifth Circuit said it was sufficient evidence to
support a jury determination if the government showed that “defendant’s cash
outflow in a financial transaction exceed[ed] his legitimate income.” These cases
decided issues about whether the proof in those cases was sufficient to support a
jury verdict, not about the degree of proof that is required as a minimum.
In this case, the government presented evidence that the Cartel received
proceeds from drug sales in the hundreds of millions of dollars. Evidence was
presented that much of this money was kept in Miami and used to finance Cartel
operations and that large sums of it were transported to Columbia for Rodriguez-
Orejuela’s use. When a jury hears evidence that a drug operation is bringing in
hundreds of millions of dollars, keeping large sums in Miami, and sending large
sums to Rodriguez-Orejuela in Columbia, the jury can reasonably infer that the
money Rodriguez-Orejuela used to pay lawyers defending himself and his
employees from prosecution for drug trafficking is coming from specified illegal
activity.
16
Defendants argue that evidence showed that Rodriguez-Orejuela, in
Columbia, owned a wide variety of “legitimate” businesses, including a chain of
pharmacies, grocery stores, construction companies, and a soccer team from which
Rodriguez-Orejuela could have paid Defendants. We will accept that Rodriguez-
Orejuela’s businesses produced some amount of cash flow from which the funds
used in transactions underlying this case might have been derived. We, however,
will not accept that the evidence demanded a finding that Rodriguez-Orejuela’s
businesses were “legitimate.”
Defendants forget that our job is to review the sufficiency of the evidence:
not to choose between competing interpretations. “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 that a reasonable
trier of fact could find that the evidence established guilt beyond a reasonable
doubt. A jury is free to choose among the constructions of the evidence.” United
States v. McDowell, 250 F.3d 1354, 1365 (11th Cir. 2001) (quoting United States
v. Calderon, 127 F.3d 1314, 1324 (11th Cir. 1997).
Defendants point us to no evidence on the amount of money that these
companies made, and they offered no formal documents proving the existence of
these companies or the amount of income Rodriguez-Orejuela himself derived
17
from these companies. But, more important, the government presented evidence
that all of Rodriguez-Orejuela’s “legitimate” businesses were funded with narco-
profits. In addition to supporting a finding that the ultimate source of the money
received by Defendants was illegal activity, we think the government’s evidence
on this point supports a finding that Rodriguez-Orejuela’s illegal and legal moneys
-- to the extent legal moneys existed -- were commingled, thus tainting all funds
originating from Rodriguez-Orejuela.5 See United States v. Cancelliere, 69 F.3d
1116, 1120 (11th Cir. 1995) (money laundering statute allows for conviction
“where the funds involved in the transaction are derived from commingled account
of which only part comes from ‘specified unlawful activities’”).
The government must prove the funds came from illegal activity. We
conclude that, when the government presents the kind of evidence it presented in
this case, the evidence is sufficient to support a beyond-reasonable-doubt jury
finding that the pertinent funds came from an unlawful source. We acknowledge
that Defendants’ evidence about “legitimate” businesses might be able to rebut the
5
The amount of illegal money that needs to be combined with another, larger amount of legal
money need only be slight to render all the money commingled and, therefore, illegal. And,
once the illegal and legal moneys are commingled, no passage of time will remove the taint.
United States v. Ward, 197 F.3d 1076, 1083 (11th Cir. 1999) (“The district court's theory that the
passage of time and the large infusion of legal proceeds remove the taint from the illegal
proceeds defeats the purpose of the money laundering statute and promotes money laundering
schemes. Because money is fungible, the government must prove only that the tainted proceeds
were commingled with other funds.”).
18
government’s evidence in the eyes of some jury. But Defendants’ evidence does
not nullify the government’s evidence to demand that we overturn a factual finding
by the jury that the funds came from illegal activity.
Defendants next contend that no evidence was presented from which a
reasonable jury could determine that Defendants actually knew the funds provided
in the pertinent transactions were proceeds from narcotics dealing. Evidence
presented by the government supported finding that both Defendants 1) knew that
their long-time clients were high level drug traffickers; and, 2) were close to and
knew Rodriguez-Orejuela and his associates well.
Evidence presented by the government against Abbell further supported
findings that 1) Abbell altered, deleted, or destroyed his financial records involving
Rodriguez-Orejuela; 2) Abbell worked closely with his long-time associate,
Laguna, who testified that he (Laguna) was in “constant contact” with Abbell
about their representation of Rodriguez-Orejuela and other Cartel clients; and 3)
Laguna knew that all Rodriguez-Orejuela’s businesses were funded with narco-
profits.
Abbell contends that the government essentially argues that Abbell knew
that the funds he received were derived from narcotics trafficking because Abbell
knew his client was involved in narcotics trafficking. Abbell argues that evidence
19
that he knew of Rodriguez-Orejuela’s extensive narcotics trafficking is not
sufficient to prove that Abbell had knowledge of the illegality of the funds he
received, considering that the evidence of Rodriguez-Orejuela’s “legitimate”
business interests establishes a legitimate source of funds from which Abbell
reasonably believed he was being paid.
As discussed above, the evidence of Rodriguez-Orejuela’s allegedly
legitimate business interests in Columbia is slight: no formal documents
evidencing their existence and no evidence of the amount of money they allegedly
produced. The government’s evidence, in contrast, tends to show that all of the
businesses were established with narcotics proceeds and allows -- when combined
with other evidence -- a reasonable jury to infer that Abbell knew (based on the
reasonable inference of what Laguna told Abbell)6 that all Rodriguez-Orejuela’s
businesses were established with narcotics proceeds. Thus, if the evidence shows
that Rodriguez-Orejuela had other business interests, the evidence also shows that
Abbell knew those interests were not legitimate. In other words, the evidence
supported a jury finding beyond a reasonable doubt that, to the extent Rodriguez-
6
Laguna testified that he was in “constant contact” with Abbell about their representation of
Rodriguez-Orejuela and other members of the Cartel for drug trafficking – including forfeiture
proceedings that required investigation into the finances of Cartel businesses in Columbia.
Abbell’s office manager also testified that Laguna and Abbell talked two or three times a day.
The jury could reasonably infer that Laguna told Abbell about the state of Rodriguez-Orejuela’s
businesses in Columbia: that they were all financed with narco-profits.
20
Orejuela had other business interests, Abbell knew that those business interests
were so intertwined with Rodriguez-Orejuela’s narcotics trafficking that money
paid by Rodriguez-Orejuela came, at a minimum, from commingled funds.
The government’s evidence that, in the days and weeks before a search
warrant was executed against Abbell’s office, Abbell destroyed or altered his
records of his bills to Rodriguez-Orejuela – including his bills for reimbursements
for payments to third-parties on Rodriguez-Orejuela’s behalf – further supports a
reasonable jury’s finding that Abbell knew the money he was paid involved the
drug trade. See United States v. Mastropieri, 685 F.2d 776, 790-91 (2d Cir. 1982)
(“There can be no doubt that an attempt to suppress material records permits an
inference of consciousness of guilt and therefore of guilt itself.”); c.f. United States
v. Hughes, 716 F.2d 234, 240-41 (4th Cir. 1983) (“Fabrication of evidence by a
defendant ... [is] clearly admissible to prove his guilty state of mind.”).
The government also presented sufficient evidence upon which a jury could
reasonably find that Moran knew that the money he received was derived from
narcotics trafficking. The government presented evidence that Moran often
solicited money from Rodriguez-Orejuela. When he made these solicitations, he
normally did not indicate that he needed “clean money,” or that he desired unclean
money. For instance, in Moran’s notes that he made after a meeting with Torres in
21
jail, Moran recorded that he needed to request money from Rodriguez-Orejuela to
pay to Torres for support of his family.7 Those notes do not mention any
requirement that the money be “clean.” A fax from Moran to Rodriguez-
Orejuela’s men in Columbia during the same period also requests money for Torres
without specifying that it be “clean money.” In contrast, another fax from Moran
to Rodriguez-Orejuela’s men in Columbia, also sent around the same time,
specifically requested “CLEAN MONEY” (all caps in original) for use in
obtaining Torres’ bond. Such a request could either imply that Moran only dealt in
clean money or, especially in the light of his failure to request “clean money” in
other situations, that he felt he needed clean money only for this specific
transaction.8 Such a determination is for the jury. We think that this “CLEAN
MONEY” evidence supports a beyond-reasonable-doubt jury finding that Moran
was aware that some money he was receiving was from narcotics trafficking. Put
differently, we accept that a jury could treat the emphatic and isolated request for
“clean money” as evidence that “clean money” was the exception to the usual rule
7
Immediately after this meeting with Torres, Moran flew to Columbia and met with
Rodriguez-Orejuela. Moran then flew back with money for Torres and couriered $10,000 to
Torres’ wife.
8
In fact, evidence was presented to the jury that Moran did need clean money for this specific
transaction. Torres’ bond included an explicit requirement that the money not be proceeds of
illegal activity. Thus, a jury could reasonably conclude that, when outside influences demanded
the use of clean money, Moran requested clean money because he knew that if he did not request
clean money, the money he received would be from narcotics trafficking.
22
of dirty money. We recall the ancient legal maxim: the exception also declares the
rule.9
We now address whether the evidence supports a finding that the
transactions in which Defendants were involved were designed to conceal the
source of the funds. Abbell concedes that he engaged in the following
transactions. He, on multiple occasions, paid money into the commissary accounts
of inmates: both those inmates he represented and those he did not. He deposited
this money in their accounts using money orders paid for by Ristau & Abbell and
signed by Abbell or Ristau. Abbell then billed Rodriguez-Orejuela for these sums.
Abbell also paid Mrs. Giron (wife of one of the defendants) $3,000. He then billed
Rodriguez-Orejuela for the $3,000. Abbell’s office manager testified that
Rodriguez-Orejuela thereafter reimbursed Abbell for the deposits and the $3,000.
Moran concedes that he engaged in the following transactions. He paid Mrs.
Giron $5,000 in cash. He paid her this money in his office. He sent Mrs. Torres
(wife of another defendant) $10,000 in cash. This money was sent via commercial
courier, identifying his law firm as the sender. Evidence was presented that the
9
Exceptio quoque regulam declarat: “[t]he exception also declares the rule.” S.S. Peloubet, A
Collection of Legal Maxims in Law and Equity 74 (Fred B. Rothman & Co. 1985) (1884)
(collecting legal maxims, citing to their origin, and providing English translations). A related
maxim states: Exceptio probat regulam de rebus exceptio, “[a]n exception proves the rule
concerning things not excepted.” Id.
23
cash for both of these payments was given to Moran by Rodriguez-Orejuela in
Cali.
Defendants argue that no evidence shows that these payments were designed
to conceal the source of the funds; they say they were paid to help people in need
of financial assistance. Defendants argue that evidence did not demonstrate the
“legitimization” step required for money laundering. We disagree.
Defendants correctly point out that we have said section 1956(a)(1)(B)(i) is
“designed to punish defendants who thereafter take the additional step of
attempting to legitimize their proceeds so that observers think their money is
derived from legal enterprises.” United States v. Majors, 196 F.3d 1206, 1212
(11th Cir. 1999). The facts here do not appear to be that kind of case. No evidence
shows that the pertinent transactions ended up creating the appearance of
legitimate wealth for Rodriguez-Orejuela.
But, the text of the statute is not that restrictive. It applies to transactions
involving illegal proceeds when the transaction is designed “to conceal or disguise
the nature, the location, the source, the ownership, or the control of the proceeds of
specified unlawful activity.” 18 U.S.C. § 1956 (a)(1)(B)(i). The statute does not
always require that the appearance of legitimate wealth be generated for
Rodriguez-Orejuela. We believe it is enough for the statute that Defendants
24
engaged in transactions from which Rodriguez-Orejuela received a benefit (and
moneys were paid on behalf of Rodriguez-Orejuela) while concealing that
Rodriguez-Orejuela was the source of the funds.10
In this case, the evidence showed 1) Rodriguez-Orejuela was obligated to
take care of people to maintain the code of silence; 2) Rodriguez-Orejuela was
seeking to avoid extradition to, and prosecution in, the United States by obtaining
from employees affidavits stating that they did not even know who he was; 3)
Defendants were involved in obtaining the affidavits while they were involved at
the same time in dispersing funds from Rodriguez-Orejuela to employees, and their
wives, who were claiming not to know Rodriguez-Orejuela; 4) Rodriguez-Orejuela
gave Defendants large sums of money; and 5) Defendants then paid large amounts
of this money to others, including employees from whom affidavits were sought
and their wives.11 This evidence supports a jury finding that these transactions
10
Concealing the source of funds does not need to be the only goal of the pertinent
transaction. See United States v. Wynn, 61 F.3d 921, 924 (D.C. Cir. 1995). Also, that
Defendants openly made payments to the Bureau of Prisons, Mrs. Torres, and Mrs. Giron fails to
demonstrate that they were not attempting to disguise the source of the funds. See United States
v. Starke, 62 F.3d 1374, 1384 (11th Cir. 1995).
11
In Abbell’s case, points four and five are reversed for the transactions discussed. In the
context of this case, the fact that Abbell first advanced his own money in the transactions at issue
and then sought reimbursement from Rodriguez-Orejuela is of no legal consequence. Abbell,
however, argues that “before the primary offense of money laundering can occur, the underlying
criminal activity must be complete.” Majors, 196 F.3d at 1212 n.13. The flaw in Abbell’s
reliance on quotes like the one above is that evidence showed that Rodriguez-Orejuela had,
before Abbell made the payments at issue, already engaged in massive illegal narcotics
25
were designed to conceal that Rodriguez-Orejuela was paying money to persons,
and their families, who were claiming that they did not know who he was.
The evidence thus adequately supports the finding that Defendants willfully
participated in a conspiracy to conceal the source of funds that were the proceeds
of unlawful conduct and were paid to cartel employees and their families by
Rodriguez-Orejuela.
RICO Conspiracy
We review the district court’s entry of judgment of acquittal for insufficient
evidence on the RICO conspiracy charge de novo. United States v. Toler, 144 F.3d
1423, 1428 (11th Cir. 1998). We must take the evidence in the light most
favorable to the government and determine whether a reasonable jury could have
concluded beyond a reasonable doubt that Defendants were guilty of the offense
charged. Id.
The indictment charged Defendants with participating in a RICO conspiracy
and listed various forms of obstruction of justice and money laundering as
trafficking. We discern no other relevant difference between the order in which Abbell and
Moran completed points four and five.
26
predicate acts agreed to by Defendants. Agreement to participate in a RICO
conspiracy can be proved in one of two ways: 1) by showing an agreement on an
overall objective; or, 2) by showing that a defendant agreed personally to commit
two predicate acts and therefore to participate in a single objective conspiracy.
United States v. Church, 955 F.2d 688, 694 (11th Cir. 1992). If the government
can prove an agreement on an overall objective, it need not prove a defendant
personally agreed to commit two predicate acts. United States v. To, 144 F.3d 737,
744 (11th Cir. 1998).12
For Defendant Moran, we have little trouble determining that a reasonable
jury could have concluded beyond a reasonable doubt that he agreed to commit
two predicate acts showing an agreement to participate in the RICO conspiracy.
We have already addressed Moran’s activities in the money laundering
conspiracy which supports a finding that he was engaged in those predicate acts.
12
Paragraph 2 of the indictment lists over 70 people as well as “others known and unknown to
the grand jury.” It then says that they “managed, operated, were employed by and associated
with the Enterprise.”Defendants argue that this language requires the government prove
Defendants operated or managed the conspiracy, even though the law of this circuit does not
require such proof for a RICO conspiracy. We disagree.
In the light of the whole indictment, it is clear to us that paragraph 2 is a general
statement that this group of over 70 people, as a group, managed, operated, was employed by
and associated with the Enterprise – not that each person individually did all of these things.
The indictment goes on to charge specific acts within the conspiracy to the many individuals
allegedly involved. Because neither the indictment nor the law of the circuit require proof that
Defendants operated or managed the enterprise, Defendants’ collateral estoppel argument also
fails.
27
Moreover, evidence supports the conclusion that Moran was very much involved in
obtaining multiple false affidavits from members of the Cartel who were arrested
importing drugs – each false affidavit constituting a separate predicate act.
Copies of affidavits were found on Moran’s computers in his office. Also,
letters to other attorneys were presented into evidence where Moran outlined the
procedure for procuring affidavits from their clients that would exculpate
Rodriguez-Orejuela. In one letter Moran wrote to Rodriguez Orejuela; “Setting
aside our most recent disagreements as to the best way of acquiring certain
affidavits, my observations is that what was most important to accomplish has been
attained, and at the same time I think that some of my suggestions, at least in part,
that of using an independent attorney (Laguna), has been suitable to this matter,
and everyone came out clean.” This letter is at least evidence of Moran’s
organizational capacity in the false affidavit scheme and his awareness that special
procedures needed to be used for everyone to come out “clean.” A jury could infer
from this letter both an organizational role by Moran and guilty knowledge on his
part.
About Defendant Abbell, in addition to his acts in the money laundering
conspiracy, we conclude the government offered sufficient evidence of two
predicate acts of obstruction of justice, supporting the jury’s verdict for RICO
28
conspiracy. We focus specifically on two predicate acts. First, Abbell’s
involvement in trying to obtain a false exculpatory affidavit from Ackerman; and,
second, his involvement in the section 1782 deposition process.
Evidence was presented that Abbell was deeply involved in obtaining a false
affidavit from Ackerman. While attempting to get the affidavit from Ackerman,
Abbell spoke with Ackerman’s lawyer Ed Shohat. Shohat recognized the affidavit
as false and that Abbell knew the affidavit was false. Shohat also testified that
Abbell had told Rodriguez-Orejuela that Shohat would make sure Ackerman
signed the affidavit, thus putting Shohat in danger if Ackerman did not sign.
Abbell also visited Ackerman in prison, where Ackerman indicated he intended to
sign the affidavit and asked Abbell to ask Rodriguez-Orejuela to pay his attorney’s
fees.
Evidence was also presented that Abbell directed the 1782 deposition
scheme. Abbell targeted employees of the Cartel likely to give false exculpatory
statements benefitting Rodriguez-Orejuela, but warned against deposing employees
of the Cartel who might give damaging statements. Abbell knew that the
employees he targeted, such as Giron whom he represented, would have to lie to
answer the questions in a manner that benefitted Rodriguez-Orejuela.
29
Abbell argues that his activities in obtaining false affidavits and directing
efforts to obtain section 1782 depositions could not, as a matter of law, possibly
constitute predicate acts of obstruction of justice. Relying on United States v.
Aguilar, 115 S. Ct. 2357 (1995), and United States v. Vaghela, 169 F.3d 729 (11th
Cir. 1999), Abbell -- correctly, we think -- contends that a person does not engage
in obstruction of justice unless his acts will have the natural and probable effect of
interfering with a judicial proceeding. He then says that, because the affidavits and
the section 1782 depositions were meant only to be used in extradition proceedings
in Columbia, and that the possibility of such extradition proceedings ever
occurring were extremely low, the possibility of use in a judicial proceeding was,
at best, speculative.
After reviewing the statute and the precedents upon which Abbell relies, we
conclude that his arguments are without merit. In Aguilar, the essential question
was the intent of the defendant. Aguilar 115 S. Ct. at 2362. The Court wrote that,
when a person makes a statement to an investigating official (and the speaker is not
aware that it is likely that the official will testify in a judicial proceeding) not
enough evidence is presented of that lying person’s intent to interfere with a
judicial proceeding. Id. at 599. But in Vaghela, we said the requirement that
defendants’ acts have the natural and probable effect of interfering with the due
30
administration of justice is not so narrow as to exclude efforts “to obstruct specific
future judicial proceedings.” Vaghela, 169 F.3d at 734.
In this case, Rodriguez-Orejuela had already been named in several cases as
a codefendant. Therefore, judicial proceedings in the United States were in
progress to which the false affidavits and depositions could be linked. Defendants’
claim that the affidavits or depositions were to be used in extradition proceedings
in Columbia is not determinative. It is clear that these affidavits (which were in
English) could also be used as a defense if Rodriguez-Orejuela was ever forced to
stand trial in one of the cases in which he was a named defendant.13 Moreover, a
lawyer working the affidavit scheme would know that these affidavits and
depositions could be so used.
Because we conclude that sufficient evidence was produced by which a jury
could find beyond a reasonable doubt that Defendants agreed to overall goals of
the RICO conspiracy or engaged in two predicate acts manifesting their agreement,
or both, the district court’s order granting Defendants judgment of acquittal on
Count I must be vacated.
13
Defendants come close to admitting as much when they say that the affidavits would not
have been very helpful to an extradition proceeding in Columbia, because they say factual
innocence is no defense to extradition in Columbia.
31
Defendants’ Motion for New Trial
Defendants argue that they are entitled to a new trial for two reasons. First,
they say that new evidence on Juror Blanton’s plans to write a book about the case
demanded more inquiry by the district court into what influence this plan had on
jury deliberations. Second, they say they were denied their right to a unanimous
jury verdict when the court improperly excused Juror Alfonso for cause under Fed.
R. Crim. P. 23(b). We conclude Defendants are not entitled to a new trial: the
district court did not abuse its discretion.
Juror Blanton
We first briefly address, and determine that there is no merit in, Defendants’
arguments regarding Juror Blanton. The district court correctly noted that no
factual basis exists for the assertion that Blanton shared outside information with
the jury during trial. And Blanton’s plan to write a book about his experiences on
the jury does not constitute the kind of allegation about outside influence that we
have said requires an investigation by a district court. See United States v.
32
Caldwell, 776 F.2d 989, 996 (11th Cir. 1985) (“The more speculative or
unsubstantiated the allegation of misconduct, the less the burden to investigate.”).
Dismissal of Juror Alfonso
We review a district court’s ultimate decision to excuse a juror after the start
of deliberations for abuse of discretion. United States v. Register, 182 F.3d 820,
839 (11th Cir. 1999). And, in the context of other juror removal cases, we have
written that “[w]e will reverse the district court only if we find that it discharged the
juror ‘without factual support, or for a legally irrelevant reason.’ ” Id. at 839
(quoting United States v. Smith, 918 F.2d 1501, 1512 (11th Cir. 1990)).
Federal Rule of Criminal Procedure 23(b) permits a district court "to excuse a
juror for just cause after the jury has retired to consider its verdict.” “Just cause”
exists to dismiss a juror when that juror refuses to apply the law or to follow the
court’s instructions. United States v. Geffrard, 87 F.3d 448, 451-52 (11th Cir.
1996) (excusing juror who expressed inability to follow judge's instructions on the
law due to religious beliefs).
Juror Alfonso was dismissed after other members of the jury alleged, in a
note to the district court judge, that Juror Alfonso was not applying the law as
33
directed. A risk exists, however, that ten or eleven members of a jury that have
collectively reached agreement on a case’s outcome may thereafter collectively
agree that the one or two hold-outs – instead of honestly disagreeing about the
merits – are actually refusing to apply the law as instructed by the court in an
impermissible attempt to nullify the verdict. The jury’s majority may very well
further agree to request the court’s intervention with regard to those one or two
dissenting jurors who are, according to the majority, refusing to apply the law.
Thus, judges must be careful not to dismiss jurors too lightly, even in the face of
complaints from a majority of the jury. Federal defendants have some right (be it
statutory or perhaps constitutional) to a unanimous verdict by, normally, twelve
jurors.
Because of the danger that a dissenting juror might be excused under the
mistaken view that the juror is engaging in impermissible nullification, we must
apply a tough legal standard. In these kind of circumstances, a juror should be
excused only when no “substantial possibility” exists that she is basing her decision
on the sufficiency of the evidence. See United States v. Thomas, 116 F.3d 606,
621-22 (2d Cir. 1997); United States v. Brown, 823 F.2d 591, 596 (D.C. Cir.
34
1987).14 We mean for this standard to be basically a “beyond reasonable doubt”
standard.
We also conclude that, for example, whether a juror is purposely not
following the law is a finding of fact that we will review for clear error.15 De novo
review would undermine the well-established rule that the abuse of discretion
standard applies to a district court’s decisions involving juror misconduct. See, e.g.,
United States v. Yonn, 702 F.2d 1341, 1344-45 (11th Cir. 1983). Furthermore,
because the demeanor of the pertinent juror is important to juror misconduct
determinations, the district court is uniquely situated to make the credibility
determinations that must be made in cases like this one: where a juror’s motivations
and intentions are at issue. See United States v. Gabay, 923 F.2d 1536, 1543 (11th
Cir. 1991) (district judge is in a position to observe jurors on a daily basis and listen
to their pledges to deliberate fairly and is therefore in the best position to judge
14
In United States v. Brown, the D.C. Circuit used both the term “any possibility” and the
term “substantial possibility.” We believe the terms are interchangeable, both meaning a
tangible possibility, not just a speculative hope. Cf. Pierce v. Underwood, 108 S. Ct. 2541, 2549-
50 (1988) (noting two different meanings of “substantial;” one meaning a high degree or great
deal of something, the other meaning in substance or in the main).
15
The Ninth Circuit explicitly applied a clearly erroneous standard of review to a district
court’s findings of fact and credibility determinations on jury misconduct, United States v.
Matta-Ballesteros, 71 F.3d 754, 765-66 (9th Cir. 1995), and the Second Circuit, in a case after
Thomas, wrote that a district court’s finding regarding a juror’s misconduct “is a finding of fact
to which appropriate deference is due.” See United States v. Baker, ___ F.3d ____ (2d Cir.
August 15, 2001).
35
demeanor of jurors). Cf. Owens v. Wainright, 698 F.2d 1111, 1113 (11th Cir. 1983)
(“Appellate courts reviewing a cold record give particular deference to credibility
determinations of a fact finder who had the opportunity to see live testimony”).16
Thus, a district judge is required to apply the “substantial possibility” standard to
his own investigation and in coming to his determination that the juror is or is not
basing her decision on the sufficiency of the evidence. But, if the trial court applies
this standard and determines as a matter of fact that no substantial possibility exists
that the pertinent juror is basing her decision on the sufficiency of the evidence, we
will review that finding only for clear error.
In this case, the district court, after an evidentiary hearing, found these facts:
1) Alfonso “was unwilling to follow the law, and [ ] was engaged in an attempt to
willfully disregard the Court’s instructions;” 2) “the record does not reveal a
‘substantial possibility’17 that Juror Alfonso’s position was due to her belief that the
evidence was insufficient to support a conviction as to the RICO conspiracy;” and
3) “she did not intend to follow the Court’s instructions – that Juror Alfonso did not
16
After reading the record of the district court’s inquiry in this case, we are strengthened in
our view of the need to provide deference to the district court’s determination of facts in
situations like these.
17
The district court relied on Brown and other cases which we use here today and put the
term “substantial possibility” in quotation marks in his order. We accept that the district court
applied the same “substantial possibility” standard that we apply today.
36
intend to apply the law as set forth in those instructions and had not changed her
mind following the Court’s instructions.”
Briefly stated, our review of the record shows the following. All jurors
agreed that early in the process Juror Alfonso, in some way, made comments that
she did not have to follow the law and that the court’s instructions were only
advisory and not binding on the jury.18 After this information came to light, the trial
court gave more instructions about the jury’s duty to apply the law and to obey the
court’s instructions. After this additional instruction, Alfonso made no more direct
statements about her intention not to follow the law. The majority of the jurors,
however, said that she still was not engaged in deliberations, would not consider
evidence nor discuss the applicable law. Some jurors indicated that they were
outraged by Alfonso’s decision to do her nails during deliberations.19 The trial
court -- sometime after having given its additional charge on the duty to follow the
18
We stress that the other jurors testified that Juror Alfonso actually said she was not going to
follow the law, not simply that they believed Juror Alfonso was not following the law.
19
Although we are not deciding today to what degree a juror’s duty to deliberate requires her
to be actively engaged in debate, we do believe that, when a district court is investigating the
possibility of impermissible nullification by a juror and when that juror has said at an earlier time
in deliberations that she need not follow the law or the judge’s instructions, a later display of
unwillingness to deliberate or to engage in discussion is something the court can take into
consideration in determining the credibility of the pertinent juror’s claims that she is now
applying the law and obeying the instructions of the court.
37
law -- talked to each of the jurors, including Alfonso herself.20 Juror Alfonso’s own
testimony on her commitment to following the law was not certain. We accept that
the record supports the district court’s skeptical view of Juror Alfonso’s answers to
its questions and that the district court’s findings about Alfonso’s intentions are
supported by the record.
This record shows that the district court’s determination that Juror Alfonso
was not basing her decision on the sufficiency of the evidence was not clearly
erroneous, even in the light of a beyond a reasonable doubt standard. Because the
district court applied the correct standard – no substantial possibility that the juror
was basing her decision on the sufficiency of the evidence – we conclude that it was
no abuse of discretion for the trial court to dismiss Juror Alfonso.
CONCLUSION
20
We conclude that Defendants’ argument that the district court’s inquiry so tainted the jury
pool as to make a fair trial impossible is without merit. The record shows the court proceeded
with extreme caution to protect the integrity of the jury process. Moreover, the court instructed
the jury after Alfonso’s dismissal that his dismissal should not affect their deliberations. To find
much fault with the inquiry in this case would unduly hinder a district court’s ability to detect
and rectify a juror’s refusal to obey her duty in applying the law to the case and obeying the
court’s instructions. See United States v. Harris, 908 F.2d 728, 733 (11th Cir. 1990) (district
courts have broad discretion in determining the proper investigative procedure for looking into
alleged juror misconduct). We do, however, caution district courts to be careful about invading
the secrecy of the jury’s deliberations and to err on the side of too little inquiry as opposed to too
much.
38
In regard to Abbell and Moran, we have concluded that the government
presented sufficient evidence to sustain their convictions on both money laundering
conspiracy (Count IX) and RICO conspiracy (Count I). The district court’s
judgment of acquittal for Defendants on the RICO conspiracy charge must be
vacated and Defendants’ convictions for RICO conspiracy must be reinstated.
Defendants’ sentences are vacated in their entirety and remanded to the district
court for resentencing.21
AFFIRMED in PART and REVERSED in PART and REMANDED.
21
Because Defendants’ sentences have been vacated in their entirety and remanded to the
district court for resentencing consistent with this opinion, we need not address the government’s
sentencing arguments.
39