[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
JULY 27, 2005
No. 03-10694 THOMAS K. KAHN
________________________ CLERK
D. C. Docket No. 99-00583-CR-PAS
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
SALVADOR MAGLUTA,
a.k.a. Sal,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(July 27, 2005)
Before CARNES and COX, Circuit Judges, and MILLS *, District Judge.
*
Honorable Richard Mills, United States District Judge for the Central District of
Illinois, sitting by designation.
CARNES, Circuit Judge:
In August of 2002, a jury convicted Salvador Magluta of twelve counts:
eight counts of laundering drug proceeds, and one count each of conspiracy to
launder drug proceeds, conspiracy to obstruct justice, obstruction of justice by
bribing a witness, and obstruction of justice by bribing a juror. The jury also
returned a special forfeiture verdict requiring Magluta to forfeit $15 million in
currency, and also some real property.
In January of 2003, the district court sentenced Magluta to 2,460 months
(205 years) in prison. The total sentence was rang up this way: 240 months on
each of the eight substantive drug proceeds laundering counts; 240 months on the
conspiracy to launder count; 60 months on the conspiracy to obstruct justice count;
120 months on the obstruction by bribing a juror count; and 120 months on the
obstruction by bribing a witness count. Each sentence was made consecutive to
every other one.
Magluta asserts that his convictions on a number of the counts must be
reversed and also that his sentence was incorrectly calculated. First, he contends
that his convictions on all nine of the money laundering counts (eight substantive
and one conspiracy) must be reversed on collateral estoppel grounds. The basis for
this contention is that six years before this trial he was acquitted of substantive
2
drug offenses, and evidence of those offenses was used to prove the money
laundering charges in this trial. Second, Magluta contends that the evidence was
insufficient to support his convictions on the eight substantive money laundering
counts.
Magluta’s third and fourth contentions attack his conviction on the
obstruction of justice through juror bribery count. He argues that it must be
reversed because the district court erred in admitting certain out-of-court
statements of a bribed juror under the co-conspirator exception to the hearsay rule
contained in Fed. R. Evid. 801(d)(2)(E). He also argues that this conviction must
be reversed because the district court did not give a special unanimity instruction
geared to the identity of the juror who was allegedly bribed.
Fifth, Magluta contends that documentary evidence vital to several of his
convictions was seized and admitted at trial in violation of his Fourth Amendment
rights thereby tainting some of his convictions. If we agree, he asks that we
remand to the district court with instructions for it to determine which of his
convictions were tainted by this assertedly erroneously introduced evidence.
Finally, Magluta makes several arguments that his sentence was incorrectly
calculated. We will address each of these six major contentions in the order we
have listed them.
3
I.
Magluta’s attack on his money laundering convictions in this case centers
around his 1996 acquittal on all of the twenty-four drug-related counts against him.
In that earlier case the district court granted judgments of acquittal on seven
counts, and the jury acquitted Magluta of all of the remaining ones. Among the
charges for which Magluta was acquitted in the earlier trial were: operating a
continuing criminal enterprise from January 1978 through April 1991; conspiring
to import and distribute cocaine during that same period of time; and engaging in a
number of substantive drug importation and distribution offenses from 1986
through 1989. The continuing criminal enterprise count in that earlier case
incorporated all of the conspiracy and substantive drug offenses that were
separately charged in that case.
Magluta contends that the 1996 acquittal established that he was not
involved in drug offenses during the periods of time charged in that case, which
include the times when the crimes charged in this case took place. His position is
that the government was collaterally estopped from introducing in this case
evidence of drug offenses allegedly committed during the periods of time covered
by the charges in the first case. The district court disagreed, and so do we.
The government did introduce in this case evidence of criminal activity for
4
which Magluta had been acquitted in the earlier case. The money laundering
conspiracy charged in this case involved criminal activity beginning in January
1979 and extending through December 2001, and the substantive money
laundering charges involved criminal activity that occurred in October and
December 1998. In proving those charges in this case, the government introduced
evidence of illegal drug activities that had taken place between 1978 and
1991,which is the period of time alleged in indictment in the earlier case where
Magluta was acquitted.1 The government used evidence of that criminal activity in
order to establish in this case the “specified unlawful activity” element, 18 U.S.C.
§ 1956(a)(1)(B)(i), of the money laundering charges against Magluta.2
“The doctrine of collateral estoppel is a narrow exception to the
Government’s right to prosecute a defendant in separate trials for related conduct.”
1
As we say in the text, Magluta was acquitted in the 1996 trial of charges that he had
committed drug offenses beginning in 1978. He said during that trial he had ceased all illegal
drug activities in 1980. As a consequence of his having acknowledged that he had engaged in
drug activities until some time in 1980, Magluta has narrowed the issue he is raising in this case
to whether the government was collaterally estopped from attempting to prove that he engaged
in illegal drug activities between 1980 and 1991.
2
To prove that Magluta engaged in money laundering under 18 U.S.C.
§ 1956(a)(1)(B)(i), the government had to establish that: (1) Magluta conducted or attempted to
conduct a financial transaction; (2) the transaction involved the proceeds of a statutorily
specified unlawful activity; (3) Magluta knew the proceeds were from some form of illegal
activity; and (4) Magluta knew a purpose of the transaction was to conceal or disguise the nature,
location, source, ownership, or control of the proceeds. See United States v. Majors, 196 F.3d
1206, 1212 (11th Cir. 1999). Felony drug offenses qualify as a “specified unlawful activity” as
that term is used in § 1956. See 18 U.S.C. §§ 1956(c)(7)(B)(i) & (A), 1961(1).
5
United States v. Brown, 983 F.2d 201, 202 (11th Cir. 1993); see also United States
v. Garcia, 78 F.3d 1517, 1521 (11th Cir. 1996). Collateral estoppel “bars a
subsequent prosecution only where a fact or issue necessarily determined in the
defendant’s favor in the former trial is an essential element of conviction at the
second trial.” Brown, 983 F.2d at 202; see also Garcia, 78 F.3d at 1521.
Applying the collateral estoppel doctrine requires a two-step analysis:
First, a court must decide whether it can ascertain the basis of the acquittal at
the first trial. More precisely, a court must determine whether the jury’s
verdict of acquittal was based upon reasonable doubt about a single element
of the crime which the court can identify. [Second], the court must then
decide whether that element is also an essential element of the crime for
which the defendant was convicted in the second trial.
Brown, 983 F.2d at 202. “‘[T]he identity of overlapping elements required for
collateral estoppel must extend beyond the legal definition of the elements.’ There
also has to be such factual identity of the issues that ‘[t]he subsequent verdict of
conviction [is] rationally inconsistent with the prior verdict of acquittal.’” Garcia,
78 F.3d at 1521 (quoting Brown, 983 F.2d at 202). The burden of persuasion is on
the defendant as to both steps of the analysis. Id.; Brown, 983 F.2d at 202.
As for the first step, Magluta argues that the basis of his 1996 acquittal was
that he had ceased all drug trafficking activities in May 1980. This has to have
been the basis for his acquittal, Magluta says, because it was the only defense he
put forward to the crimes alleged in his 1996 trial. We can assume without
6
deciding that Magluta is right about this point, and thereby satisfies the first step of
the collateral estoppel test, because he does not satisfy the second one.
The second step of the collateral estoppel test requires Magluta to establish
that the elements of the crime on which the prior acquittal was based are also
essential elements of the crime for which he was convicted at the second trial. See
Garcia, 78 F.3d at 1521; Brown, 983 F.2d at 202. That is to say, Magluta must
show that the elements of the drug offenses which led to his acquittal in the 1996
trial are essential elements of the money laundering offenses for which he was
convicted in this case.
Even if we accept for present purposes Magluta’s premise that his 1996
acquittal established he was not involved in the illegal drug activity with which he
had been charged in that earlier case, his argument still fails. It fails because
Magluta’s personal involvement in, or guilt of, the criminal activity charged in the
earlier case is not an element of the money laundering charge he was convicted of
in this case. This indictment charged Magluta with money laundering in violation
of 18 U.S.C. § 1956(a)(1)(B)(i), with the specified unlawful activity being felony
drug offenses. The government had to prove that Magluta, with the requisite
knowledge and intent, conducted a financial transaction involving the proceeds of
felony drug offenses. See Majors, 196 F.3d at 1212. The government did not have
7
to prove, however, that Magluta committed the felony drug offenses. See id. As
far as the money laundering statute is concerned, laundering someone else’s illegal
proceeds is just as bad as laundering your own—there is no help-thy-neighbor
exception to § 1956(a)(1)(B)(i). Accordingly, the collateral estoppel effect of
Magluta’s 1996 acquittal of illegal drug activity does not extend to any of the
essential elements of the money laundering charges on which he was convicted in
this case.
II.
Magluta challenges the sufficiency of the evidence to support his
convictions on the eight substantive money laundering counts. While phrased in
sufficiency of the evidence terms, Magluta’s actual challenge here raises the issue
of whether the relevant facts, which are essentially undisputed, constitute money
laundering. As we have mentioned, Magluta was convicted of money laundering
conducted for the purpose of concealing the nature, location, source, ownership, or
control of the illegal drug proceeds, in violation of 18 U.S.C. § 1956(a)(1)(B)(i).
The charges and evidence centered on the fact that Magluta had paid his lawyers
with checks written from an Israeli bank account held under a fictitious name.
On September 10, 1998, Richard Passapera, a Magluta associate, delivered
$1.2 million in illegal drug proceeds to Antonio Garcia, another Magluta associate,
8
in Miami. Unbeknownst to Passapera and Magluta, however, Garcia had become
an FBI informant. Garcia turned the money over to the FBI, which transported it
to New York where it gave the money back to Garcia in order to complete the
transaction. In New York, Garcia gave the money to Harry Kozlik and Isaac
Benatar, who were also Magluta associates. Kozlik transported the money to Israel
and deposited it in an Israeli bank under the fictitious name of “Leonard
Friedman.” Kozlik eventually provided Garcia with eight blank checks issued
from the account. Garcia, at the direction of the FBI, passed the checks on to
Passapera. Magluta then used the checks to pay his lawyers.
Magluta makes three arguments to support his position that the established
facts about what happened to the drug proceeds are not sufficient to make out
money laundering. His first argument is that, because the proceeds had been under
the control of law enforcement before he used them to pay his lawyers, the money
had lost its “tainted” character and was no longer proceeds of a specified illegal
activity in the sense required by § 1956(a)(1)(B)(i). Unable to find a money
laundering decision of any court on point with his position, Magluta asks us to
draw an analogy to stolen property cases, where property loses its “stolen”
character once it is recovered and controlled by law enforcement. See, e.g., United
States v. Cohen, 274 F. 596, 599 (3d Cir. 1921). We are not persuaded to do that.
9
The plain language of the money laundering statute requires that the
“financial transaction . . . in fact involves the proceeds of [a] specified unlawful
activity.” 18 U.S.C. § 1956(a)(1). But there is nothing in the statutory language to
suggest that, in addition to being from a specified unlawful activity, the proceeds
must never have been in the control of the government before they reached the
defendant. It seems to us that laundered money does not become any less
laundered because the government helped the process along or chose not to stop it.
Having said that, we are not asked to decide whether government intrusion into
laundering transactions ever could rise to the level that the money no longer
qualifies as the “proceeds of [a] specified unlawful activity” under § 1956(a)(1).
All we must decide here is whether the level of government involvement in this
case was enough to change the nature of the proceeds. On the facts of this case, it
was not.
Magluta’s second argument is that allowing actual drug proceeds which
have been in the possession of the government to form the basis for a conviction
under § 1956(a)(1) would make the money laundering “sting” statute, 18 U.S.C.
§ 1956(a)(3), superfluous.3 Sections 1956(a)(1) and 1956(a)(3) cover different
3
18 U.S.C. § 1956(a)(1) states:
(a)(1) 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
10
situations. The (a)(1) subdivision covers situations where the proceeds are actually
from a specified unlawful activity. 18 U.S.C. § 1956(a)(1). The (a)(3) subdivision
covers situations where the government, or some person at the direction of the
government, represents that the proceeds are from a specified unlawful activity
though in reality they are not. Id. § 1956(a)(3). The two provisions serve different
purposes. Neither provision is rendered superfluous by our holding that the level
of government involvement in the laundering in this case was not enough to
financial transaction which in fact involves the proceeds of specified unlawful activity—
....
(B) knowing that the monetary instrument or funds involved in the transportation,
transmission, or transfer represent the proceeds of some form of unlawful activity
and knowing that such transportation, transmission, or transfer is designed in
whole or in part—
(i) to conceal or disguise the nature, the location, the source, the
ownership, or the control of the proceeds of specified unlawful activity; or
....
shall be sentenced to a fine of not more than $500,000 or twice the value of the property
involved in the transaction, whichever is greater, or imprisonment for not more than
twenty years, or both.
Id. (emphasis added).
18 U.S.C. § 1956(a)(3) states:
Whoever, with the intent—
....
(B) to conceal or disguise the nature, location, source, ownership, or control of
property believed to be the proceeds of specified unlawful activity; or
....
conducts or attempts to conduct a financial transaction involving property represented to
be the proceeds of specified unlawful activity, or property used to conduct or facilitate
specified unlawful activity, shall be fined under this title or imprisoned for not more than
20 years, or both.
Id. (emphasis added).
11
cleanse these “proceeds of specified unlawful activity” of their taint for
§ 1956(a)(1)(B)(i) purposes.
Magluta’s third argument on this issue is that by the time he wrote the
checks to his lawyers the money had already been laundered; therefore, he says, his
acts amounted to mere spending for his personal benefit, not laundering in
violation of § 1956(a)(1)(B)(i). We have stated that payments for personal benefit
out of previously laundered proceeds do not themselves constitute money
laundering unless they are designed to conceal the nature or source of the money.
See Majors, 196 F.3d at 1213 (internal quotation and marks omitted).
We have set out several factors that are helpful in determining whether a
transaction was designed to conceal as required by § 1956(a)(1)(B)(i). “Evidence
that may be considered when determining whether a transaction was designed to
conceal includes, among others, statements by a defendant probative [o]f intent to
conceal; unusual secrecy surround[ing] the transaction; structuring the transaction
in a way to avoid attention; depositing illegal profits in the bank account of a
legitimate business; highly irregular features of the transaction; using third parties
to conceal the real owner; a series of unusual financial moves cumulating in the
transaction; or expert testimony on practices of criminals.” Id. at 1213 n.18
(emphasis omitted).
12
Magluta paid his lawyers with checks written on an Israeli bank account
held in a fictitious name. The several transfers of cash between Magluta
associates, the movement of the cash from Miami to New York to Israel, and the
use of a foreign account held in a false name are “a series of unusual financial
moves” which culminated in Magluta writing the checks. See id. There thus was
an air of “unusual secrecy surround[ing] the transaction[s].” See id. Magluta’s use
of his associates, as well as the fictitious “Leonard Friedman,” demonstrate his use
of “third parties to conceal the real owner” of the money in the foreign account.
See id. The final transaction itself—Magluta writing checks on a foreign account
held in a false name—is “highly irregular.” See id.
In sum, Magluta went to great pains to conceal the fact that he was using
drug proceeds to pay his lawyers. His doing so meets the definition of money
laundering for purposes of § 1956(a)(1)(B)(i), even if the final transfer of the
laundered proceeds was also for Magluta’s personal benefit. See Majors, 196 F.3d
at 1213 & n.18; cf. United States v. Abbell, 271 F.3d 1286, 1298 (11th Cir. 2001)
(“We believe it is enough for [§ 1956(a)(1)(B)(i)] that [the] Defendants 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.”). Magluta’s convictions on the substantive money
13
laundering counts stand.
III.
Magluta’s third major contention is that his conviction for obstruction of
justice through juror bribery must be reversed because the district court erred in
admitting two out-of-court statements made by Miguel Moya, who had been the
jury foreman in the 1996 trial. The government used those statements to prove that
Magluta had bribed Moya to produce an acquittal in that earlier case.
The first of the two statements in question was made by Moya to undercover
FBI Agent Joaquin Garcia in a recorded conversation that took place in July 1998.
In that conversation Garcia told Moya that he had been sent by Magluta (and
Magluta’s co-defendant in the 1996 trial, Augusto Falcon) to ensure that Moya
kept quiet about the bribe he had received two-and-a-half years earlier. After
prodding by Garcia, Moya acknowledged having accepted that bribe from Magluta
and his co-defendant Falcon.4 Moya assured Garcia that only his wife and parents
knew he had received the bribe money, and he promised Garcia that he would not
cooperate with authorities.
The court admitted Moya’s statements as non-hearsay statements of a co-
4
We have no way of knowing exactly how large the bribe was that Moya received. The
record does show, however, that although Moya and his family were of modest means, they
made $330,000 in cash expenditures and bank deposits in the twenty-seven months following the
trial.
14
conspirator under Fed. R. Evid. 801(d)(2)(E). “We review the district court’s
evidentiary rulings for an abuse of discretion,” United States v. Hasner, 340 F.3d
1261, 1274 (11th Cir. 2003), and we may overturn findings of fact only if clearly
erroneous, United States v. Griggs, 735 F.2d 1318, 1325 (11th Cir. 1984).
“Under Rule 801(d)(2)(E), statements of co-conspirators made during the
course and in furtherance of the conspiracy are not hearsay. For evidence to be
admissible under Rule 801(d)(2)(E), the government must prove by a
preponderance of the evidence these things: (1) a conspiracy existed; (2) the
conspiracy included the declarant and the defendant against whom the statement is
offered; and (3) the statement was made during the course and in furtherance of the
conspiracy. In determining the admissibility of co-conspirator statements, the trial
court may consider both the co-conspirator’s statements and independent external
evidence.” Hasner, 340 F.3d at 1274. In ruling on the admissibility of the
conversation between Moya and Agent Garcia under Rule 801(d)(2)(E), the district
court found that:
[T]his conspiracy continued to exist up through July of 1998, when this
statement was made. The Court does find that although Mr. Moya’s
participation was in just one component, he was a participant in the overall
scheme. He would not have known all of the ins and outs of the conspiracy
that’s charged in this Indictment, but . . . in agreeing to . . . accept[] the bribe
for convincing the other jurors to return a judgment of acquittal, he is still a
member of the conspiracy.
15
He sat and listened to the evidence in the case . . . that Mr. Falcon and
Mr. Magluta were participants in a major drug trafficking organization; that
the monies that were connected with them were proceeds of a major drug
trafficking organization . . . . I find that the government has proved by a
preponderance of the evidence that . . . [Moya] knew that the [bribe] money
was from a specified unlawful activity and, therefore, he took actions to
cover up his sudden found wealth in creating all of the various gifts of funds
to his relatives and near relatives and friends . . . . So his participation and
his actions continue to evidence efforts to cover up his criminal acts. The
law does find that such conduct of covering up the acts are part and parcel of
the conspiracy.
Magluta argues that if he and Moya conspired to obstruct justice through
juror bribery, the central purpose of that conspiracy ended, at the latest, once the
verdict in the earlier case was rendered in February 1996. As a result, according to
Magluta, Moya’s conversation with the undercover FBI agent, which took place in
July 1998, was not made during the course of the juror bribery conspiracy but
instead came well after the conspiracy had ended.
In Grunewald v. United States, 353 U.S. 391, 77 S. Ct. 963 (1957), the
Supreme Court held that: “[A]fter the central criminal purposes of a conspiracy
have been attained, a subsidiary conspiracy to conceal may not be implied from
circumstantial evidence showing merely that the conspiracy was kept a secret and
that the conspirators took care to cover up their crime in order to escape detection
and punishment.” 353 U.S. at 401–02, 77 S. Ct. at 972. The Court also recognized
that “a vital distinction must be made between acts of concealment done in
16
furtherance of the main criminal objectives of the conspiracy, and acts of
concealment done after these central objectives have been attained, for the purpose
only of covering up after the crime.” Id. at 405, 77 S. Ct. at 974.
The central purpose of the juror bribery conspiracy between Magluta and
Moya was to secure an acquittal for Magluta in return for cash. Once the verdict
was rendered, that central purpose was completed. Although it was mutually
understood that Magluta and Moya would conceal the bribe, in the Supreme
Court’s words, those “[a]cts of covering up, even though done in the context of a
mutually understood need for secrecy, cannot themselves constitute proof that
concealment of the crime after its commission was part of the initial agreement
among the conspirators.” Id. at 402, 77 S. Ct. at 972. In light of Grunewald, we
cannot infer that a subsidiary conspiracy to conceal the bribe Magluta had given
Moya existed for almost two-and-a-half-years after the bribery agreement had been
made and carried out. See id. at 401–02, 77 S. Ct. at 972. As a result, Moya’s
statement to Agent Garcia was not in furtherance of the conspiracy to obstruct
justice through juror bribery.
The government argues, and the district court’s findings indicate it believed,
that Moya’s statements are admissible under Rule 801(d)(2)(E) on the ground that
it was in furtherance of another conspiracy. Under this theory, there was a
17
conspiracy between Magluta and Moya to launder drug proceeds in violation of
§ 1956(a)(1)(B)(i). That conspiracy would have begun when Moya accepted the
bribe from Magluta, which was paid out of illegal drug proceeds, and it was still
ongoing at the time Moya assured Agent Garcia that he would keep quiet about it.5
We will assume for the moment that Moya’s acceptance of the bribe made
him and Magluta participants in a conspiracy to launder drug proceeds under 18
U.S.C. § 1956(a)(1)(B)(i). Cf. Abbell, 271 F.3d at 1298 (affirming the defendant
lawyers’ convictions for violating § 1956(a)(1)(B)(i) where the lawyers gave
money to certain inmates while concealing that the money was being paid at the
direction of and on behalf of the lawyers’ client). Even with that assumption the
argument fails under Grunewald, because Moya’s statements to Agent Garcia were
not made during the course of and in furtherance of that money laundering
conspiracy.
As we mentioned before, Moya’s statements to Agent Garcia occurred two-
and-a-half years after Moya accepted the bribe. Assuming Magluta’s payment of
the bribe to Moya constituted a conspiracy between them to launder drug proceeds
5
That this conspiracy was not charged in the indictment in this case does not matter.
United States v. Salisbury, 662 F.2d 738, 740 (11th Cir. 1981) (“Statements of a coconspirator
may be introduced into evidence even though the government has not charged [the
coconspirator] with conspiracy as long as the existence of the conspiracy has been properly
established.”).
18
in the amount of the bribe, the evidence does not support an inference that the
initial conspiracy included a “subsidiary conspiracy to conceal” which was
ongoing so long after the bribe—the single act of money laundering—had
occurred. See Grunewald, 353 U.S. at 401–02, 77 S. Ct. at 972.
Moya’s statements to Agent Garcia do constitute an attempt to keep any
initial conspiracy secret, but that attempt is not enough by itself to establish the
coverup two-and-a-half years later was part of the initial agreement between
Magluta and Moya. As the Supreme Court explained: “[E]very conspiracy is by its
very nature secret; a case can hardly be supposed where men concert together for
crime and advertise their purpose to the world. And again, every conspiracy will
inevitably be followed by actions taken to cover the conspirators’ traces.
Sanctioning the government’s theory would for all practical purposes wipe out the
statute of limitations in conspiracy cases, as well as extend indefinitely the time
within which hearsay declarations will bind co-conspirators.” Id. at 402, 77 S. Ct.
at 972.
That Moya tried to hide the source of the funds he used to make purchases
for himself and his family does not bring those acts into any earlier drug
laundering conspiracy between Magluta and Moya. Whatever crimes Moya may
have committed by concealing the source of the funds that he used to pay for his
19
purchases, there is no evidence to suggest that making them was part of the initial
conspiracy between him and Magluta. Otherwise, the government could have
charged Magluta with money laundering for every purchase Moya made with the
bribe proceeds; that would not be a reasonable interpretation of the conspiracy and
money laundering laws. Because the later transactions that Moya engaged in were
not part of the “initial agreement” between him and Magluta, see Grunewald, 353
U.S. at 402, 77 S. Ct. at 972, they do not extend the life of the money laundering
conspiracy that began in January of 1996 to include Moya’s July 1998 statements
to Agent Garcia. As a result, the district court should not have admitted Moya’s
statements to Agent Garcia pursuant to Rule 801(d)(2)(E).
The government argues that, even if the district court erred by admitting
Moya’s statements to Agent Garcia, the error was harmless because it presented
other evidence to support the obstruction of justice through juror bribery
conviction. As we have previously made clear, a “non-constitutional error is
harmless if, viewing the proceedings in their entirety, a court determines that the
error did not affect the verdict, ‘or had but very slight effect.’” United States v.
Hornaday, 392 F.3d 1306, 1315 (11th Cir. 2004) (citations omitted) (quoting
Kotteakos v. United States, 328 U.S. 750, 762, 764, 66 S. Ct. 1239, 1246, 1248
(1946)). Furthermore, “[i]f one can say ‘with fair assurance . . . that the judgment
20
was not substantially swayed by the error,’ the judgment is due to be affirmed even
though there was error.” Id. at 1315–16 (quoting Kotteakos, 328 U.S. at 764, 66 S.
Ct. at 1248). The government has not met this standard.
Moya’s statements to Agent Garcia constituted the evidence directly tying
Magluta to the bribe. Even if we were to consider Moya’s statement to his then-
wife (the other statement that Magluta asserts was erroneously introduced), we are
left only with the conclusion that Moya was bribed, not that it was Magluta who
paid the bribe.6 Although common sense would suggest that Magluta was
involved, Magluta was being tried with a co-defendant who had as much reason to
bribe jurors as Magluta did. With no other direct evidence linking Magluta to the
bribe, we “cannot say, with fair assurance, . . . that the judgment was not
substantially swayed by the error.” See Kotteakos, 328 U.S. at 765, 66 S. Ct. at
1248. The error, therefore, was not harmless. For these reasons, Magluta’s
conviction for obstruction of justice through juror bribery is due to be reversed.7
6
Moya’s ex-wife testified that on January 31, 1996 (which was during Magluta’s
previous trial) at approximately six o’clock in the evening Moya received a telephone call at
home from a man named Eddy. In response to the call Moya left the house, and two to three
hours later came back carrying a brown paper bag. Ms. Moya asked him what was in it. He
showed her the contents of the bag: bundles of cash. She testified that when she asked Moya
what the money was for, “[h]e said it was given to him in order to persuade the jury in the trial
that he was on.” According to Ms. Moya, when she asked her husband why he had taken the
bribe, Moya told her that “[h]e had to do it,” and “he couldn’t get out of what he was doing.”
She did not testify that Magluta was mentioned.
7
In light of this conclusion, we have no reason to address the issue Magluta has raised
involving the admission of the statements Moya made to his wife at the time.
21
IV.
Magluta’s fourth contention is that his conviction on the obstruction of
justice through juror bribery count must be reversed for an additional reason. He
argues that the district court erred when it failed to instruct the jurors in this case
not to convict on this count unless they unanimously agreed on which juror or
jurors Magluta had bribed in the earlier case. Because we have already decided to
reverse the conviction on this count for other reasons, we need not address this
contention any further.
V.
Magluta’s fifth contention is that the district court erred by denying his
motion to suppress certain documents seized on October 15, 1996. Those
documents were found inside a box that was seized without a warrant from the
trunk of a car driven by Marilyn Bonachea, an associate of Magluta. Magluta
argues that the officers lacked probable cause to search the box of documents and,
as a result, his Fourth Amendment rights were violated.
On October 15, 1996, which was after Magluta was acquitted in the first
trial, Guy Lewis, then an Assistant United States Attorney in Miami, received an
anonymous telephone call. The caller advised Lewis that later that morning
Bonachea would be transporting certain documents from her home to the office of
22
Magluta’s lawyer. Lewis knew Bonachea was a close associate of Magluta. The
caller said that the documents Bonachea would be transporting contained
information relating to the ongoing Magluta investigation, including information
about how drug money had been used to bribe individuals to give false testimony
in the earlier trial. The caller said that Bonachea would be leaving her home in
south Dade County at a specified time and gave the address. The caller also told
Lewis that Bonachea would be driving a rental car, which the caller described, and
that Bonachea commonly smoked marijuana when driving.
This was the second call AUSA Lewis had received from this anonymous
caller. The previous call had provided Lewis with an address for Bonachea’s son
at Bonachea’s home, the same address from which the caller said that Bonachea
would be leaving later that day.
Immediately after receiving the second call, AUSA Lewis contacted Special
Agent Jane Anglestead of the Drug Enforcement Agency and Sergeant Robert
Fielder of the Miami Police Department, both of whom were investigating Magluta
and knew of his intimate relationship with Bonachea. Anglestead had been
involved in prosecutions of Magluta since 1991. She knew from Bonachea’s
testimony in those cases that she had been associated with Magluta for a long time.
Anglestead was also aware that at some time in the 1980s Bonachea had received
23
approximately $585,000 from Magluta for the purchase of a house in South
Florida, a house that was located adjacent to Magluta’s property. Anglestead knew
that two of the checks used for the house had come from a Bahamian account that
Magluta maintained under another name. Furthermore, Anglestead was aware that
Bonachea had frequently visited Magluta while he was incarcerated in a federal
detention center awaiting trial. Based on this knowledge, Anglestead surmised that
Bonachea might very well have the kind of documents described by the
anonymous caller.
Shortly after being told by AUSA Lewis of the anonymous call earlier in the
day, Agent Anglestead went to Bonachea’s residence. The residence was at the
address the caller had said it was. There Anglestead saw a rental vehicle matching
the caller’s description, and watched Bonachea leave the house within twenty
minutes of the time that the caller had predicted. Florida Highway Patrol officers,
who had been contacted by Sergeant Fielder, followed Bonachea.
After determining that Bonachea was speeding, the officers pulled her over.
They confirmed with her that the car was a rental. One trooper noticed what
appeared to be marijuana seeds in the ashtray. As a result, he called in a drug dog
who, after examining the car, alerted to the console area where two marijuana
cigarettes were then found. Bonachea was arrested and the trooper inventoried the
24
vehicle, noting the parcels of paperwork in the trunk. Sergeant Fielder then arrived
at the scene and informed Bonachea that he was going to inspect the vehicle.
Bonachea objected, claiming that there were documents in the trunk stamped
“attorney-client privilege.” Fielder proceeded to open the trunk and found a
cardboard box containing, among other things, what he recognized as drug ledgers.
The magistrate judge’s report recommended that Magluta lacked standing to
object to any alleged violation of the Fourth Amendment and that, in any event,
law enforcement had probable cause to search the trunk. The district court, with
the exception of two factual details not relevant here, adopted the magistrate
judge’s factual findings and legal conclusions and denied Magluta’s motion to
suppress.
Magluta challenges both the district court’s decision that he lacked standing
and its decision that law enforcement had probable cause to search Bonachea’s
trunk. “[W]e apply a mixed standard of review to the district court’s denial of the
suppression motion, reviewing the court’s findings of fact for clear error and its
application of the law to those facts de novo.” United States v. Tinoco, 304 F.3d
1088, 1116 (11th Cir. 2002). Because we find that the district did not err in
determining that the law enforcement officers had probable cause to search the
contents of Bonachea’s car, we will assume, without deciding, that Magluta has
25
standing to allege a Fourth Amendment violation.
In most circumstances, for a search that is not based on consent to comply
with the Fourth Amendment, law enforcement must obtain a warrant supported by
probable cause. There are, however, exceptions. Under the automobile exception
to the warrant requirement, officers can search any container in an operational car
without a warrant as long as they have probable cause to believe that the container
holds evidence of a crime. California v. Acevedo, 500 U.S. 565, 579–80, 111 S.
Ct. 1982, 1991 (1991); United States v. Watts, 329 F.3d 1282, 1286 (11th Cir.
2003). Because there is no dispute that the car Bonachea was driving was
operational, our inquiry is limited to determining whether the officers had probable
cause to believe that the box in her car contained evidence of a crime. See Watts,
329 F.3d at 1286. “Probable cause for a search exists when under the totality of
the circumstances ‘there is a fair probability that contraband or evidence of a crime
will be found in a particular place.’” United States v. Goddard, 312 F.3d 1360,
1363 (11th Cir. 2002) (quoting Illinois v. Gates, 462 U.S. 213, 238, 103 S. Ct.
2317, 2332 (1983)).
Under the circumstances of this case, the anonymous tip received earlier in
the same day is entitled to substantial weight in the analysis of whether law
enforcement had probable cause to believe that the box in Bonachea’s trunk
26
contained evidence of criminal activity. See generally Gates, 462 U.S. at 237–39,
103 S. Ct. at 2332–33 (noting that anonymous tips are considered in the probable
cause determination). In addition to notifying law enforcement that Bonachea’s
car would be carrying documents evidencing drug activity, the caller provided the
correct location of Bonachea’s residence, an accurate description of the rental car
she would be driving, and predicted that Bonachea would depart within twenty
minutes of the time she actually did. The caller was also correct about Bonachea’s
smoking marijuana in the car. (A fact discovered after the car was lawfully stopped
for speeding.) All of this information from the caller was corroborated by law
enforcement officers before the box in the trunk of Bonachea’s car was searched.
See id. at 241, 103 S. Ct. at 2334 (“Our decisions applying the totality-of-the-
circumstances analysis . . . have consistently recognized the value of corroboration
of details of an informant’s tip by independent police work.”).
Furthermore, on a previous occasion, this same caller had provided AUSA
Lewis with the address where Bonachea’s son was staying. That was the same
address that Bonachea left from on October 15, 1996, as the caller had said she
would, and at about the time the caller had said. The law enforcement officers
were also aware of Bonachea’s intimate relationship with Magluta, that she knew
his organization, and that she often visited him in jail. From these facts, they
27
reasonably inferred that Bonachea was a person likely to be holding for Magluta
the kind of documents described by the anonymous caller. All of these pieces of
information bolster the caller’s credibility.
Based on the totality of the circumstances leading up the search, we
conclude that the district court did not err in holding that the law enforcement
officers had probable cause to believe that the box located in the trunk of
Bonachea’s rental car contained evidence of a crime.
VI.
The remainder of Magluta’s contentions attack his 205-year sentence.
Because we have already decided that Magluta’s conviction for obstruction of
justice through juror bribery must be reversed, on remand it will be necessary for
the district court to strike the 120-month sentence imposed for that count. Striking
that 120-month sentence will leave Magluta with a sentence of 195 years
imprisonment.
Magluta contends that this remaining portion of his sentence must be
vacated for other reasons. For one thing, he argues that the district court erred in
determining that the value of the drug money he had laundered was
$35,498,957.80, a determination that affected his total offense level. According to
Magluta, the jury’s special forfeiture verdict of $15 million should have been a cap
28
on the value of the funds that the district court could find were involved in the
money laundering scheme for purposes of calculating his specific offense
characteristics pursuant to U.S.S.G. § 2S1.1(b)(2) (2000). If Magluta is correct
about this, his total offense level should have been 41 instead of 43. See U.S.S.G.
§ 2S1.1(b) (2000).
Magluta casts this argument in collateral estoppel terms, saying that “[t]he
district court violated principles of collateral estoppel by refusing to accept the
jury’s special forfeiture verdict of $15 million as a cap on the ‘value of the funds’
laundered.” Appellant’s Initial Br. at 51. The court was collaterally estopped,
according to Magluta, because the jury’s forfeiture inquiry matches exactly the
§ 2S1.1(b)(2) inquiry the judge was to make at sentencing, and the same
preponderance of the evidence standard of proof was applicable to the jury and the
judge.
We need not decide if the district court erred in calculating Magluta’s
offense level using an amount greater than the $15 million figure that the jury
found in its special forfeiture verdict, because we would not vacate the sentence
even if the court did. Having reviewed the record, we are convinced that any error
of that nature was harmless. See United States v. Hersh, 297 F.3d 1233, 1248
(11th Cir. 2002) (sentencing errors are reviewed for harmless error). During the
29
course of the sentencing hearing, the district court stated: “Should the Eleventh
Circuit determine that the Court’s reasoning [in arriving at the guidelines range] is
in error, I would employ an upward departure to impose a sentence outside of the
Guideline range under the applicable law to reach the same result. And that is a
departure to offense level 43 requiring a life sentence.” Sentencing Tr. at 691. In
other words, the district court said that it would get to an offense level of 43 one
way or the other.
The district court recognized that it “must impose a sentence within the
Sentencing Guidelines unless [it] determines that there exists an aggravating or
mitigating circumstance of a kind or to a degree not adequately taken into
consideration by the Sentencing Commission in formulating the Guidelines.”
Sentencing Tr. at 692. After discussing the permissible grounds for upward
departures, the district court concluded that, if necessary to get to an offense level
of 43, an upward departure would be warranted in this case based on “the anomaly
created by the obstruction” resulting in Magluta’s 1996 acquittal, as well as other
non-specified factors that were present in this case. Apparently, the anomaly the
district court was referring to had to do with the fact that, through his illegal
conduct, Magluta escaped the punishment he deserved for the criminal conduct he
was tried for in his 1996 trial. In summing up, the district court stated that “the
30
bribery of jurors, the bribery of witnesses, so goes to the heart of our criminal
justice system which is the foundation of our democracy that the egregious nature
of the offense here could only be recognized by an upward departure, and that the
present Sentencing Guidelines do not take it into consideration, and that for those
reasons the Court would upward depart.”8 Sentencing Tr. at 694–95.
If the district court had upwardly departed, we would review that decision
only for abuse of discretion. United States v. Melvin, 187 F.3d 1316, 1320 (11th
Cir. 1999). Furthermore, “[b]ecause the district courts see so many Guidelines
cases, district courts have an institutional advantage over appellate courts in
determining whether a case is outside the heartland, and thus their decisions are
entitled to substantial deference.” Id. (citing Koon v. United States, 518 U.S. 81,
98, 116 S. Ct. 2035, 2046 (1996)). With that in mind, we cannot say that the
district court would have abused its discretion in upwardly departing. See
8
Our reversal of Magluta’s conviction for obstruction by bribing a juror does not
undermine the factual premise of the district court’s preemptive departure decision. Our reversal
was based on our conclusion that the juror’s out-of-court statements to the undercover agent
were hearsay; that is, the statements did not fit within Fed. R. Evid. 801(d)(2)(E). However, it is
well-established that, in sentencing, a district court can consider hearsay even if it was not
admissible in determining guilt, so long as there are sufficient indicia of reliability. United
States v. Wilson, 183 F.3d 1291, 1301 (11th Cir. 1999) (“A court may consider any information
(including hearsay), regardless of its admissibility at trial, in determining whether factors exist
that would enhance a defendant’s sentence, provided that the information is sufficiently
reliable.”); U.S.S.G. § 6A1.3(a) (“[T]he court may consider relevant information without regard
to its admissibility under the rules of evidence applicable at trial, provided that the information
has sufficient indicia of reliability to support its probable accuracy.”); see also 18 U.S.C.A.
§ 3661. The tape-recorded statements of the juror to the undercover agent clearly have sufficient
indicia of reliability for this purpose.
31
U.S.S.G. § 5K2.0 (describing permissible grounds for upward departures). As a
result, any two-point error in Magluta’s offense level was harmless.
Magluta also contends that the district court erred in calculating his criminal
history score. Specifically, he asserts that the district court impermissibly
considered his previous convictions as “prior sentences” under U.S.S.G.
§ 4A1.1(a). This is error, Magluta says, because his previous convictions were all
“part of the instant offense” under § 4A1.2(a)(1), even though they occurred before
this trial began. If Magluta were correct about this, his criminal history score was
miscalculated. We need not decide whether this argument has any merit, for much
the same reason we did not have to decide whether Magluta’s argument about his
offense level had any merit. The district court gave a valid basis for an upward
departure to an offense level of 43 and that departure would not have been an
abuse of discretion. Because an offense level of 43 mandates a life sentence
regardless of the criminal history category, U.S.S.G. ch. 5, pt. A, any error in the
calculation of Magluta’s criminal history score is harmless.
Magluta’s next assertion is that the district court erred by ordering each of
the sentences for his convictions to run consecutively pursuant to U.S.S.G.
§ 5G1.2(d). He concedes that this position is foreclosed by our decision in United
States v. Davis, 329 F.3d 1250 (11th Cir. 2003) (per curiam). That decision held
32
§ 5G1.2(d) requires that sentences run consecutively to the extent necessary to
reach the punishment range set by the guidelines. Id. at 1253–54. Magluta argues,
however, that Davis has been invalidated by United States v. Booker, 543 U.S.
___, 125 S. Ct. 738 (2005). It has not been. Booker invalidated neither § 5G1.2(d)
nor Davis. Instead, as one of our post-Booker decisions explained, Booker held
that “the Sixth Amendment right to trial by jury is violated where under a
mandatory guidelines system a sentence is increased because of an enhancement
based on facts found by the judge that were neither admitted by the defendant nor
found by the jury.” United States v. Rodriguez, 398 F.3d 1291, 1298 (11th Cir.)
(emphasis omitted), cert. denied, ___ S. Ct. ___, 2005 WL 483174 (June 20, 2005).
The Booker decision also established that it is “error for the district court to
sentence [a defendant] under a mandatory Guidelines scheme, even in the absence
of a Sixth Amendment enhancement violation.” United v. Shelton, 400 F.3d 1325,
1330–31 (11th Cir. 2005). To remedy the situation, the Court in Booker
effectively rendered the guidelines advisory. See Booker, 543 U.S. at ___, 125 S.
Ct. at 764. The Booker decision affected Davis only to the extent that all
guidelines decisions are now advisory. Davis’ holding as to the proper application
of § 5G1.2(d) remains correct and binding.
Magluta also makes the broader argument that he is entitled to resentencing
33
under Booker because he was sentenced under a mandatory guidelines system.
This Booker argument was raised for the first time in Magluta’s reply brief. As we
indicated in our previous order granting in relevant part the government’s motion
to strike the portions of Magluta’s reply brief raising this Booker argument, United
States v. Magluta, No. 03-10694 (11th Cir. Nov. 17, 2004), an appellant may not
raise an issue for the first time in a reply brief. See United States v. Vanorden, ___
F.3d ___, 2005 WL 1531151, *1 (11th Cir. June 30, 2005) (per curiam); United
States v. Dockery, 401 F.3d 1261, 1262–63 (11th Cir. 2005) (per curiam); United
States v. Ardley, 242 F.3d 989, 990 (11th Cir. 2001) (per curiam). As a result,
Magluta has abandoned this argument.
However, even if Magluta’s Booker argument had not been abandoned
because of his failure to raise it in his initial brief, he would still not be entitled to
resentencing. Having failed to raise that issue in the district court, our review
would be only for plain error. Rodriguez, 398 F.3d at 1298. As part of satisfying
the plain error test, a defendant “must establish a reasonable probability that if the
district court had considered the guidelines range it arrived at using extra-verdict
enhancements as merely advisory, instead of mandatory, and had taken into
account any otherwise unconsidered § 3553 factors, the court would have imposed
a lesser sentence than it did.” Id. at 1302. There is no evidence at all in the record
34
to suggest that the district court would have imposed a lesser sentence than it did
had it applied the guidelines in an advisory instead of mandatory manner. To the
contrary, the court made it abundantly clear that it would have given Magluta a life
sentence regardless.
VII.
For the foregoing reasons, all of Magluta’s convictions are AFFIRMED,
except for the one for obstruction of justice through juror bribery, count 8, which is
REVERSED. Magluta’s sentence is VACATED, and the case is REMANDED.
If the government elects to dismiss count 8 instead of retry Magluta on that
charge, or if a retrial on that count occurs and he is acquitted, the district court
shall, at its discretion, either reimpose Magluta’s sentence but with a reduction of
120 months as a result of there being no conviction for count 8, or the court may
resentence Magluta on all the other counts for which he remains convicted. If the
government elects to retry Magluta on count 8 and he is re-convicted of that
charge, the district court shall then re-sentence him on all the counts.
AFFIRMED in part, REVERSED in part, VACATED in part, and
REMANDED.
35