[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
APRIL 19, 2007
No. 05-14475
THOMAS K. KAHN
CLERK
D. C. Docket No. 03-00493 CR-17-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
EFRAIN GARCIA-JAIMES,
a.k.a. Peluchin,
ARMANDO BARAGAN RAMIREZ, et al.,
Defendants-Appellants.
_________________________
No. 05-14481
_________________________
D.C. Docket No. 03-00493 CR-9-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DANTE RODRIGUEZ-SOTELO,
Defendant-Appellant,
_________________
No. 05-14482
__________________
D. C. Docket No. 03-00493-CR-18-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
LEOPOLDO VALENCIA CERVANTES,
a.k.a. Polo,
Defendant-Appellant,
__________________
No. 05-14483
__________________
D. C. Docket No. 03-00493-CR-8-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
PATRICIO VARGAS,
Defendant-Appellant,
2
_____________________
No. 05-14669
______________________
D. C. Docket No. 03-00493-CR-11-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JAIME GONZALES MEJIA,
JOSE ANTONIO VALDOVINOS-BUSTO,
Defendants-Appellants,
___________________
No. 05-17251
___________________
D.C. Docket No. 03-00493 CR-3-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
LEONARDO NUNEZ-VIRRAIZABAL,
Defendant-Appellant,
__________________
No. 06-10121
__________________
3
D.C. Docket No. 03-00493 CR-26-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
LUIS EDUARDO PEREZ,
Defendant-Appellant.
Appeals from the United States District Court
for the Northern District of Georgia
(April 19, 2007)
Before DUBINA and COX, Circuit Judges, and SCHLESINGER,* District Judge.
DUBINA, Circuit Judge:
This is a huge, complex, multi-defendant criminal drug case in which the
district court judge presided over three separate trials in the United States District
Court for the Northern District of Georgia. The original indictment charged 30
individuals with multiple drug trafficking, firearm, and money laundering
offenses. Seventeen of those individuals pled guilty. Of the remaining 13
defendants, ten proceeded to trial and three entered guilty pleas. The
__________________
*Honorable Harvey E. Schlesinger, United States District Judge for the Middle District of
Florida, sitting by designation.
4
cases were consolidated on appeal.
I. BACKGROUND
A. Procedural History
The first jury trial began on January 5, 2005. Defendants Rigoberto Garcia
Jaimes (“Rigoberto”), Efrain Garcia Jaimes (“Efrain”), Roberto Moreno Gonzalez
(“Roberto”), Armando Baragan Ramirez (“Armando”), Alejandro Hernandez
Hernandez (“Alejandro”), Sabas Jaimes Enriques (“Sabas”), and Leonardo Nunez
Virraizabal a/k/a Noel Chavez Moreno (“Leonardo”) were tried together. After a
three-week trial, the jury returned its verdicts finding Armando guilty on Counts
One (drug conspiracy), Six (possession of a firearm in furtherance of a drug
trafficking crime), and Twenty-Six (money laundering conspiracy); Roberto guilty
on Counts One (drug conspiracy), Two (possession of a firearm in furtherance of a
drug trafficking crime), and Twenty-Six (money laundering conspiracy);
Rigoberto guilty on Counts One (drug conspiracy), Three (possession of a firearm
in furtherance of a drug trafficking crime), Four (alien in possession of a firearm),
and Twenty-Six (money laundering conspiracy); Efrain guilty on Counts One
(drug conspiracy), Four (alien in possession of a firearm), and Twenty-Six (money
laundering conspiracy); Alejandro guilty on Counts One (drug conspiracy) and
Twenty-Six (money laundering conspiracy); Sabas guilty on Counts One (drug
5
conspiracy), Five (possession with intent to distribute cocaine), and Twenty-Six
(money laundering conspiracy); and Leonardo guilty on Counts One (drug
conspiracy) and Twenty-Six (money laundering conspiracy).
On February 1, 2005, defendant Luis Eduardo Perez (“Luis”) proceeded to
jury trial, and on February 8, the jury found him guilty on Count One (drug
conspiracy).
On March 9, 2005, defendants Jaime Gonzales Mejia (“Jaime”) and Jose
Valdovinos Busto (“Jose”) proceeded to jury trial. On March 22, the jury found
Jaime guilty on Counts One (drug conspiracy), Nine (possession of a firearm in
furtherance of a drug trafficking crime), and Ten (alien in possession of a firearm)
and Jose guilty on Counts One (drug conspiracy) and Twenty-Six (money
laundering conspiracy).
Defendants Leopoldo Valencia Cervantes (“Leopoldo”), Patricio Vargas
Jiminez (“Patricio”), and Dante Rodriguez Sotelo (“Dante”) each entered guilty
pleas. Leopoldo pled guilty to Counts One (drug conspiracy) and Twenty-Six
(money laundering conspiracy). Patricio pled guilty to Counts One (drug
conspiracy), Eighteen (possession of a firearm in furtherance of a drug trafficking
crime), Twenty (alien in possession of a firearm), and Twenty-Six (money
laundering conspiracy). Dante pled guilty to Counts One (drug conspiracy),
6
Seventeen (possession of a firearm in furtherance of a drug trafficking crime),
Nineteen (alien in possession of a firearm), and Twenty-Six (money laundering
conspiracy).
After lengthy sentencing hearings, the defendants received the following
sentences:
Rigoberto- 420 months imprisonment
Efrain- 350 months imprisonment
Alejandro- 292 months imprisonment
Roberto- 480 months imprisonment
Patricio- 240 months imprisonment
Dante- 220 months imprisonment
Jaime- 270 months imprisonment
Armando- 295 months imprisonment
Leopoldo- 190 months imprisonment
Sabas- 300 months imprisonment
Jose- 280 months imprisonment
Leonardo- 290 months imprisonment
Luis- 135 months imprisonment
The defendants then perfected their appeals. All of the defendants are
incarcerated.
B. Facts
In 2002, the Drug Enforcement Administration (“DEA”) directed agents in
Atlanta, Georgia, and McAllen, Texas, to investigate a Mexican drug trafficking
organization that was importing cocaine, marijuana, and methamphetamine into
7
the United States for distribution in the Atlanta area. The investigation included
surveillance of various members of the organization, as well as Title III wiretaps
that resulted in numerous intercepted telephone calls among the organization
members. By the time of trial, the authorities had intercepted over 30,000
telephone calls by way of wiretap. These intercepted telephone calls confirmed
that the members of the organization were engaged in the possession and
distribution of cocaine, marijuana, and methamphetamine. The intercepted calls
also confirmed that the members of the organization were collecting money from
the sale of the drugs to send to Mexico. The drug proceeds also paid the operating
expenses of the organization in the United States, including mortgages and rent for
residences and stash houses, purchase of vehicles and firearms for use by the
organization members, and purchase of tractor-trailers and cover load cars and
trucks to transport the drugs and money.
Roberto was the leader of the drug organization. Rigoberto worked for
Roberto supervising the drug distribution and money collection for the Atlanta
area. Ramon Alvarez Sanchez (“Ramon”) and his brother Antonio Alvarez
(“Antonio”) had their own source of marijuana in Mexico, but they purchased
cocaine from Roberto, either directly or through Rigoberto. Ramon operated his
own organization distributing cocaine and marijuana in Atlanta and other cities.
8
Through use of his trucking company, Ramon arranged for transportation of drugs
for Roberto and Rigoberto, as well as for himself. Luis worked for Ramon and
drove the trucks that transported drugs from Texas to Atlanta by using cover loads
of either cabbages or watermelons.
Rigoberto supervised Efrain and Sabas, and reported back to Roberto.
Efrain and Sabas delivered drugs and collected money for Rigoberto. As part of
his duties, Rigoberto also obtained and maintained stash houses located in the
Atlanta area at Canberra Court, Ringtail Drive, Robin Hill Drive, Waterbrook
Terrace, Murdock Court, and Shenta Oak Drive. The stash house at Canberra
Court was Sabas’s residence, but he later moved to the Waterbrook Terrace house.
Alejandro, Armando, and Leopoldo manned the stash house located on Ringtail
Drive. Jaime manned the stash house located on Robin Hill Drive.
Marcos Ibarra Nunez, a/k/a Marco Antonio Sotelo Ibarra, a/k/a Marco
Pelaez Sotelo (“Marcos”) worked for Rigoberto as a supervisor, and he too
obtained and maintained residences and stash houses in the Atlanta area, including
stash houses located on Woodstock Drive and Oak Vista Way.
Leonardo, Roberto’s cousin, manned the Woodstock Drive stash house
along with Eliodoro Moreno Contreras (“Eliodoro”), and the lease for this house
was in Leonardo’s name. Dante, Patricio, Jose, and Gonzalo Vidales Cisneros
9
(“Gonzalo”), a cooperating co-conspirator, manned the Oak Vista Way stash
house.
Prior to trial, the defendants filed motions to suppress evidence. The first
motion dealt with the suppression of consent searches of two addresses to which
Leonardo was connected: (1) 3000 Briarcliff Road and (2) 3078 Clairmont Road.
A magistrate judge entered a report recommending the denial of this motion to
suppress after finding that there was a consent to search for each apartment. The
district court overruled Leonardo’s objections and adopted the magistrate judge’s
recommendation.
All defendants filed motions to suppress the fruits of court-authorized
electronic surveillance based upon an alleged lack of probable cause. Several
defendants also argued that the government improperly sealed the recordings in
violation of 18 U.S.C. § 2518(8)(a). They alleged that the government used a
recording device that actually recorded the intercepted communications on a
computer’s hard disk and then the government made a copy of the information
contained on the hard disk. It was this copy, rather than the hard disk, that was
sealed.
A magistrate judge entered a report recommending denial of these motions.
The magistrate judge found that the system used by the government to record the
10
intercepted calls converts the incoming analog signals into digital data recorded on
the computer hard drive, and within seconds, the contents of the calls are
automatically written onto a “magneto optical disk” (“MOD”). The magistrate
judge further found that the contents of the calls cannot be altered and are not
degraded during the transfer to the MOD; that the MOD should be considered a
duplicate of the original; and that sealing the MOD satisfies the requirements of
the wiretap statute, which does not require sealing original recordings. The
district court adopted the magistrate judge’s report and further determined that,
because there is no possibility of alteration, the MOD should be considered a
duplicate of the original. Moreover, the district court held that the wiretap statute
does not require the sealing of original recordings. Thus, the district court ruled
that sealing the MOD satisfied the sealing requirements of the statute, and,
accordingly, the court adopted the magistrate judge’s recommendation and denied
the motions to suppress.
First Trial
The main witness against Rigoberto, Efrain, Roberto, Armando, Alejandro,
Sabas, and Leonardo was DEA Special Agent Robert Murphy (“Agent Murphy”),
who was qualified as an expert based on his training on, and experience with, drug
trafficking methodologies of Mexican based organizations, particularly in the
11
areas of drug identification, interpretation of coded conversations, drug pricing,
and transportation techniques. Agent Murphy testified that this organization
imported the drugs from Mexico and shipped the proceeds back to Mexico. He
further testified that those in the command and control of the organization are in
Mexico. Salvador Carrillo Sanchez (“Salvador”), a cooperating co-conspirator,
also testified that the drugs involved in this conspiracy came from Mexico. Both
Salvador and Agent Murphy testified that Roberto led the United States side of the
organization, that many of the drugs were transported from Mexico to McAllen,
Texas, and from McAllen to Atlanta, and that the members then transported the
drug proceeds, concealed in gas tanks on car hauler trailers, back to McAllen.
At trial, numerous intercepted telephone calls among the organization
members establishing the hierarchy and operations of the organization were played
for the jury, and Agent Murphy testified regarding the content of those telephone
calls. Agent Murphy and Special Agent Keith Cromer (“Agent Cromer”) testified
that, as a result of several of the intercepted telephone calls, DEA agents seized
money and/or drugs and executed search warrants at several locations associated
with Roberto. During the execution of the search warrants, agents seized
telephones that were used to call telephones that Roberto used or possessed, as
well as quantities of drugs, money and/or other items associated with the
12
distribution of drugs or the collection of drug proceeds, including packaging
material, money counters, and drug ledgers.
Agent Murphy also testified regarding the identification process of the
organization members. Susan Nunez, a wire monitor witness for the government,
testified that over the six months that she monitored telephones in this case, she
became familiar with the voices of the targets who were intercepted, including
their nicknames.
Second Trial
Luis testified at his trial that he was a legitimate truck driver and that he had
no knowledge that he was ever carrying marijuana in his trailer. Luis also testified
that he did not know that Ramon was a drug dealer. Nick Garcia, a co-conspirator,
testified against Luis. Additionally, Agent Murphy testified regarding several
intercepted calls between Ramon and Luis.
Third Trial
During Jaime and Jose’s trial, Agent Murphy, as well as Special Agent
Cromer, again testified as an expert in Mexican drug trafficking organizations.
Agent Murphy testified that in a Mexican drug trafficking organization, the people
who are allowed access inside a stash house have to be trusted members of the
organization. Agent Murphy further testified that in a Mexican drug trafficking
13
organization, firearms in a stash house are used to protect the drugs and money as
well as the individuals involved. Agent Cromer testified that alcohol and acetone
are used to reprocess methamphetamine into crystal methamphetamine (“ice”).
Agent Cromer further testified that methamphetamine is sold in pound quantities.
The agents also testified about the Robin Hill stash house and the items that were
seized from that house after execution of the search warrant.
After the conclusion of the third trial, where the jury found all defendants
guilty, the district court sentenced the defendants as previously noted.
II. ISSUES
(1) Whether the evidence was sufficient to support the defendants’
convictions.
(2) Whether the district court abused its discretion by admitting the
transcript of an intercepted telephone call or, alternatively, by refusing to sever
Armando or Alejandro.
(3) Whether the district court abused its discretion by permitting DEA
agents to testify as expert witnesses about the structure and organization of, and
the use of code words by, Mexican drug trafficking organizations.
(4) Whether the district court erred by admitting the wiretap evidence.
14
(5) Whether the district court erred by denying Roberto’s motions to
suppress the fruits of his arrest.
(6) Whether the district court’s jury instruction on money laundering was
erroneous.
(7) Whether the district court erred by denying Leonardo’s motion to
suppress the searches of two addresses connected to Leonardo.
(8) Whether the district court abused its discretion by excluding evidence of
a 25-year-old prior conviction of a government witness.
(9) Whether the district court abused its discretion by refusing to charge the
jury on coercion and multiple conspiracies.
(10) Whether the district court clearly erred in determining the drug quantity
attributable to Dante, Armando, and Jose.
(11) Whether the district court erred in determining Dante and Jose’s
offense levels pursuant to U.S.S.G. § 2S1.1, and whether the district court
impermissibly double-counted Dante and Jose’s relevant conduct.
(12) Whether the district court committed clear error by finding that the
defendants did not meet their burden of proving entitlement to a downward
adjustment for their role in the offenses.
15
(13) Whether the district court erred by finding that Dante was subject to the
ten-year mandatory minimum sentence set forth under 21 U.S.C. § 841(b)(1) based
on its determination of drug quantity by a preponderance of the evidence.
(14) Whether Dante and Jose’s sentences were unreasonable.
(15) Whether the district court committed clear error by finding that
Leopoldo was not entitled to safety-valve relief.
(16) Whether we should consider Leopoldo’s ineffective assistance of
counsel claims on direct appeal.
III. STANDARDS OF REVIEW
The sufficiency of the evidence supporting a criminal conviction is a
question of law and is reviewed de novo; however, we examine the evidence in the
light most favorable to the government and make all inferences and credibility
choices in the government’s favor. United States v. Silvestri, 409 F.3d 1311, 1327
(11th Cir.), cert. denied, 126 S. Ct. 772 (2005). The denial of a motion for
judgment of acquittal is reviewed de novo. United States v. Hernandez, 433 F.3d
1328, 1332 (11th Cir. 2005), cert. denied, 126 S. Ct. 1635 (2006). “When the
motion raises a challenge to the sufficiency of the evidence, we review the
sufficiency of the evidence de novo, drawing all reasonable inferences in the
government’s favor.” Id. (quotation and citation omitted).
16
A district court’s refusal to exclude evidence under Federal Rule of
Evidence 403 is reviewed for a “clear abuse of discretion.” United States v. Cross,
928 F.2d 1030, 1048 (11th Cir. 1991). The decision to deny a severance “is
committed to the sound discretion of the trial court and can only be overturned for
an abuse of such discretion.” Id. at 1037.
Evidentiary rulings, including whether to admit expert testimony, are
reviewed for an abuse of discretion. United States v. Garcia, 447 F.3d 1327, 1334
(11th Cir. 2006).
Ordinarily, a district court’s denial of a motion to suppress is reviewed
under a mixed standard. United States v. Gil, 204 F.3d 1347, 1350 (11th Cir.
2000). The court’s findings of fact are reviewed for clear error, and its application
of law to those facts is reviewed de novo. Id. However, where trial counsel did
not object to the magistrate judge’s report and recommendation within the required
time period, appellate review of the factual findings is for plain error only. United
States v. Hall, 716 F.2d 826, 828-29 (11th Cir. 1983).
Where a defendant does not object to a jury instruction at trial, it is
reviewed for plain error only. United States v. Prieto, 232 F.3d 816, 819 (11th
Cir. 2000).
17
A district court’s decision to exclude evidence of a prior conviction
pursuant to Federal Rule of Evidence 609 is reviewed for an abuse of discretion.
United States v. Pritchard, 973 F.2d 905, 908 (11th Cir. 1992).
A district court’s refusal to give a requested jury instruction is reviewed for
an abuse of discretion. United States v. Morales, 978 F.2d 650, 652 (11th Cir.
1992).
A district court’s determination of drug quantity to establish the applicable
base offense level under the Sentencing Guidelines is reviewed for clear error.
United States v. Simpson, 228 F.3d 1294, 1298 (11th Cir. 2000). “Booker does not
alter our review of the application of the Guidelines.” United States v. Crawford,
407 F.3d 1174, 1178 (11th Cir. 2005). “Post-Booker, we continue to review a
district court’s factual determination of the quantity of drugs properly attributable
to a defendant for clear error.” United States v. Smith, No. 05-10693, slip op. at 9
(11th Cir. Aug. 31, 2005). However, an issue raised for the first time on appeal
may be reviewed for plain error only. United States v. Rodriguez, 398 F.3d 1291,
1298 (11th Cir. 2005).
“In sentencing guidelines cases, we review for clear error a district court’s
factual findings and review de novo the district court’s application of law to those
facts.” United States v. Cover, 199 F.3d 1270, 1274 (11th Cir. 2000). Contentions
18
alleging impermissible double-counting are reviewed de novo. United States v.
Ramirez, 426 F.3d 1344, 1355 (11th Cir. 2005).
“[A] district court’s determination of a defendant’s role in the offense is a
finding of fact to be reviewed only for clear error.” United States v. De Varon,
175 F.3d 930, 937 (11th Cir. 1999).
“We review the sentence imposed by the district court for reasonableness.”
United States v. Talley, 431 F.3d 784, 785 (11th Cir. 2005).
We review for clear error the district court’s factual determination in
deciding whether or not to grant safety-valve relief under U.S.S.G. § 5C1.2.
United States v. Cruz, 106 F.3d 1553, 1557 (11th Cir. 1997).
We will not consider an ineffective assistance of counsel claim that is raised
for the first time on direct appeal where there has been an insufficient opportunity
to develop the record with regard to the merits of the claim. United States v.
Bender, 290 F.3d 1279, 1284 (11th Cir. 2002); United States v. McLean, 138 F.3d
1398, 1406 (11th Cir. 1998).
IV. DISCUSSION
After reviewing the record, reading the parties’ briefs and having the benefit
of oral argument, we affirm the defendants’ convictions and sentences, except for
Roberto’s gun conviction and sentence, which we vacate. We will address briefly
19
a few of the issues raised by the defendants. The remaining issues we affirm
without further discussion.
A. The money laundering count
Armando, Alejandro, Roberto, Leonardo, and Sabas challenge the
sufficiency of the evidence supporting their convictions on Count Twenty-Six, the
money laundering conspiracy charge. See 18 U.S.C. § 1956(a)(2)(B)(i)
(prohibiting a person from transporting or attempting to transport illicit funds,
from a place inside the United States to a place outside the United States, knowing
that such transportation is designed to conceal or disguise the nature, location,
source, ownership, or control of those proceeds). In conducting our review, we
are guided by the principle that the government “need not rebut all reasonable
hypotheses other than guilt.” United States v. Miranda, 425 F.3d 953, 959 (11th
Cir. 2005) (quoting United States v. Sellers, 871 F.2d 1019, 1021 (11th Cir.
1989)). “[W]e will not disturb a guilty verdict unless, given the evidence in the
record, no trier of fact could have found guilt beyond a reasonable doubt.”
Silvestri, 409 F.3d at 1327 (internal quotations and citation omitted).
As to the money laundering conspiracy count, the government needed to
prove that two or more individuals agreed to commit a crime and that the
defendants knowingly and willfully joined or participated in the conspiracy. See
20
Silvestri, 409 F.3d at 1328. In this count, the object of the conspiracy was
transporting or attempting to transport illegal proceeds outside the United States to
Mexico, knowing that such transportation was designed to conceal and disguise
the nature, location, source, and ownership of the proceeds. Thus, the government
did not need to prove that the defendants sent illegal proceeds to Mexico, or that
any illegal proceeds successfully made it to Mexico. Rather, the government
needed to prove only that the defendants were part of a conspiracy to send illegal
proceeds to Mexico.
The defendants challenge their convictions based on their assertion that the
government failed to present any evidence that any funds were ever actually
transported outside of the United States or that there was any attempt to do so.
Specifically, the defendants contend that the government, in an apparent
misunderstanding of what constitutes a violation of 18 U.S.C. § 1956(a)(2)(B)(i),
only established that drug money was hidden from the police inside cars loaded on
the car hauler destined for Mexico. They argue that simply hiding money to avoid
detection does not satisfy § 1956(a)(2)(B)(i). We disagree.
For the substantive offense of international money laundering, “the statute
requires only that [the defendant] knew his act of transporting the funds was
designed to disguise or conceal its nature, source, ownership, or control.” United
21
States v. Carr, 25 F.3d 1194, 1206 (3d Cir. 1994). Thus, the government must
prove that “the defendant knew that the funds were derived from an unlawful
activity” and “knew the transportation was undertaken to disguise or conceal the
money in some material fashion.” Id.; see also United States v. Cuellar, 478 F.3d
282 (5th Cir. 2007) (en banc) (considering a challenge to a conviction for
international money laundering and finding that the government successfully
proved that the transportation or attempted transportation of the funds, wrapped in
duct tape and hidden under the floorboard of the car, was designed in whole or in
part to conceal or disguise the nature, location, source, ownership, or control of
the proceeds).
The evidence in this case established that the organization secreted the drug
proceeds in car haulers to deliver the proceeds from the United States to Mexico.
The evidence also showed that the organization was using drug proceeds to
purchase the cars that were on the car haulers and using third parties to conceal the
real owners of the cars. See United States v. Johnson, 440 F.3d 1286, 1291 (11th
Cir. 2006) (noting that evidence of concealment under the money laundering
statute includes using third parties to conceal the real owner), petition for cert.
filed, (U.S. Dec. 11, 2006) (No. 06-9400). The government presented intercepted
phone calls between Roberto and Rigoberto wherein they discussed shipping one
22
million dollars from the United States to Mexico utilizing a car hauler. Another
intercepted phone call revealed that in July 2003, Roberto stated that he was in
Mexico with his brothers counting the money. Additionally, Agent Murphy
testified regarding an intercepted phone call during which Roberto and Rigoberto
were discussing the purchase of cars. Another agent testified that agents observed
Efrain and Jose Olazaran purchase a Chevy Lumina at a car lot and take it to the
car hauler. The government also presented another intercepted phone call in
which Roberto and an unidentified male discussed the purchase of a car, and
Roberto instructed him to put the car in his wife’s name.
We conclude that the evidence was sufficient for a jury to find that the
defendants entered into a transportation scheme utilizing car haulers to knowingly
transport, or attempt to transport, funds under a plan designed at least in part “to
conceal or disguise the nature, the location, the source, the ownership, or the
control of the proceeds.” 18 U.S.C. § 1956(a)(2)(B)(i). First, hiding the money
inside cars on car hauler trailers was an attempt to conceal the money’s association
with an illegal enterprise. Second, the defendants hid the money in the cars to
prevent the authorities from finding it. Third, the transportation plan allowed the
owner of the money to place it in the hands of a third party, which makes it
difficult to determine both the owner and the source of the money. Accordingly,
23
we affirm the defendants’ convictions for conspiracy to violate the money
laundering statute.
B. The gun count as to Roberto
Roberto challenges the sufficiency of the evidence to support his conviction
on Count Two, possession of a firearm in furtherance of a drug trafficking crime.
To support this conviction, the government had to prove that during and in relation
to the drug trafficking conspiracy, Roberto “used, carried, or possessed a firearm
in furtherance of that conspiracy.” United States v. Gunn, 369 F.3d 1229, 1234
(11th Cir. 2004). “Possession may be actual or constructive, joint or sole.” Id. In
order to establish constructive possession, “the government must show that the
defendant exercised ownership, dominion, or control over the firearm or the
[property] concealing the firearm.” Id.
A review of the record reveals that the government did not meet its burden
of proof. The government did not present any evidence that Roberto exercised
ownership, dominion, or control over any firearms during the drug trafficking
conspiracy. The evidence demonstrated that Roberto stayed in Texas or Mexico
during the conspiracy period and did not reside in a stash house in Atlanta. The
authorities seized weapons from the Atlanta stash houses. Thus, the government
did not present any evidence that Roberto was in a location where he exercised
24
control over any weapon. Accordingly, we vacate Roberto’s gun conviction and
remand Roberto’s case to the district court for further proceedings.
C. The motion to suppress the search of the property
Leonardo argues that the district court erred in denying his motion to
suppress the consent search of 3078 Clairmont Road. Leonardo does not claim
that the consent was not voluntary; rather, he asserts that the district court erred by
concluding that the individual who gave consent to search the residence had the
authority to consent. We disagree.
Consent to search may be provided by a third party who possesses common
authority over the premises. United States v. Matlock, 415 U.S. 164, 171, 94 S.
Ct. 988, 993 (1974). “‘Common authority’ rests ‘on mutual use of the property by
persons generally having joint access or control for most purposes.’” Illinois v.
Rodriguez, 497 U.S. 177, 181, 110 S. Ct. 2793, 2797 (1990) (citation omitted).
Moreover, even if the consenting party does not in fact have the requisite
relationship to the premises, if the officer has an objectively reasonable, though
mistaken, good-faith belief that the consent was a valid consent, there is no Fourth
Amendment violation. Rodriguez, 497 U.S. at 186, 110 S. Ct. at 2800; see also
United States v. Brazel, 102 F.3d 1120, 1148 (11th Cir. 1997).
25
The record demonstrates that during the investigation, authorities searched
several residences, including an apartment on Clairmont Road. When officers first
arrived at the Clairmont Road apartment, no one was there. The officers spoke
with the manager, who informed them that he had seen Silvia Castillo (“Castillo”)
move into the apartment. The officers obtained information that Castillo was at
another apartment on Buford Highway. When the officers located Castillo, she
told them that she lived at the Buford Highway apartment and rented the
Clairmont Road apartment for her nephew and either his girlfriend or wife.
Although Castillo denied living at the Clairmont Road apartment, she told the
officers that she routinely went there, even when no one else was there. She
agreed to allow the agents to enter and search the apartment and went with the
officers to conduct the search. Castillo stated that she was not threatened by the
officers in any manner. When the agents arrived at the apartment, they gained
entry by using either Castillo’s key or a key obtained from the manager. Castillo
remained present during the search in which agents seized over $40,000 in U.S.
currency, drug packaging materials, and what the officers believed to be a drug
ledger.
We conclude from the record that the district court properly denied
Leonardo’s motion to suppress. At the time of the search, the officers knew that
26
Castillo rented the apartment for her nephew and that the management had
observed Castillo moving into the apartment. Moreover, Castillo informed the
officers that she had access to the apartment at any time. Based on this
information, the officers had a reasonable, good-faith belief that Castillo had the
authority to consent to the search. See Rodriguez, 497 U.S. at 186, 110 S. Ct. at
2800. Accordingly, we affirm the district court’s order denying Leonardo’s
motion to suppress evidence seized as a result of the warrantless search of the
Clairmont Road apartment.
V. CONCLUSION
Based upon our review of the record, we find no merit to any of the
defendants’ challenges to their convictions and sentences, with the exception of
Roberto’s challenge to his gun conviction. Accordingly, we affirm all of the
defendants’ convictions and sentences but vacate Roberto’s gun conviction and
sentence and remand his case to the district court for further proceedings
consistent with this opinion.
AFFIRMED in part; VACATED and REMANDED in part.
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