[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
DECEMBER 17, 2001
______________________ THOMAS K. KAHN
CLERK
No. 00-13390
______________________
D.C. Docket No. 99-00753-CR-KMM
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ARMANDO OLIVEROS,
Defendant-Appellant.
______________________
Appeal from the United States District Court for the
Southern District of Florida
______________________
(December 17, 2001)
Before EDMONDSON and CARNES, Circuit Judges, and MUSGRAVE*, Judge.
*
Honorable R. Kenton Musgrave, Judge, U.S. Court of International Trade, sitting by
designation.
CARNES, Circuit Judge:
Armando Oliveros was convicted of six counts of money laundering under
18 U.S.C. §1956(a)(3)(B) and sentenced to 97 months on each count to run
concurrently. In this appeal he raises three contentions that merit discussion. One
concerns the sufficiency of the evidence to prove the jurisdictional element of the
money-laundering crime for which he was convicted. Oliveros’ other two
contentions concern the informant who was the principal witness against him.
Oliveros complains about the district court’s refusal to permit him to present expert
testimony about immigration law in order to prove that the informant witness had
received more assistance from the government than he admitted. He also
complains that the government violated Giglio v. U.S., 405 U.S. 150, 154, 92 S.
Ct. 763, 766 (1972), by making false statements to the jury about the assistance
that the informant witness had received in return for his cooperation. For the
reasons that follow, we reject Oliveros’ contentions and affirm his conviction.
I. FACTS
Armando Oliveros, a lawyer who at the time of his arrest was vice-mayor of
the City of South Miami, was convicted of six counts of money laundering. The
conviction was the culmination of an FBI sting orchestrated by the Public
Corruption Task Force, a combined federal-state operation.
2
The government’s central informant in the sting was Julian Casanova, a
Cuban national, long-time drug importer, and former client of Oliveros. A career
criminal, Casanova had last been arrested in 1992 for drug trafficking he engaged
in while serving as an United States Customs informant, and subsequent to that
arrest he had entered into a plea agreement in which he pledged more cooperation.
Oliveros briefly represented Casanova in that criminal matter, and he also handled
some related civil matters for him. While Casanova was serving his sentence for
that crime, he continued to cooperate with law enforcement, providing information
about drug trafficking in the Miami area.
Still cooperating with law enforcement after his release, Casanova informed
Detective Omar Carillo of the Miami-Dade Police Department that Oliveros had
laundered money for Casanova in the past. Carillo and FBI Special Agent Talarah
Gruber, who were both on the Public Corruption Task Force, planned an operation
targeting Oliveros in which Casanova was to be the confidential informant. The
sting began with Casanova contacting Oliveros by phone. In that initial
conversation, as he had been instructed to do by the FBI, Casanova told Oliveros
that he was back in business trafficking narcotics. That conversation was
unrecorded, however, and at trial Oliveros disputed what was said during it. The
first face-to-face, recorded meeting between Casanova and Oliveros was on August
3
11, 1999 when the two of them met at Casanova’s house. They discussed
Oliveros’ fee for money laundering, which was ten percent, and how Oliveros
would “clean” the money by using the escrow account of his law practice.
The money-laundering scheme entailed a series of cash-for-checks
exchanges. On three occasions – August 18, September 3, and September 23, 1999
– Casanova gave Oliveros $50,000 in cash, which the FBI had withdrawn from its
bank account at SunTrust Bank in Miami. Then, on three corresponding occasions
– August 25, September 13, and October 4– Oliveros gave Casanova $45,000 in
checks reflecting the amount of the laundered cash less Oliveros’ commission. The
August 25 and September 13 checks were drawn on Oliveros’ escrow account. On
October 4, Oliveros gave Casanova three checks totaling $45,000, two of which
were drawn on Oliveros’ escrow account and one of which was drawn on an
account by the name of Union Bailbonds, Union Bailbonds being a company
operated by Oliveros’ brother-in-law. After each transaction, the FBI deposited the
checks Casanova received from Oliveros into the FBI’s SunTrust account.
Oliveros was charged by information with six counts of money laundering.1
Counts I, III, and V of the information charged him with receiving $50,000 in cash,
1
Oliveros consented to being charged by information and executed a written waiver of
indictment.
4
which Casanova had represented to Oliveros to be the proceeds of illegal activity.
Counts II, IV, and VI charged Oliveros with delivering to Casanova the “cleaned”
$45,000 in checks.
At trial Oliveros claimed that Casanova had entrapped him, arguing that
Casanova pressured and tricked him. He said that he did not know the cash was
purportedly the proceeds of narcotics trafficking the first time he accepted cash
from Casanova. It was not until the second time that he accepted cash that he
thought that it might be “dirty,” but by that point, Oliveros stated he felt obligated
to help his friend. Casanova testified that he had told Oliveros the money was
from drug trafficking before the first time he gave cash to him. Oliveros attempted
to impeach Casanova by focusing on his potential bias resulting from the favorable
immigration treatment that he had received in return for his participation in the
sting and his testimony at trial. Oliveros contended that Casanova was treated
more favorably than either the government or Casanova revealed. After a nine-day
trial, the jury convicted Oliveros of all six counts, and the district court sentenced
him to 97 months’ imprisonment on each count, to run concurrently. Oliveros
timely filed this appeal.
5
II. DISCUSSION 2
A. SUFFICIENCY OF THE EVIDENCE TO PROVE THE INTERSTATE
COMMERCE ELEMENT OF MONEY LAUNDERING
Oliveros contends that the government did not prove that the money
laundering transactions for which he was convicted had an interstate commerce
nexus. Under §1956(c)(4)(B), which sets out one of the alternative jurisdictional
elements of the money laundering statute, the government must prove both that a
financial institution was engaged in or affected interstate commerce, and that the
transaction involved the use of the financial institution. Oliveros does not dispute
that the evidence was sufficient to prove that SunTrust Bank, from which the
“dirty” cash was withdrawn and into which the “clean” checks were deposited, is a
financial institution engaged in interstate commerce.3 Instead, he contends that the
transactions (his receipt of the cash and delivery of the checks) were not “financial
transactions” as that term is defined in 18 U.S.C. §1956(c)(4), because they did not
involve the financial institution (SunTrust).
2
We discuss Oliveros’ three primary claims. We have also carefully considered his claim
that the government violated the bribery statute by rewarding Casanova for his testimony, his
related due process claim, his evidentiary claims, and his claim that the district court misapplied
the Sentencing Guidelines, and we reject them without further discussion.
3
The government introduced as evidence at trial documents showing that the bank was a
member of the Federal Deposit Insurance Corporation. See United States v. Peay, 972 F.2d 71,
74-75 (4th Cir. 1992)(proof that a bank’s accounts are federally insured is sufficient to establish
that it is engaged in interstate commerce); United States v. Leslie, 103 F.3d 1093, 1103 (2d Cir.
1997)(same).
6
Oliveros bases his argument that the bank was not involved in the
transactions on United States v. Kramer, 73 F.3d 1067, 1072 (11th Cir. 1996). In
that case, we held that under the money-laundering statute, “each transaction or
transfer of money constitutes a separate offense.” According to Oliveros, the
money-laundering scheme which formed the basis of his conviction consisted of
several distinct offenses (some of which were not charged): (i) his accepting the
cash from Casanova; (ii) his depositing the cash in a bank account; (iii) his
delivering the check to Casanova; and (iv) the FBI’s depositing the check into its
account. Because Oliveros was only charged with receiving the cash from and
delivering the checks to Casanova, those particular transactions must have their
own interstate commerce nexus and cannot share a nexus with other distinct
offenses within the same money-laundering scheme. Or so Oliveros argues.
We disagree. The statute defines a “financial transaction” as a “transaction
involving the use of a financial institution which is engaged in, or the activities of
which affect, interstate or foreign commerce in any way or degree.” 18 U.S.C.
§1956(c)(4)(B) (emphasis added). In interpreting a statute, we adhere to its plain
meaning. See CBS, Inc., v. Primetime 24 Joint Venture, 245 F.3d 1217, 1222
(11th Cir. 2001); United States v. Steele, 147 F.3d 1316, 1318 (11th Cir. 1998)(en
banc). The plain meaning of this statute does not require that use of the financial
7
institution be an integral or essential part of the particular transaction which forms
the basis of the conviction, but only that the transaction involve the use of the
institution in some way. Because the money-laundering statute reaches the full
extent of Congress’ Commerce Clause power, see United States v. Peay, 972 F.2d
71, 74 (4th Cir. 1992); see also Stirone v. United States, 361 U.S. 212, 215, 80 S.
Ct. 270, 272 (1960) (interpreting the Hobbs Act from which the money-laundering
statute derived its language), the government satisfies the interstate commerce
requirement under §1956(c)(4)(B) when it proves that a financial institution with
an interstate nexus was, at least, incidentally involved in the transaction charged in
the indictment. Incidental involvement or use is enough.
Case law in other circuits supports our interpretation of §1956(c)(4)(B). See
United States v. Koller, 956 F.2d 1408, 1410-12 (7th Cir. 1992) (“The statute does
not, however, literally require that the use of the financial institution with the
interstate commerce nexus be a part of, contribute to, or facilitate the design to
conceal, and since the purpose of the interstate commerce nexus is to provide a
predicate for federal legislative jurisdiction, we think that the use of the financial
institution involved in the transaction may be incidental, as it was here, and need
not be shown to have been a part of, contributed to, or facilitated the design to
conceal.”); see also United States v. Laurenzana, 113 F.3d 689, 692 & n.1 (7th Cir.
8
1997) (reiterating “that the connection to interstate commerce required for a
money-laundering offense need only be ‘incidental’ to the transaction” and holding
that a subsequent deposit of the check representing the clean money is sufficient
for the interstate commerce nexus); United States v. Richard, 234 F.3d 763, 767-68
(1st Cir. 2000) (in the context of construing the term “monetary transaction” under
18 U.S.C.§ 1957(f)(1), which includes any “financial transaction” under
§1956(c)(4)(B), holding that the delivery of a criminally derived check to a third
person so that the third person can deposit the check is a transaction involving the
use of a financial institution).
In this case the government’s proof satisfied §1956(c)(4)(B) as to each of the
transactions for which Oliveros was charged and convicted. With respect to Counts
I, III, and V, which charged Oliveros with receiving the cash from Casanova, the
government proved that the bank was involved because the evidence established
that before each of the exchanges the FBI withdrew the cash used from the bank.
Even though the withdrawal from the bank occurred before the transaction that
formed the basis of Oliveros’ conviction on Counts I, III, and V (the receiving of
the cash), the financial institution was involved at least incidentally in Oliveros’
receiving the cash, and that degree of involvement is a sufficient predicate for
federal jurisdiction. See Koller, 956 F.2d at 1412-13 (holding that the interstate
9
commerce requirement was satisfied by evidence that the defendant used a bank in
interstate commerce before committing the transaction which formed the basis of
his conviction, even though the use of the bank did not itself violate the money
laundering statute).
In a similar fashion, the FBI’s depositing the checks Oliveros delivered to
Casanova supplies the interstate commerce nexus for Counts II, IV, and VI of the
information, which charged Oliveros with delivering the checks to Casanova.
While deposit of the checks occurred after the transactions themselves, the deposit
was at least incidental to delivery of the checks and the success of the transactions.
See Laurenzana, 113 F.3d at 692 (“Although [the defendant] would like our
analysis to stop with his delivery of [money] to the [law enforcement] officers, we
cannot do so, because neither commerce nor the flow of cash is a static process.”);
see also Richard, 234 F.3d at 767-68 (finding that the subsequent deposit of a
check by a third person is sufficiently connected to the delivery and acceptance of
the check to satisfy §1956(c)(4)(B)).
Accordingly, we hold that the government’s evidence did prove the
jurisdictional element of the money-laundering statute for each of the transactions
which formed the basis of Oliveros’ conviction.
B. THE FAVORABLE IMMIGRATION TREATMENT OF CASANOVA
10
At trial, Oliveros expended a lot of effort attempting to discredit Casanova,
the FBI’s informant and the principal witness for the government. Oliveros
emphasized Casanova’s long criminal history, and he focused attention on the
favorable treatment Casanova had received in connection with his immigration
status in return for his participation in the sting and his testimony at trial. The
government and Casanova freely admitted that Casanova had received some
favorable treatment in exchange for his cooperation and participation, but Oliveros
contended that because of the way immigration law works, what Casanova had
received was more beneficial to him than either the government or Casanova
admitted.
Because Casanova was a Cuban national and a felon convicted of an
aggravated felony,4 there was a detainer order outstanding against him, and he
faced a deportation hearing when he was released from prison in November of
1998. In return for the assistance that Casanova was providing to law enforcement
in narcotics cases other than this one, officials succeeded in having the detainer
order lifted, and as a result Casanova began serving his period of supervised
release instead of being detained. However, he still faced deportation.
4
Casanova was convicted of trafficking narcotics, which 8 U.S.C. § 1101(a)(43)(B)
defines as an aggravated felony.
11
As a result of changes brought about by the Illegal Immigrant Removal and
Immigrant Responsibility Act (IIRIRA), Casanova’s deportation could not be
waived even after he had agreed to participate in the sting operation. See 8 U.S.C.
§1229b(a)(3). At the mandated deportation hearings, foreign nationals in
Casanova’s position receive orders of removal, which strip them of their permanent
resident status. After the deportation hearing, they are detained for up to ninety
days while the INS attempts to remove them. See 8 U.S.C. § 1231(a)(1)(A)
(“[W]hen an alien is ordered removed, the Attorney General shall remove the alien
from the United States within a period of 90 days....”). However, few Cuban
nationals whom this country attempts to deport because they have been convicted
of crimes are accepted by Cuba, which apparently takes the position that it has
enough criminals already.
Casanova was not detained at all, however, because the FBI wanted to avoid
any disruption of its sting operation. To prevent Casanova’s detention, the FBI got
the INS to issue Casanova an “advanced parole”5 which allowed him to enter the
country for a limited time under the supervision of the FBI but which did not affect
5
The IIRIRA prescribes certain ways aliens, otherwise ineligible to enter the United
States, can enter the country. One such method is the use of an advanced parole in cases where
the alien’s presence in the country will be “a significant public benefit.” 8 U.S.C.
§1182(d)(5)(A). The alien is given an “[a]dvance authorization,” see 8 C.F.R. §212.5(f), which
the parties in this case have called an “advanced parole.” That is what Casanova received.
12
his permanent immigration status. While negotiating with the INS over the
“advanced parole,” the FBI got Casanova’s deportation hearing delayed. When
Casanova finally did appear at his deportation hearing, the immigration judge
ordered him removed from this country to Cuba, which was tantamount to ordering
him detained in a INS facility for ninety days. However, instead of taking
Casanova to an INS facility, the FBI took him to the Bahamas, and then using the
advanced parole authorization that it had obtained from the INS for him, brought
Casanova back into the United States. So, the FBI’s intervention on Casanova’s
behalf benefitted him because it resulted in his not being detained for the 90-day
period.
All of what we have described to this point about the treatment Casanova
received, what the government did for him in return for his participation in the
sting and testimony, was disclosed to the defense before trial and brought out to the
jury. At trial the government admitted its actions on behalf of Casanova and
contended that they were authorized by law.
The dispute between the parties is not about what we have described so far.
It is twofold. First, Oliveros contends, albeit half-heartedly, that Casanova had
been given or promised an S-Visa. Besides advanced parole, another possible
method law enforcement has used in the past in order to gain entry for an otherwise
13
inadmissible alien is to obtain for him a special visa. The categories of aliens
eligible for special visas are listed in 8 U.S.C. §1101(a)(15) and include aliens who
are informants and cooperators. Id. at §1101(a)(15)(S). The visa for informants
derives its name, “S-Visa,” from the fact that it is contained in subsection S of that
part of the statutory provision. At trial, Oliveros contended that an S-Visa would
allow Casanova to stay in the United States permanently, but the government and
Casanova unequivocally denied that he had received or been promised one, and
there is no evidence at all to contradict those denials. Agent Gruber was asked
about S-Visas and stated that he had been told that they were no longer available
under the law. Oliveros contends that they are still available, and that is the first
dispute.
The second dispute is about the benefit or value to Casanova of what the
government admittedly did do for him. It is about what would have happened to
Casanova if the government had not intervened on his behalf in return for his
cooperation and testimony – what would have happened to Casanova after the 90-
day detention period that he was able to avoid because of the FBI’s intervention on
his behalf. Oliveros contends that after the 90 days of detention had passed, a
three-member board, the “Cuban Review Panel,” established by 8 C.F.R.
§212.12(d)(1), would have reviewed Casanova’s case and considered whether to
14
release him, weighing several factors, including his future criminal threat and his
past criminal history. See 8 C.F.R. §§212.12 (d)(2)(iii) & (iv) and 212.12(d)(3)(ii).
Given Casanova’s criminal history, Oliveros argues that Casanova likely would
have been indefinitely detained. On the other hand, Agent Gruber testified at trial
that her understanding was that Casanova would have been released from detention
by the INS after 90 days. Casanova testified that although he had heard of people
being indefinitely detained, he thought that in most cases the detention period was
for was 90 days, which is what he thought he likely would have faced but for the
FBI’s intervention.
1. The Exclusion of Oliveros’s Expert Witness
To prove that S-Visa’s were still available and that Casanova would have
faced an indefinite detention but for the FBI’s intervention on his behalf, Oliveros
wanted to call an attorney who specialized in immigration cases to testify as an
expert witness about immigration law. The district court refused to allow the
attorney to testify, explaining that the extent of Casanova’s benefits had been fully
explored and that neither the FBI nor Casanova believed S-Visas were an option.
Oliveros contends that this ruling was reversible error, arguing that the expert
witness’ testimony was relevant to show the extent of Casanova’s bias.
15
The district court did not abuse its discretion in excluding the attorney’s
testimony to the extent that it was directed at establishing whether S-Visas were
available in 1999 and what the statutory prescribed immigration procedure was for
Cuban nationals. Domestic law is properly considered and determined by the court
whose function it is to instruct the jury on the law; domestic law is not to be
presented through testimony and argued to the jury as a question of fact. See 2A
CHARLES ALAN WRIGHT, FEDERAL PRACTICE AND PROCEDURE §432 (3d ed. 2000);
cf. FED. R. CRIM. P. 26.1 (concerning foreign law); United States v. McClain, 593
F.2d 658, 669-670 (5th Cir. 1979) (reaffirming that the proper procedure is for the
judge rather than the jury to determine questions of foreign law). In order to
establish that the law still provided for S-Visas and to establish the legal process
and consequences that Oliveros would have faced without intervention after the
prescribed 90-day detention period had run, Oliveros should have presented the
matter (including the expert witness opinions, if any, that might have been
permissible) to the district court and asked the court to instruct the jury on the law.
He did not do that.
Oliveros proffered that his immigration-law expert also would have testified
that given his own experience representing clients before INS review boards, under
the statutorily prescribed procedure, Casanova as an aggravated felon likely would
16
have faced a lengthy detention– in his opinion “years of detention”– much longer
than the ninety days that Agent Gruber and Casanova testified they believed he
would have faced. Assuming that this would have been a proper subject for expert
testimony, we still conclude that the district court did not abuse its discretion in
excluding the testimony. See United States v. Sheffield, 992 F.2d 1164, 1167
(11th Cir. 1993) (abuse of discretion standard).
Oliveros argues that the proffered expert testimony is relevant to the issue of
Casanova’s bias, because it shows the extent of the benefit he actually received for
cooperating and testifying. When it comes to a witness’ motive to lie, however,
what counts is not the actual extent of the benefit the witness has received or will
receive, but the witness’ belief about what he is getting. To show greater bias,
Oliveros must also show that Casanova knew that he faced more severe detention
than he admitted. The bias of a witness is a subjective fact influenced by that
witness’ beliefs about the benefit he will receive if he testifies in a particular way
and the value of it to him, which is measured by what he thinks will happen if he
does not receive the benefit. A witness cannot be motivated to lie by something
which the witness does not think will happen. The absolute truth about what
Casanova received from the government and its value does not matter; what
Casanova believed about it does.
17
The proffered expert opinion testimony about the full extent of the detention
Casanova would have faced but for the FBI’s intervention on his behalf does not
show that Casanova knew it. Oliveros argues that the reality about the full benefit
of what Casanova received is evidence from which it could be inferred that he
knew that reality. In other words, the argument is that the fact Casanova actually
faced years of detention (if he did) instead of 90 days is evidence he knew he did.
That might be a persuasive argument in some contexts, but not in the particular
area of immigration law involved in this case, an area in which the law is unsettled,
complex, and confusing. The fact that Oliveros felt compelled to offer expert
opinion on how the law operated, instead of asking the court to take judicial notice
and instruct the jury accordingly, is an indication that there is no basis for
assuming that Casanova or Agent Gruber should have known what Oliveros
apparently thought the district court judge did not. Another indication of the same
thing is the fact that Oliveros’ proffered expert opinion has since been contradicted
in substantial part by the Supreme Court.6 We do not think it reasonable to infer or
assume that a confidential informant and his law enforcement handler knew more
6
In Zadvydas v. Davis, __ U.S. __, 121 S. Ct. 2491 (2001), the Supreme Court held,
contrary to what Oliveros’ expert would have testified, that the INS could not detain indefinitely
an alien ordered removed from this country. Instead, the period for which such an alien could be
held is subject to reasonable limitations, and the presumptive limit is six months. 121 S. Ct. at
2505.
18
about the details of a particular area of immigration law than does the district court
and the immigration law expert witness proffered by the defense in this case.
2. The Alleged Giglio violation
Oliveros also contends that the exclusion of his expert’s testimony
concerning the actual workings of immigration law and the true length of the
detention that Casanova would have faced had he not cooperated and testified let
the government anesthesize the jury to the effect of the benefits it gave Casanova
by allowing the prosecutor to minimize the significance of them and argue that
they were authorized by federal law. Oliveros contends that these
misrepresentations violated Giglio v. U.S., 405 U.S. 150, 154, 92 S. Ct. 763, 766
(1972).7 However, Oliveros’s failure to show that Casanova knew he faced more
lengthy detention or that the benefits he received were not authorized by law is
fatal to his Giglio claim. Without such a showing, any alleged misrepresentations
by the prosecutor on the subject are not material.
For Giglio purposes, “the falsehood is deemed to be material ‘if there is any
reasonable likelihood that the false testimony could have affected the judgment of
the jury.’” United States v. Alzate, 47 F.3d 1103, 1110 (11th Cir. 1995) (quoting
7
Giglio involved a prosecutor who knowingly used perjured testimony or failed to correct
testimony that was false. In United States v. Alzate, 47 F.3d 1103, 1110 (11th Cir. 1995), we
applied Giglio to the situation where the prosecutor himself made false representations to the
jury.
19
United States v. Agurs, 427 U.S. 97, 103, 96 S. Ct. 2392, 2397 (1976)). Even if
Casanova did receive more of a benefit than he or Agent Gruber knew, and even if
that benefit was not authorized by law, that does not affect Casanova’s credibility
for the reasons we have already discussed. Accordingly, even if the prosecutor’s
statements to the jury were false, they were not material.
AFFIRMED.
20