United States v. Fernandez ( 2009 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
February 11, 2009
No. 07-50513 Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellees
v.
HORACIO FERNANDEZ; DIANA MARQUEZ; HECTOR LEONEL
MARQUEZ-RAMOS, also known as Hector Marquez
Defendants-Appellants
Appeal from the United States District Court
for the Western District of Texas
Before JONES, Chief Judge, and OWEN and SOUTHWICK, Circuit Judges.
LESLIE H. SOUTHWICK, Circuit Judge:
Three jointly tried defendants appeal their convictions and sentences
relating to a major drug-trafficking conspiracy. We AFFIRM.
I. BACKGROUND
Horacio Fernandez, Diana Marquez, and Hector Leonel Marquez-Ramos
were each convicted by a jury of multiple counts – some overlapping, others
unique – resulting from their involvement in a marijuana importation
conspiracy based in Juarez, Mexico and El Paso, Texas. Production and
distribution networks extended considerably deeper into each country.
No. 07-50513
Taking the evidence in the light most favorable to the government, all
were part of a group known as the Marquez Drug Trafficking Organization (the
“Organization”), whose leader was Mario Marquez. While not a defendant,
Mario played a central role in the relevant events. Hector Marquez-Ramos is
Mario’s brother; Diana Marquez was his wife; Horacio Fernandez was a long-
time associate convicted of serving as the Organization’s money-laundering
expert.
Fernandez was charged solely with money-laundering counts. He was
sentenced to two concurrent terms of 160 months’ imprisonment. Diana
Marquez was charged with money laundering and with drug distribution and
importation. She was sentenced to multiple concurrent terms of imprisonment,
the longest of which were for 360 months. Hector Marquez-Ramos was charged
with multiple drug counts as well as the most serious offense, conspiracy to
murder in a foreign country. He was sentenced to multiple terms of life
imprisonment and one term of 40 years’ imprisonment, all to run concurrently.
We separately address the contentions of each defendant.
II. DISCUSSION
A. Hector Fernandez
1. a. Sufficiency of the Evidence on Money Laundering Counts
Fernandez argues that the evidence was insufficient to support the jury
verdict convicting him of one count of conspiracy to launder money and another
of substantive money laundering. See 18 U.S.C. § 1956(h), 1956(a)(1)(B)(i), (ii).
Because Fernandez objected to the sufficiency of the evidence at the trial level,
we evaluate whether a reasonable jury could have found that the evidence
established the guilt of the defendant beyond a reasonable doubt. United States
v. Lewis, 476 F.3d 369, 377 (5th Cir. 2007). Due to the jury verdict of guilt, the
evidence is viewed in the light most favorable to the government, which receives
all reasonable inferences and credibility choices. Id.
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The specific nature of this conspiracy required the government to show
that Fernandez knowingly conspired with at least one other person to (1)
conduct or attempt to conduct a financial transaction; (2) with the knowledge
that it involved proceeds of specified unlawful activity (here, controlled
substance offenses); and (3) with the knowledge that the transaction was
designed in whole or in part to conceal the nature, source, ownership, or control
of the proceeds, or to avoid a federal or state reporting requirement. United
States v. Adair, 436 F.3d 520, 524 (5th Cir. 2006).
The government’s conspiracy case was that Fernandez served as a conduit
for the proceeds of the Organization, using real estate transactions as a cover.
The conspiracy was alleged to have existed from August 1988 until July 2005.
A major part of the government’s case was the testimony of an undercover
agent, Liss, who met with Fernandez on numerous occasions while posing as a
Colombian “high-level drug trafficker.” Liss began meeting with Fernandez in
July 1995. He testified that Fernandez was paranoid about potential surveil-
lance by law enforcement, insisting meetings take place outdoors with only one
other person, and scanning police frequencies for evidence of detection.
Fernandez was justified in his paranoia. After Liss said he had “large sums of
money that needed to be laundered,” Fernandez responded that he could help
with real estate and investment transactions. According to this testimony,
Fernandez responded to a request for more details about his money laundering
techniques by saying, “I don’t ask you about your drug business, you should not
ask me about my money laundering business, or how I move the money.”
Fernandez also mentioned that most of his experience was with the proceeds of
marijuana, while Liss presumably would be dealing in cocaine.
The government also introduced approximately two hours of recorded
phone calls between Liss and Fernandez, during which Fernandez offered to
introduce Liss to Fernandez’s “friend,” a Mexican “high-level drug trafficker.”
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No. 07-50513
The government asserts this was a reference to Mario Marquez. Liss testified
that the conversations contained various mutually understood coded references
to the drug trade, including discussions of “real estate.”
The government next alleges that a number of particular transactions
show Fernandez’s use of “shell companies” to receive money from Mario and
Diana Marquez, launder it, and then return it to them. Examples supported by
evidence at trial are said to be these:
• real estate was transferred from the Marquez family to a Fernandez-
controlled company, then used as collateral for a half-million dollar loan;
• numerous high-value cashier’s checks were exchanged between Fernandez
and the Marquezes, which Fernandez could not explain at trial;
• Diana Marquez lived rent free in a house owned by Fernandez;
• Diana Marquez also received false W-2 forms from a Fernandez-controlled
corporation by which she was not employed; and
• Mario Marquez wrote Fernandez from prison directing him to deposit
immediately as much money as possible in Diana Marquez’s account.
One agent summarized the government’s case by testifying that “there was a
‘flow of money’ from Mario Marquez to Horacio Fernandez, ‘and everything has
shown that the money has come back to the Marquezes.’”
We just reviewed the evidence as to a conspiracy. The substantive money
laundering count, also based on Section 1956(a)(1)(B)(i), involved a $17,000 down
payment used to purchase a house in El Paso in August 2003. The evidence was
that Fernandez, through one of his corporations, sold a note on another property
for $80,000, and directed the buyer to remit part of the payment as a $17,000
check to Mario Marquez. The check was deposited in Diana Marquez’s account,
from which a cashier’s check of just under $17,000 was written a few days later
to purchase the house that is the subject of the count.
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No. 07-50513
Fernandez argues that he was involved in a legitimate real estate business
focused on purchasing properties at foreclosure sales; the cashiers checks that
were introduced in the government’s case were for legal purposes. Fernandez
lists various checks contained in the government exhibits, repeating the basic
description of them while stating, with respect to most, that “[n]o tracing was
offered to establish the source of these funds or the use made of the funds.”
Fernandez explains his possession of the funds as resulting from the “substantial
revenues” of his real estate business and a “substantial inheritance” he received
on his father’s death. He also argues that the prosecution’s theory was not
matched by the evidence, because one government witness testified that
Marquez told him that Marquez had transferred ten million dollars to a “real
estate person,” and that this was shorthand for Fernandez. Since the total
amount the court attributed to him at sentencing was just $452,394.15, he
argues that the government’s theory was contradicted by its own evidence.
Fernandez has not made the high showing required to show the evidence
was insufficient to convict him of the conspiracy charge. “Circumstantial
evidence may establish the existence of a conspiracy, as well as an individual’s
voluntary participation in it, and ‘circumstances altogether inconclusive, if
separately considered, may, by their number and joint operation . . . be sufficient
to constitute conclusive proof.’” United States v. Garcia Abrego, 141 F.3d 142,
155 (5th Cir. 1998) (quoting United States v. Roberts, 913 F.2d 211, 218 (5th Cir.
1990)). Specifically responsive to Fernandez’s assertion that the government
failed to “trace” the origins of particular checks, the prosecution “is under no
duty to trace the individual funds” involved in particular transactions, or to
examine a transaction “wholly in isolation if the evidence tends to show that it
is part of a larger scheme that is designed to conceal illegal proceeds.” United
States v. Rodriguez, 278 F.3d 486, 491 (5th Cir. 2002).
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No. 07-50513
Given the overwhelming evidence that Mario Marquez was the head of an
international drug cartel, the jury could have concluded that the large-scale
transfers of money from the Marquezes, through Fernandez or various shell
corporations and back again, proved that the funds were the proceeds of the
specified drug offenses and that the transactions were designed to conceal the
funds’ origins. Evidence of Fernandez’s close contact with the Marquezes and
Liss’s testimony were sufficient to permit a reasonable jury to conclude that he
was aware of the origins of the proceeds and conscious that he was engaged in
money laundering. Fernandez did engage in some legitimate business, but the
government had evidence he also engaged in this criminal conduct. He and the
Marquezes had a shared interest in race horses, but there was evidence they
shared other interests too. The jury had sufficient evidence of guilt.
With respect to the substantive count, the evidence was sufficient for the
jury to find that the real estate transaction was a means of returning drug
operations’ money that the Marquezes had previously transmitted to Fernandez
for laundering. Indeed, the fact that the particular money received from the
buyer of the note was not drug money did not contradict the government’s
theory. Rather, it illustrated that the money had been laundered – “clean”
money from an outsider was exchanged for the “dirty” money the Marquezes had
earlier given Fernandez. At least the jury could have so found, given the
number of transactions between them discussed in connection with the
preceding count. We affirm Fernandez’s convictions.
1. b. Effect of Recent United States Supreme Court Opinion
On appeal, Fernandez argues that a Supreme Court decision handed down
after his conviction requires reversal of his money laundering convictions. See
United States v. Santos, 128 S. Ct. 2020 (2008). In Santos, a plurality of the
Court held that the phrase “proceeds of some form of unlawful activity,” found
in Section 1956(a)(1), means the “profits,” rather than merely the “receipts,” of
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No. 07-50513
the activity. Id. at 2025. Here, the district court instructed the jury that
“‘proceeds’ includes any property, or any interest in property, that someone
acquires or retains as a result of the commission of the underlying specified
unlawful activity.” That instruction did not require jurors to focus on “profits.”
We may review a claim raised for the first time on appeal, even when
based on an intervening Supreme Court decision, only for plain error. United
States v. Rios-Quintero, 204 F.3d 214, 215 (5th Cir. 2000). Such a review
requires that there be error, that is plain, and that affects the defendant’s
substantial rights. Id. Even then, the court must determine that the error
“seriously affects the fairness, integrity or public reputation of judicial proceed-
ings” in order to correct it. Id. We will judge whether the error is plain based
on the state of the law at the time of the appeal, not of the trial. Johnston v.
United States, 520 U.S. 461, 468 (1997).
Here, the first two prongs of the inquiry are closely related. In light of
Santos, it might seem apparent that “proceeds” may not be defined simply as any
property acquired at some point during the transaction; “profit” is commonly
defined as “the excess of revenues over expenditures.” B LACK’S L AW D ICTIO-
NARY 1228 (7th ed. 1999).
The issue is complicated by the fact that in Santos, Justice Stevens wrote
a concurring opinion that was necessary to forming a majority. The plurality
justices acknowledged that the Stevens opinion governed to the extent it was
narrower than the Court’s opinion. Santos, 128 S. Ct. at 2031. Justice Stevens
found that Congress intended “proceeds” to have different meanings in different
contexts. Specifically, he suggested, on the basis of legislative history, that
“Congress intended the term ‘proceeds’ to include gross revenues from the sale
of contraband and the operation of organized crime syndicates involving such
sales.” Id. at 2032 (Stevens, J., concurring). Thus, he did not “agree with the
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plurality that the rule of lenity must apply to the definition of ‘proceeds’ for these
types of unlawful activities.” Id. at 2032 n.3.
Justice Stevens’s comment that gross revenues were the relevant proceeds
applies to the sale of contraband and the operation of criminal organizations,
precisely the type of offenses for which Fernandez was convicted. While Justice
Stevens and the plurality disagreed over the precise precedential effect of his
statement, the uncertainty renders any error here not “plain.”
Even were there error that was plain, we must decide whether the error
affects Fernandez’s substantial rights; that is, whether it “must have affected
the outcome of the district court proceedings.” United States v. Mares, 402 F.3d
511, 521 (5th Cir. 2005). The sharp factual distinctions between this case and
Santos explain why Fernandez cannot meet that burden. In Santos, the
defendant was convicted of money laundering based on his role in operating an
illegal lottery. He supervised the use of funds collected in the lottery to pay the
salaries of those working beneath him, as well as to pay off the winners of the
lottery. Santos, 128 S. Ct. at 2022-23. He was convicted under 18 U.S.C. §
1956(a)(1)(A)(i), which prohibits conducting a financial transaction with the
proceeds of illegal activity “with the intent to promote the carrying on of”
additional illegal activity, which in Santos was the continued operation of the
lottery. It was thus apparent in Santos that the conviction could not stand
under the new definition of “proceeds,” because all the defendant was accused
of was plowing the receipts of the gambling operation back into the business.
By contrast, Fernandez’s convictions rest on Section 1956(a)(1)(b)(i) and
(ii), which prohibit transactions designed to “conceal or disguise” the origins or
location of the proceeds of illegal activity, or to avoid legal reporting require-
ments. Given the scope of the government’s evidence that Fernandez was
involved in a string of transactions over a period of fifteen years involving real
estate, horses, and multiple shell corporations, we are unable to find that the
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No. 07-50513
outcome of the trial on these charges would necessarily have been different had
the jury known that it must find the transactions were conducted with the
“profits” of, rather than property acquired or retained from, the drug-trafficking
activity. Fernandez did not simply take the receipts of the Organization and use
them to purchase more drugs or pay salaries. Rather, the evidence was that his
machinations were designed to conceal large amounts of money not apparently
needed to run the operation. That would be “profits.”
Because we do not find that the third prong of the plain error test is met,
we reject the Santos challenge to Fernandez’s convictions.
2. Fernandez Severance Motion
Fernandez argues that the district court erred in refusing to sever his trial
from that of his co-defendants. A district court’s refusal to grant a severance is
reviewed for any abuse of discretion. United States v. Arzola-Amaya, 867 F.2d
1504, 1516 (5th Cir. 1989). A severance must be granted “only if there is a
serious risk that a joint trial would compromise a specific trial right of one of the
defendants or prevent the jury from making a reliable determination of guilt or
innocence.” United States v. Bermea, 30 F.3d 1539, 1572 (5th Cir. 1994).
Fernandez acknowledges the general rule that co-conspirators should be
tried together. Zafiro v. United States, 506 U.S. 534, 537 (1993). He argues that
the seriousness of the drug and conspiracy to kill charges against his co-
defendants, together with the breadth of evidence admitted under those counts
but irrelevant to the money laundering charges he faced, were sufficient to
require severance here.
Fernandez argues that the murder charge against Marquez-Ramos was
particularly likely to create unfair prejudice against him. See United States v.
Cortinas, 142 F.3d 242, 248 (5th Cir. 1998). Unlike in Cortinas, Fernandez’s
involvement with the conspiracy overlapped with the time of the murder, and his
co-defendants were not, as in Cortinas, unknown to him or operating wholly
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No. 07-50513
independently. “Any prejudice created by a joint trial can generally be cured
through careful jury instructions.” Bermea, 30 F.3d at 1572. Such was the case
here. The district court emphasized that each charge against each defendant
was to be considered separately. The jury was instructed that 19 of the 41
witnesses were not testifying against Fernandez. Other instructions were that
each defendant’s case “should be considered separately and individually” and
“separate consideration” given to each defendant. Fernandez has not overcome
the presumption that jury instructions can cure prejudice, or shown that the
district court otherwise abused its discretion in refusing to sever his trial.
3. Alleged Evidentiary Errors Regarding Fernandez
Fernandez argues that the district court violated evidentiary rules in
admitting a proffer letter to him from the government. In June 2005, Immigra-
tion and Customs Enforcement agents met with Fernandez to inform him of a
threat against his life. The conversation caused Fernandez to provide some
information about the Organization and offer to provide more in exchange for
immunity from prosecution. The next day, agents brought Fernandez a proffer
letter signed by an Assistant United States Attorney (“AUSA”), but he asked for
time to consult with his attorney. No deal was ever consummated. At trial, the
district court permitted agents to testify about this exchange.
The admissibility of evidence is reviewed for abuse of discretion. United
States v. Coleman, 997 F.2d 1101, 1104 (5th Cir. 1993). When, as here, no
objection was made at trial, this court reviews for plain error. United States v.
Jones, 484 F.3d 783, 792 (5th Cir. 2007).
A “statement made in the course of plea discussions with an attorney for
the prosecuting authority which do not result in a plea of guilty” is not
admissible. F.R. E. 410(4). That prohibition is inapplicable because Fernandez’s
discussions were with government attorneys, not with law enforcement officers.
United States v. Keith, 764 F.2d 263, 265 (5th Cir. 1985). Although a prosecutor
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No. 07-50513
signed the proffer letter that Fernandez sought after the first day’s discussions,
Fernandez does not explain how his initial statements to law enforcement
agents, prior to contacting any attorney, could have been made “in the course of
plea discussions with an attorney for the prosecution.”
Rule 408 makes inadmissible evidence of “furnishing or offering or
promising to furnish . . . a valuable consideration in compromising or attempting
to compromise a claim,” as well as “conduct or statements made in compromise
negotiations regarding the claim.” In this circuit, Rule 408 applies to criminal
cases. United States v. Hays, 872 F.2d 582, 588-89 (5th Cir. 1989). Even
assuming that it was error to admit the evidence under Rule 408, the mistake
would not satisfy the plain error test, which requires that an error be plain,
affect substantial rights, and seriously affect the fairness, integrity, or public
reputation of judicial proceedings. Jones, 484 F.3d at 792. To ask whether a
substantial right was affected is to ask whether the error “must have affected
the outcome of the district court proceedings.” United States v. Mares, 402 F.3d
511, 521 (5th Cir. 2005). The defendant bears the burden of persuasion. Id.
Fernandez does not meet that burden. He does not address the effect of the
weight of the evidence against him, which, as we have discussed, was substan-
tial and sufficient for conviction without the proffer letter evidence. Moreover,
the most that Rule 408 would appear to bar is Fernandez’s opening of the
discussion about immunity and the ensuing letter; the preceding conversation
with the agents, including his knowledge and possession of records relating to
Marquez and perhaps even his offer to “help out,” which occurred before he
decided to ask for protection, would remain admissible. Thus, Fernandez cannot
show that any violation of Rule 408 was plain error, and we affirm on this issue.
4. Brady Error Regarding Fernandez
Fernandez alleges that the government failed to provide all evidence
favorable to him, as it is required to do. Brady v. Maryland, 373 U.S. 83, 87
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No. 07-50513
(1963). The alleged violation was the failure to turn over to the defense a 1995
internal report written by a former IRS agent. According to Fernandez, his
investigator located the agent after trial. The report was issued at the
conclusion of the earlier investigation. Fernandez argues that it found no
evidence against him of money laundering or tax evasion.
Though there are issues now regarding the report itself and what it said,
the 1995 investigation and its discontinuation were known at the time of trial.
Jurors were told in closing argument that the government had all this evidence
in 1995 and did nothing. Only after the trial was the report finally obtained at
the request of the prosecutor from the regional office of the IRS. The district
judge examined the report in camera when it was submitted as part of the
motion for a new trial. He found no exculpatory material in the report.
When a defendant seeks a new trial on the basis of a Brady violation, he
must show that “(1) the prosecution did not disclose the evidence; (2) the
evidence was favorable to the defense; and (3) the evidence was material–i.e.,
there is a reasonable probability that if the government had disclosed the
evidence, the result of the proceeding would have been different.” United States
v. Infante, 404 F.3d 376, 386 (5th Cir. 2005). We review the existence of a Brady
violation de novo. Id.
The government argues that neither the second nor third factors are
satisfied here. We have noted that the district court found that there was no
exculpatory material in the report. The only evidence Fernandez offers that the
report was exculpatory is an unsworn post-trial interview with the former IRS
agent who wrote it. Other courts have held that the subjective opinion of a non-
witness agent as to the quantity or quality of evidence is not relevant to this
question. See Williams v. United States, 74 F.3d 1242, 1996 WL 4358, at *4 (7th
Cir. 1996) (unpublished table decision); United States v. Montalvo, 20 F. Supp.
2d 270, 279 (D.P.R. 1998). Even if there was favorable evidence, it was not
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No. 07-50513
material. That is because Fernandez’s counsel was already aware that an
investigation had taken place in the mid-1990s that led to no action against his
client, and argued this point to the jury at closing argument.
Given the scope of the evidence against Fernandez over the entire period
of the charged conspiracy, there is no reasonable probability that the outcome
would have changed had a report from 1995 – ten years before the end of the
conspiracy – been introduced. Moreover, Fernandez does not offer an analysis
of the document or explain why the district court’s evaluation of it as non-
exculpatory was erroneous. We find no Brady violation.
5. Fernandez Sentencing Errors
Finally, Fernandez raises a number of claims with respect to his sentence.
Sentences are reviewed for reasonableness. A sentence within the properly
calculated Guidelines range is presumed reasonable on appeal. United States
v. King, 541 F.3d 1143, 1145 n.1 (5th Cir. 2008) (stating that we continue to
apply this presumption after it was approved in Rita v. United States, 127 S. Ct.
2456, 2466-68 (2007)). Findings of fact used in calculating the Guidelines range
are reviewed for clear error, while interpretation of the Guidelines themselves
is reviewed de novo. United States v. Conner, 537 F.3d 480, 489 (5th Cir. 2008).
Fernandez challenges several aspects of the calculation. The first concerns
the amount of laundered funds. The district court found that the total amount
of laundered funds for which Fernandez was responsible was $535,514.78.
Fernandez’s principal objection to this sum is that the court should not have
included the $100,000 proceeds from the sale of thoroughbred horses that had
been owned by Mario Marquez and purchased by a Fernandez-operated company
a few days after Marquez was arrested. Fernandez testified about his sale of the
horses and return of the money to the Marquez family. Part of the basis for
alleging error is a dispute over the meaning of Fernandez’s testimony at trial.
He was asked if he remembered the sales price for the horses, and he answered:
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No. 07-50513
“Just kind of guessing would be maybe, like, 100,000, if the horses were sold for
what they should have; maybe 120.” The punctuation, of course, was provided
by the court reporter. At sentencing, the district court agreed with the
prosecutor’s opinion that Fernandez was asserting that the horses “should have”
sold for $120,000, but in fact only sold for $100,000. While the testimony is
perhaps subject to more than one plausible interpretation, the district judge
chose a plausible meaning. We find no clear error.
Fernandez argues that, even if $100,000 was the correct amount, it was
improper to attribute the money to the proceeds of illegal drug activity. There
was, though, substantial evidence on the scope of the Marquez Organization and
the cash flow it generated. The evidence was overwhelming that Mario Marquez
was a major international drug smuggler, who had no other apparent source of
income, and the horses were sold and $100,000 transferred in response to his
arrest. Thus, the court could permissibly conclude that the horses had originally
been purchased with drug proceeds.
Fernandez also objects to a six-level increase due to his belief that the
funds were the proceeds of, or were intended to promote, a controlled-substance
offense. See U.S.S.G. § 2S1.1(b)(1). The jury had to find that Fernandez was
aware the proceeds stemmed from controlled-substance violations in order to
convict him of the money laundering counts. It was not error for the district
court to make the same finding.
Next, Fernandez objects to a two-level increase for abusing a public trust
or using a special skill in the commission of his offenses. See U.S.S.G. § 3B1.3.
The special skill adjustment was justified in the PSR by Fernandez’s position as
a licensed real estate broker, which it found was instrumental to the means by
which he laundered money. This adjustment is supported by the facts. The
district court could have found in at least two of the real estate transactions
examples of particular skill. The application note for the “special skill”
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No. 07-50513
enhancement refers to occupations for which “licensing” is required; Fernandez
was a licensed real estate agent.
Finally, Fernandez objects to a two-level enhancement for sophisticated
money laundering. See U.S.S.G. § 2S1.1(b)(3). Both sides rely on commentary
for that provision. It lists four circumstances to be considered in determining
whether the enhancement applies: 1) fictitious entities, 2) shell corporations, 3)
layered transactions with illegitimate funds, and 4) offshore accounts. The
district court could have concluded that the charged transactions involved
multiple transactions, i.e., “layering,” and that a number of Fernandez’s
corporation were shell corporations. We once upheld use of the sophisticated
money laundering enhancement when the conduct was arguably less egregious
than that here. See United States v. Charon, 442 F.3d 881, 891 (5th Cir. 2006).
We affirm Fernandez’s convictions and sentence.
B. Diana Marquez
1. a. Sufficiency of the Evidence on Diana Marquez’s Drug Counts
Diana Marquez was convicted of conspiracy to possess with intent to
distribute 1,000 kilograms or more of marijuana, and of conspiracy to import
marijuana in the same amount. See 21 U.S.C. §§ 846, 841(a)(1), 841(b)(1)(A)(vii)
(possession with intent to distribute); 21 U.S.C. §§ 952(a), 960(a)(1),
960(b)(1)(G) (importation). She argues that the evidence was insufficient to
convict her on these counts.
To prove a conspiracy, the government must show “(1) an agreement
between two or more persons to pursue an unlawful objective; (2) the defendant’s
knowledge of the unlawful objective and voluntary agreement to join the
conspiracy; and (3) an overt act by one or more of the members of the conspiracy
in furtherance of the objective of the conspiracy.” Conner, 537 F.3d at 484.
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No. 07-50513
The evidence to prove these charges was largely circumstantial but fairly
substantial. One of Diana Marquez’s former employers testified that she
admitted helping Mario Marquez deliver drugs by carrying them in her purse.
She also told the witness that she had sent drug proceeds to her mother, who
used the money to buy two houses. Neighbors of the Marquezes and employees
of the Organization testified that they had seen marijuana in Diana Marquez’s
house on several occasions, including “a load of marijuana, in burlap sacks” and
“large boxes.” There was testimony that Diana Marquez helped others stay
aware of Mario’s frequently changing cell phone numbers, and told one of the
employees to throw away a slip of paper with the number on it. There was
evidence that Diana Marquez “was the one that knew the immigration people”
who could ease the importation of drugs at the border. She was involved in a
trip to find a house in El Paso that became a convenient transhipment point for
marijuana. Two witnesses testified that Diana Marquez was involved in
conversations during the trip about the suitability of various houses for drug
operations, including favoring one house because it had a basement for storage.
A key witness against all the defendants was Ricardo Sepulveda, who had
worked for the Organization. It was the murder of his mother in Juarez for
which one of the other defendants was convicted. Sepulveda testified to
overhearing Diana Marquez warn Mario Marquez not to return home after their
house was searched, and that she had boasted about agents not finding drug-
related documents during the search. There was testimony that she had helped
Mario Marquez in his search for Sepulveda after he had fled the house where his
mother was killed.
In addition to the testimony about Diana Marquez’s actions and words,
there was incriminating evidence found in her locker at the Texas Alcoholic
Beverage Commission office where she worked. When opened after her arrest,
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No. 07-50513
it contained $8,000 in cash, deposits slips totaling close to $90,000, and a
statement from a Mexican bank showing a balance of $118,569.18.
All this evidence was more than sufficient to support Diana Marquez’s
conviction for conspiracy to possess with intent to distribute marijuana.
With respect to the importation count, there was testimony from
Sepulveda that Diana Marquez would call Mario Marquez to inform him what
traffic lane at the border station was harder that day to use for importation.
Sepulveda testified that she “played a role of importing marijuana and drugs
through the port of entry.” He also testified that drug couriers, after crossing
the border from El Paso into Juarez, frequently saw Diana Marquez at the
“yellow and green house,” where one saw her holding a six-inch stack of money,
with another such stack nearby.
This mass of evidence fully supports a finding that Diana Marquez was not
just present during the conspiracy. Her presence and association is part of the
circumstantial evidence that she voluntarily joined the conspiracy; that a party
does not physically possess drugs and plays a minor role – though whether
Diana Marquez’s role should be labeled “minor” is debatable – does not defeat
conviction. United States v. Ayala, 887 F.2d 62, 67-68 (5th Cir. 1989). It is true
that evidence of involvement in a conspiracy can be too attenuated to sustain a
conviction. United States v. Gardea-Carrasco, 830 F.2d 41, 44-45 (5th Cir. 1987).
That defect does not exist in the evidence against Diana Marquez. The
testimony against her did not describe a person unluckily present on only a
single occasion. Her knowledge of the illegal activity and assistance to its
success were sufficiently proven.
We affirm the convictions on the drug counts.
1. b. Evidence Sufficiency on Diana Marquez’s Money Laundering Counts
Diana Marquez next challenges her convictions for conspiracy to commit
money laundering, and for two counts of engaging in monetary transactions with
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No. 07-50513
criminally derived property in excess of $10,000. See 18 U.S.C. § 1956(h),
1956(a)(1)(B)(i), (ii) (money laundering); 18 U.S.C. § 1957 (criminal proceeds).
The conspiracy count was the same as that charged against Fernandez.
She needed to be engaged in a conspiracy with at least one other person: (1) to
conduct or attempt to conduct a financial transaction; (2) with the knowledge
that it involved proceeds of specified unlawful activity; and (3) with the
knowledge that the transaction was designed in whole or in part to conceal or
disguise the nature, source, ownership, or control of the proceeds, or to avoid a
federal or state reporting requirement. See Adair, 436 F.3d at 524-25.
Marquez primarily argues that the evidence of her knowledge was
missing. In her argument, she was “a housewife kept in the dark,” who had no
knowledge of the criminal origins of the funds she used. There certainly was
evidence to dispel the darkness that she argues surrounded her. She accepted
substantial money and rent-free housing from Fernandez. Sepulveda testified
that she told him she was going to pick up deeds to property that had been
“washed to the kid’s names.” She and Fernandez participated in a property-
holding entity called the “Marquez land trust.” She personally purchased houses
with large sums of unexplained cash, including a house purchased in her son’s
name. The banking records in her locker at work also would have shed some
light on the money laundering conspiracy.
Given the evidence against Fernandez, and the sufficiency of the evidence
of Diana Marquez’s involvement in the drug conspiracy, jurors could reasonably
infer that she was aware of the origins of the money Fernandez gave her when
her husband was in prison, and also knew of Fernandez’s role in the Organiza-
tion. After all, she referred to Fernandez as “the real estate person,” whom she
had to meet in order to get “washed” deeds to property. Further, the jury could
have drawn an inference of guilt from the purchase of the house in her son’s
name. The evidence was sufficient for a conviction on this count.
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No. 07-50513
Diana Marquez also was charged with the knowing use of criminal
proceeds in relation to her purchases in 2005 of two houses in her 17- or 18-year-
old son’s name in El Paso. See 18 U.S.C. § 1957. Payment for one was with
$75,000 in cash; for the other, she provided $21,000 in assorted money orders
and cashier’s checks. Diana Marquez does not dispute that she purchased the
houses, but she argues the government failed to show the origins of the money.
She claimed the money for one came from a gift from Mario Marquez to their son
on his high school graduation, and for the other the funds were from the son’s
selling of cars given to him by a member of the Organization described as Mario
Marquez’s “right-hand man,” at Mario’s direction. She again argues that the
money could have come from Mario’s ranching and farming operations just as
well as from marijuana smuggling, and that since she had no knowledge of any
drug activity, she could not know where the money came from.
The evidence was that Mario Marquez had little legitimate income. Diana
Marquez’s salary was about $21,000 per year. There was testimony that she
referred to her “washing” money through her children. A jury’s reasonable
credibility choices, given the totality of the evidence about her involvement in
the Organization generally, the unusual nature of a $75,000 cash transaction,
and her other connections to money laundering, would support her conviction.
We affirm the money laundering convictions.
2. Severance of Diana Marquez
Like Fernandez, Diana Marquez argues that she suffered unfair prejudice
because of the joint trial. As we noted when discussing this issue when it was
raised by Fernandez, there is a danger of prejudice towards a defendant whose
co-defendants are charged with violent acts with which she has no connection.
Cortinas, 142 F.3d at 248. The violent act – conspiracy to commit murder – that
she wishes not mentioned was charged against her brother-in-law, Hector
Marquez-Ramos. The government’s evidence placed Diana Marquez in the
19
No. 07-50513
vicinity of the Mexican house where the murder occurred the day before it
happened. There was evidence that she aided her husband Mario Marquez in
his pursuit of Sepulveda, who fled the house after his mother was seized. Rather
differently, we found a severance required in Cortinas when members of a
conspiracy were jointly tried with co-defendants whom they did not know and
whose terms as co-conspirators did not overlap with their own. Id.
Diana Marquez has not shown that the district court’s refusal to sever
resulted in a specific trial right being infringed or jurors being unable to make
a reliable determination of guilt in her case. Severance was not required.
3. Sentencing Error as to Diana Marquez’s Drug Counts
The district court found that Diana Marquez was responsible for 48,751.5
kilograms of marijuana. Under the Sentencing Guidelines, that quantity
resulted in a range of 360 months to life. Her sentence was 360 months.
Diana Marquez asserts that this drug quantity could not have resulted
from activity “reasonably foreseeable” to her as a member of the conspiracy. See
U.S.S.G. § 1B1.3(a)(1)(B); United States v. Carreon, 11 F.3d 1225, 1230 (5th Cir.
1994). Reasonable foreseeability does not require proof of knowledge of specific
quantities; a defendant with an “obvious understanding of the general breadth
of the drug enterprise” may be held liable for the full amount involved. United
States v. Duncan, 191 F.3d 569, 576 (5th Cir. 1999). We have already discussed
the evidence that supports Diana Marquez’s knowledge of the breadth of the
conspiracy. We also note that the government in fact consented to halving the
drug amount attributed to the conspiracy as a whole.
Marquez argues that her case is like one in which we found procedural
error when a “district court had failed to make an express finding that the
conspiratorial activity at issue was reasonably foreseeable as required” by the
Guidelines, and noted that Federal Rule of Criminal Procedure 32 requires the
district court to make findings about contested facts in the Presentence Report.
20
No. 07-50513
Carreon, 11 F.3d at 1230-31. On the other hand, district courts need not
ritualistically detail each possible finding. When “the findings in the PSR are
so clear” that guesswork by the reviewing court is unnecessary, the sentencing
judge may “make implicit findings by adopting the PSR.” Id. at 1231. Here, it
cannot be said, as was the case in Carreon, that Marquez makes “voluminous”
or particular objections to the multiple, specific findings of various drug
quantities from the PSR. The district court, in rejecting her objection to the
PSR, did not use the phrase “reasonably foreseeable,” although Marquez’s
attorney had used it just before the ruling. We find the court made a sufficiently
clear ruling on the issue. Accordingly, there was no procedural error in the
calculation.
The next argument is that the district court failed to consider the disparity
in her sentence and those of her more culpable co-conspirators who pled guilty.
“[T]he need to avoid unwarranted sentence disparities among defendants with
similar records who have been found guilty of similar conduct,” is one of the
factors a sentencing judge must consider. 18 U.S.C. § 3553(a)(6). A within-
Guidelines sentence is presumptively reasonable on appeal. King, 541 F.3d at
1145 n.1. We have held that “concern about unwarranted disparities is at a
minimum when a sentence is within the Guidelines range.” United States v.
Willingham, 497 F.3d 541, 545 (5th Cir. 2007). Marquez does not inform us of
the offenses for which the other defendants she lists were convicted, so we
cannot compare the similarity of their conduct. Moreover, she does not cite any
authority that found a within-Guidelines sentence (indeed, at the bottom of the
Guidelines range) unreasonable on a similar basis. The district court did not
commit clear error in this aspect of its sentencing.
4. Sentencing Error as to Diana Marquez’s Money Laundering Count
Along similar lines, Marquez objects to the disparity between her sentence
and Fernandez’s on the money laundering counts. Fernandez received a total
21
No. 07-50513
sentence of 160 months, while she received the statutory maximum, 240 months.
This was because the district court calculated her Guidelines range using a
cross-reference to her drug convictions, and applied “[t]he offense level for the
underlying offense [drug conspiracy] from which the laundered funds were
derived.” U.S.S.G. § 2S1.1(a)(1). Fernandez was not convicted of drug crimes,
and thus was sentenced based on a different Guideline. Id. § 2S1.1(a)(2).
This objection was not made at sentencing, so review is for plain error.
United States v. Peltier, 505 F.3d 389, 391 (5th Cir. 2007). Marquez’s argument
is cursory and cites no authority for the proposition that the different sentences
create reversible error. Given that Fernandez was not convicted of the drug
conspiracy offenses, there was a reasonable basis for the district court to take
different courses in the two sentencings.
Marquez’s convictions and sentence are affirmed.
C. Hector Leonel Marquez-Ramos
Hector Marquez-Ramos was convicted of the most serious charge of the
three defendants, conspiracy to murder in a foreign country. See 18 U.S.C. §
956(a)(1). He was charged in connection with the murder of Maria Eliza Liuzza
in Juarez, Mexico. He was also convicted of four drug counts: conspiracy to
possess with intent to distribute 1000 kilograms or more of marijuana, in
violation of 21 U.S.C. §§ 846, 841(a)(1), and 841(b)(1)(A)(vii); conspiracy to
import 1000 kilograms or more of marijuana, in violation of 21 U.S.C. §§ 952(a),
960(a)(1), and 960(b)(1)(G); possessing with intent to distribute 100 kilograms
or more of marijuana, in violation of 21 U.S.C. § 841(a)(1) and 841(b)(1)(B)(vii);
and distributing 1000 kilograms or more of marijuana with the intent that it be
imported into the United States, in violation of 21 U.S.C. § 959.
He raises several issues regarding his conviction and his sentence, which
we now examine.
22
No. 07-50513
1. Evidence Against Marquez-Ramos on Conspiracy to Murder
Marquez-Ramos first challenges the sufficiency of the evidence on the
count regarding conspiracy to murder. This is the relevant statutory language:
Whoever, within the jurisdiction of the United States, conspires
with one or more other persons, regardless of where such other
person or persons are located, to commit at any place outside the
United States an act that would constitute the offense of murder . . .
shall, if any of the conspirators commits an act within the jurisdic-
tion of the United States to effect any object of the conspiracy, be
punished as provided in subsection (a)(2).
18 U.S.C. § 956(a)(1).
The offense can be divided into four elements relevant to the facts of this
case: (1) Marquez-Ramos and at least one other person agreed to murder Maria
Elida Liuzza; (2) he knew the unlawful purpose of the agreement and joined it
willingly; (3) one of the conspirators committed at least one overt act in the
United States furthering the conspiracy; and (4) at least one of the conspirators
was within the jurisdiction of the United States when that person conspired. See
United States v. Wharton, 320 F.3d 526, 537-38 (5th Cir. 2003).
Marquez-Ramos argues that the government failed to meet three of these
four elements. First, he argues there was no showing that any of the conspira-
tors were within the jurisdiction of the United States when the agreement was
made; second, that there was insufficient evidence that any agreement to kill
Liuzza had been made at all; and third, that no overt act had occurred. He also
argues that no showing was made that Liuzza was killed by “choking or
beating,” as alleged in the indictment.
We first explain in some detail the government’s evidence of the murder
conspiracy. Hector Marquez-Ramos is the brother of Mario Marquez, the latter
being the head of a major drug enterprise that imported large quantities of
drugs, especially marijuana, from Mexico into the United States. In early 2005,
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No. 07-50513
the Organization was “in turmoil,” after increasingly frequent drug seizures,
difficulties in transmitting drugs and money, and infiltration by the authorities.
Marquez-Ramos, who had served as an “enforcer” for the Organization in the
past, was dispatched, with another member of the group, to Detroit, the
residence of Ricardo Sepulveda, the Organization’s main agent in the Midwest.1
The Organization had grown increasingly frustrated with Sepulveda over the
preceding months, as he had refused orders to carry out a murder for hire and
to pick up a large truckload of marijuana for distribution. He owed around a
million dollars to the Organization. While in Detroit, Marquez-Ramos had
Sepulveda show him where some lower level members of the Organization who
were suspected of stealing from the group lived. Marquez-Ramos told Sepulveda
that he planned to have them killed. While Marquez-Ramos was in Michigan,
Sepulveda told him he wanted to quit the Organization.
After Marquez-Ramos left the Midwest, Sepulveda received a call from
Mario Marquez asking him to go to Juarez, Mexico to “touch base” and smuggle
cash back into Mexico. Sepulveda took his mother with him. They arrived in El
Paso on February 13, 2005. When at a Marquez-controlled house in El Paso,
Marquez-Ramos and another Organization member, Esaul Guerrero, packed
bundles of cash into the door panels and console of Sepulveda’s truck. Sepulveda
and his mother that evening then crossed into Mexico.
On arrival at an Organization house in Juarez, Mexico known as the
“yellow and green house,” Sepulveda asked to be paid for the cash smuggling.
Mario Marquez said he would have to wait for another Organization member to
arrive. The next day, Sepulveda was once again told to wait another day. That
night there was a cookout at the yellow and green house. Mario Marquez told
Sepulveda that he was concerned that a member of the Organization in the
1
The testimony of Sepulveda, who pled guilty and testified for the government at trial,
is a major source of the information about the conspiracy to kill count.
24
No. 07-50513
Midwest, whom Sepulveda had brought into the Organization, had threatened
to go to the authorities. They also talked about Marquez-Ramos’s trip to the
Midwest. Sepulveda then told Mario, as he had earlier told Marquez-Ramos,
that he wanted to “pull out” of the Organization.
The next morning, Sepulveda and his mother wanted to leave and return
to the United States. Mario Marquez asked them to stay and have breakfast.
Marquez-Ramos took them to a restaurant. When they returned to the yellow
and green house, Sepulveda saw a man with a “wooden handle” outside. Later,
when he, his mother, Marquez-Ramos, and others were inside the living room,
yet another Organization member arrived and said he had been in a car
accident. Sepulveda and Marquez-Ramos went outside to see what had
happened, passing the putative accident victim and others on their way in.
Marquez-Ramos then “rushed” back inside, and Sepulveda realized there was
nothing wrong with the car. When he reentered the house, Sepulveda found his
mother, Maria Elida Liuzza, laying on the floor. One man was on top of her with
“an object in his hand,” while another Organization member washed his hands
in the kitchen. His mother was moaning, in pain, and out of breath.
Sepulveda immediately ran out of the house, pursued by some of the men.
He apparently was helped by a motorist to reenter the United States. Once
there, he went to the authorities. They taped a series of calls he made to Mario
and Diana Marquez; both Marquezes repeatedly asked him where he was.
Another witness testified that Mario Marquez subsequently told him that
Sepulveda’s mother was murdered, and that Sepulveda had “escaped.”
The government’s view of the evidence is that the jury could have found
that Marquez-Ramos was part of a conspiracy, hatched in the United States,
that had as its object the murder of Maria Elida Liuzza in Mexico. The
conspiracy was a late addition to a preexisting conspiracy to murder Sepulveda
in Mexico. There was evidence that Marquez-Ramos worked closely with Mario
25
No. 07-50513
Marquez, and that Marquez-Ramos had past “enforcement” duties that included
committing acts of violence against suspected traitors to the Organization. The
motive for Mario Marquez and Marquez-Ramos to kill Sepulveda would be the
disarray in the Organization, Sepulveda’s owing money to Mario Marquez,
Sepulveda’s having declined to undertake two jobs, and Sepulveda’s telling
Marquez-Ramos he planned to quit. The motive to kill his mother arose when
he arrived in El Paso with her. That placed her “naturally within the ambit of
the plan to kill,” because she could not safely be left alive.
Thus, the government’s theory was that Mario Marquez’s invitation for
Sepulveda to go to Juarez was a ruse for the planned murder. An overt act
occurred when Marquez-Ramos met Sepulveda in El Paso and loaded the
bundles of cash into his truck for smuggling into Mexico.
Another question is whether one of the conspirators was within the United
States when he conspired. The government offers two possible ways to answer
the question favorably. One is that jurors could have inferred that Marquez-
Ramos and Esaul Guerrero, “tacit[ly] or otherwise,” hatched the conspiracy to
kill Liuzza when both men were present in El Paso. They would have realized
it would be necessary to do so as part of the existing conspiracy to kill Sepulveda.
The other possibility is that Mario Marquez, at that time in Mexico, “would have
been informed . . . immediately” of Liuzza’s arrival with Sepulveda. An
understanding about the need for murder would have been reached with the El
Paso conspirators during an international phone call.
There is no evidence in the record of such a telephone call, though that one
was likely made is logical. We need not decide if such speculation suffices, as the
evidence was sufficient to sustain the conviction without the phone-call theory.
Substantial, if circumstantial, evidence exists that if there was a plan to murder
Sepulveda, his arrival in El Paso with his mother would have required
consideration immediately to be given as to her fate. One of the two alleged
26
No. 07-50513
conspirators who was in El Paso, Esaul Guerrero, while not indicted for the
murder in the final version of the indictment, was Mario Marquez’s stepson and
was indicted for drug activity with the Organization. Co-conspirators need not
be identified in the indictment. United States v. Thomas, 348 F.3d 78, 82-84 (5th
Cir. 2003). Jurors could have found that, while in El Paso, Marquez-Ramos did
agree with Guerrero to kill Liuzza in Mexico, satisfying the element of the
offense that the conspiracy be formed with someone in this country.
The closely related question is whether the jury could have found a
conspiracy to kill Liuzza at all. Given the evidence that Sepulveda owed Mario
Maruqez a large sum of money, the evidence regarding Marquez-Ramos’s and
the Organization’s tendency towards violence and murder as management tools,
and the eventual fate of Liuzza (and near-fate of Sepulveda), a reasonable jury
could find that the invitation to Juarez was a ruse to kill Sepulveda. Then, the
jury could have inferred that plan would have needed to include someone
Sepulveda brought with him. There was evidence that Sepulveda had brought
his mother on such trips in the past, so her arrival may not have been entirely
unanticipated. At least it was reasonable for jurors to conclude that the specific
plan to kill Liuzza was not finalized, because it could not have been, until she
arrived in El Paso.
Next, if Marquez-Ramos and Guerrero commenced their conspiracy to kill
Liuzza when they saw her arrive with Sepulveda, the packing of the cash into
Sepulveda’s vehicle in El Paso was an overt act in furtherance of the conspiracy.
Any encouragement to Sepulveda and his mother to continue on to Juarez, any
maintaining of the ruse by act or word, would also have been overt acts.
Finally, Marquez-Ramos’s argument that the government failed to prove
the “choking and beating” portion of the indictment is unpersuasive. What this
argument involves is a dispute about the “manner and means” by which the
murder was shown to have occurred. The government may even allege that the
27
No. 07-50513
“means by which the defendant committed the offense are unknown or that the
defendant committed it by one or more specified means.” Fed. R. Crim. P.
7(c)(1). Because stating the manner and means is not necessary indictment
language, what is alleged on that point is not essential. A “constructive
amendment” of an indictment “occurs when the jury is permitted to convict the
defendant upon a factual basis that effectively modifies an essential element of
the offense charged.” United States v. Adams, 778 F.2d 1117, 1123 (5th Cir.
1985). Marquez-Ramos does not explain how the asserted difference between
the indictment and the proof offered at trial modified an element of the offense,
so what happened here was at most a “variance,” not a constructive amendment.
Id.; United States v. Dentler, 492 F.3d 306, 313 (5th Cir. 2007).
In any event, we discern no error. A reasonable jury could have concluded
that Liuzza was beaten based on Sepulveda’s testimony that he saw one of the
assailants entering the house with a “wooden handle,” that another man was on
top of Liuzza with an object in his hand, and, perhaps most significantly, that
an axe handle and stained piece of carpet were recovered from the house by
Mexican authorities, and tested positive for Liuzza’s DNA.
We affirm Marquez-Ramos’s conviction for conspiracy to kill Maria Elida
Liuzza in a foreign country.
2. Evidence Against Marquez-Ramos on Drug Counts
Marquez-Ramos argues that the evidence was insufficient to convict him
on three of the four drug counts – the two conspiracy counts and the substantive
possession with intent to distribute count. We also address a slightly different
challenge Marquez-Ramos raises with respect to his Section 959 conviction.
With respect to the conspiracy counts, there was testimony that Marquez-
Ramos was a high-ranking officer who “was in charge of the money” for the
Organization. One witness had seen the Organization import “a little under a
ton” of marijuana on at least ten separate occasions. There were multiple
28
No. 07-50513
seizures of marijuana at the border of 150-180 pounds. Almost four tons of
marijuana was being moved through a Mexican house and drug depot known as
“The Castle” at any given time. In El Paso, between 1000 and 1500 pounds of
marijuana were shipped out on a daily basis for distribution within the United
States. Marquez-Ramos told Sepulveda that, while Mario Marquez was in jail,
he imported and exported drugs for the Organization. On another occasion, he
said he “controlled a lot of import and exports of the drugs coming in from
Mexico to the United States.” Mario Marquez told cash smugglers that they
could deliver to Marquez-Ramos rather than to him when he was not home.
Marquez-Ramos once gave Sepulveda $300,000 in cash to take back to Mexico,
and once helped carry at least $1.3 million to a Mexican bank for deposit. The
testimony about Marquez-Ramos’s violent “enforcer” role on behalf of the
Organization would have been evidence the jury could have taken into account
concerning his involvement in the conspiracies. Finally, the government
introduced evidence that a “drug ledger” at The Castle contained multiple
entries in Marquez-Ramos’s handwriting.
A reasonable jury could have found Marquez-Ramos guilty of the two
conspiracy counts.
The possession with intent to distribute count arose when a police officer
observed Marquez-Ramos and others buying what he thought were likely to be
drug packaging materials at a store in El Paso. The officer followed the group
on a circuitous route back to a house. Later, when Marquez-Ramos left in a
white van, the police stopped him. Apparently unaware of the surveillance,
Marquez-Ramos lied about where he had been. At the house, officers detected
the odor of unburnt marijuana and discovered just under 1,000 pounds of
marijuana. A subsequent investigation revealed Marquez-Ramos’s fingerprint
on an electric scale at the house.
29
No. 07-50513
Marquez-Ramos claims that the only real evidence against him was the
fingerprint, and invokes what he calls the “fingerprint only doctrine” as
requiring a finding that the evidence was insufficient. See United States v.
Lonsdale, 577 F.2d 923, 926 (5th Cir. 1978); United States v. Stephenson, 474
F.2d 1353, 1354-55 (5th Cir. 1973). If any such doctrine ever existed, it no longer
does, since both cases cited by Marquez-Ramos were decided under a former rule
applying a now-abandoned standard of review for convictions based solely on
circumstantial evidence. The two cases are no longer good law for that reason.
Gibson v. Collins, 947 F.2d 780, 782 (5th Cir. 1991). Regardless, here there was
considerably more evidence than Marquez-Ramos’s fingerprint alone, as our
recounting of the circumstances leading the police to the house indicates. A
reasonable jury could have found him guilty on this count.
We now examine the evidence on Marquez-Ramos’s distributing marijuana
in Mexico knowing it would be unlawfully imported into the United States. See
21 U.S.C. § 959. Marquez-Ramos argues that venue in the Western District of
Texas was improper, because the government failed to prove that Marquez
reentered the United States at the same place as the marijuana entered the
country. The statute, however, states only that a defendant is to be tried where
he or she enters the United States; it says nothing about the entry point of the
controlled substance. Id. § 959(c). Marquez-Ramos does not dispute that he
entered the United States at El Paso, which is in the Western District of Texas.
Accordingly, this argument lacks merit.
3. Marquez-Ramos’s Fourth and Fifth Amendment Claims
Marquez-Ramos argues that evidence seized in Mexico from the yellow and
green house and The Castle should be suppressed, and that he was entitled to
a mistrial since some of it had already been presented to the jury before he could
have known it was illegally obtained. This evidence included, from The Castle,
large quantities of marijuana, a “drug ledger” with Marquez-Ramos’s name in
30
No. 07-50513
it, and firearms. Recovered from the yellow and green house was evidence
involving Liuzza’s murder, including her driver’s license, a blood-stained axe
handle and carpet that tested positive for her DNA, and identification belonging
to Marquez-Ramos. At one point Marquez-Ramos made both Fourth and Fifth
Amendment arguments for suppression. At oral argument before this court, his
counsel explicitly disclaimed reliance on the Fourth Amendment. Thus, we
review only for a Fifth Amendment due process violation.
In considering the denial of a suppression motion, we review factual
findings for clear error and constitutional conclusions de novo. United States v.
Troop, 514 F.3d 405, 409 (5th Cir. 2008). The government argues that Marquez-
Ramos waited too long before objecting to the introduction of the evidence, thus
subjecting his claim to plain error review. We need not decide the question, as
the outcome is clear under either standard.
The factual basis for this claim is Sepulveda’s trial testimony, which
Marquez-Ramos claims shows American law enforcement agents sat idly by
while Mexican agents encouraged Sepulveda to lie and exaggerate his story in
order to obtain Mexican search warrants.
Marquez-Ramos’s due process argument relies primarily on a precedent
from this court. We found that due process was violated when an IRS agent
committed a deliberate deception by giving a literally true but misleading
answer to a question designed to discover whether an investigation was being
undertaken for criminal purposes. United States v. Tweel, 550 F.2d 297, 299
(5th Cir. 1977). Notably, Tweel relied on a case which stated that an “‘affirma-
tive misrepresentation’” by an agent must be shown, by a clear and convincing
standard of proof, in order to demonstrate that the government acted
impermissibly. Id. (quoting United States v. Prudden, 424 F.2d 1021, 1033 (5th
Cir. 1970)). Here, Marquez-Ramos does not allege that agents of this country
made any representations whatsoever, much less a misrepresentation. At best,
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No. 07-50513
his evidence is that they sat by while Mexican authorities induced a witness to
make false statements for use within the Mexican judicial system.
Substantive due process may forbid obtaining a conviction based on law
enforcement conduct that “shocks the conscience,” when the conduct is “brutal
and offensive to human dignity” and is among the “most egregious official
conduct.” Stokes v. Gann, 498 F.3d 483, 485 (5th Cir. 2007) (citation omitted).
Even taking as true Marquez-Ramos’s allegation that American law enforcement
agents were aware that their Mexican counterparts were inducing a witness to
lie in order to obtain a Mexican search warrant, that conduct does not sink to the
required depths. We find no error in the denial of the motion to suppress.
4. Marquez-Ramos’s Limiting Instruction Issue
Marquez-Ramos took the stand to testify in his own defense. The district
court granted his motion to provide testimony, and thus be cross-examined, only
on the conspiracy to kill charge. The district court then told the jury that they
should “draw no inference whatsoever” from Marquez-Ramos’s “election not to
testify as to the other counts.”
Before entering into the precise fray between the parties on this issue, we
find that the district judge’s order was not a proper limit on the examination
even of a defendant. “Cross-examination should be limited to the subject matter
of the direct examination and matters affecting the credibility of the witness.
The court may, in the exercise of discretion, permit inquiry into additional
matters as if on direct examination.” Fed. R. Evid. 611(b). A criminal defendant
who testifies waives the privilege against self-incrimination to the extent of
relevant cross-examination. See Johnson v. United States, 318 U.S. 189, 195
(1943). In that dated but still authoritative opinion, the Supreme Court quoted
Professor Wigmore: a defendant’s “voluntary offer of testimony upon any fact is
a waiver as to all other relevant facts, because of the necessary connection
between all.” Id. (quoting 8 W IGMORE, E VIDENCE § 2276(2) (3d ed. 1940)). Once
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a defendant testified voluntarily, he “waived his fifth amendment right and
became obligated, as any other witness, to answer all relevant questions.”
United States v. Harper, 802 F.2d 115, 119 (5th Cir. 1986) (quoting United States
v. Brannon, 546 F.2d 1242, 1246 (5th Cir. 1977)). The place at which the district
judge drew his line for cross-examination, namely, between counts of the
indictment, was invalid. The proper line is between what on cross-examination
is relevant and irrelevant to the scope of the direct examination.
The government does not here challenge the limitation of its examination.
It is this defendant who alleges that another aspect of the district court’s actions
was prejudicial. Marquez-Ramos claims that the district court’s instructions to
jurors not to draw any inferences was error and entitled him to a mistrial. The
argument is that the comment improperly drew attention to his decision not to
testify on the other counts. When the defendant raises an issue such as this at
trial, the standard of appellate review for the denial of a mistrial is one of an
abuse of discretion. United States v. Akpan, 407 F.3d 360, 366 (5th Cir. 2005).
We find no error, as the kind of comment made by the district court has
been endorsed by the Supreme Court. Lakeside v. Oregon, 435 U.S. 333, 338-39
(1978). While it is impermissible to comment adversely on a defendant’s silence,
a “cautionary instruction” informing jurors not to draw an adverse inference
from a defendant’s failure to testify is permissible. Id. The unusual events in
this trial that underlay the comment do not change the validity of it. There was
no abuse of discretion in failing to grant a new trial.
5. Marquez-Ramos’s Sentencing Issue
Marquez-Ramos next disputes a sentencing enhancement. The district
court found Marquez-Ramos to be “an organizer or a leader of a criminal activity
that involved five or more participants.” See U.S.S.G § 3B1.1(a). This increased
his Guidelines range by four levels.
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Marquez-Ramos argues that he had no decision-making authority and
recruited no accomplices. He also alleges that the government did not have
evidence of the size of his “share” of the Organization. There was evidence,
though, that Marquez-Ramos had major responsibilities on the financial side of
the Organization, overseeing the disposition of hundreds of thousands of dollars
in cash at a time. There was testimony that he largely ran the Organization
while Mario Marquez was in prison during much of the 1990s. Marquez-Ramos
was in charge of the group arrested after leaving the El Paso “stash house”
during the incident that led to the possession with intent to distribute
conviction. Finally, there was testimony pointing to his role as an enforcer for
the Organization.
Given this testimony, and the emphasis in the Guideline application note
on the “exercise of decision making authority,” “nature of participation,” “degree
of participation in planning or organizing the offense,” “nature and scope of the
illegal activity,” and “degree of authority exercised over others,” it was not clear
error for the district court to have found that Marquez-Ramos met the criteria
for the leadership enhancement. We affirm Marquez-Ramos’s sentence.
III. CONCLUSION
For the foregoing reasons, the convictions and sentences of the three
defendants are AFFIRMED.
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