United States v. Febus, Roberto , 218 F.3d 784 ( 2000 )

In the
United States Court of Appeals
For the Seventh Circuit
Nos. 98-1252, 98-2053, 98-2508,
98-2709 & 98-4060
United States of America,
Plaintiff-Appellee,
v.
Roberto Febus, a/k/a Bobby Santos; Efrain Santos,
a/k/a Frank Santos, a/k/a Puerto Rican Frank;
Benedicto Diaz, a/k/a Ito; Jose Santos; and
Angel Morales, a/k/a Wiso,
Defendants-Appellants.
Appeals from the United States District Court
for the Northern District of Indiana, Hammond Division.
No. 96 CR 44--James T. Moody, Judge.
Argued/* October 28, 1999--Decided July 14, 2000
Before Ripple, Manion, and Evans, Circuit Judges.
Manion, Circuit Judge. Efrain Santos, Roberto
Febus, Benedicto Diaz, Angel Morales, and Jose
Santos ran an illegal lottery. For their roles, a
jury convicted Efrain Santos and Febus of
conspiracy to conduct an illegal gambling
enterprise, and of conducting an illegal gambling
enterprise. The jury also convicted Efrain Santos
of laundering the proceeds of the illegal
lottery. Diaz and Morales pleaded guilty to
conspiracy to launder the gambling proceeds. And
Jose Santos/1 was convicted of conspiracy and of
aiding and abetting an illegal gambling business.
All defendants appeal, and we affirm.
I.
Efrain Santos operated an illegal lottery, known
as a "bolita," in East Chicago, Indiana from the
1970’s until 1994. He based the bolita’s winning
numbers on the daily Pick Three and Pick Four
Illinois lottery games, and on the Puerto Rican
Lottery. He first worked for a man named Ken Eto
who ran a larger bolita in Indiana and Illinois
in the late 1960’s and early 1970’s, until Santos
took over the Indiana operation in the 1970’s.
While Santos was in prison on narcotics charges
during the late 1970’s and early 1980’s, Roberto
Febus served as the bolita’s interim leader until
Santos returned in 1984.
In Santos’s bolita, runners accepted bets
primarily in bars and restaurants in East
Chicago, withheld their commissions from the
cash, and delivered the money to the collectors,
Benedicto Diaz and Angel Morales. Diaz and
Morales collected the betting slips and money
from the runners at a bar and delivered the
proceeds to Santos. Santos used some of the
proceeds to pay the salaries of Diaz and Morales,
and to pay the bolita’s winners.
The FBI and IRS began investigating the bolita
in January 1992. On March 30, 1993, the FBI
searched Santos, his residences and vehicles, as
well as Diaz and Morales and their vehicles, and
discovered betting slips, ledgers, cash and other
evidence of a gambling enterprise. Although the
lottery shut down for a couple of weeks after the
search, Diaz and Morales resumed the operation by
collecting at a different location. On June 22,
1993, the FBI searched Santos, Diaz and Morales
again, and found further evidence of the illegal
gambling scheme. But even after this second
search, the lottery continued. And after
conducting a third search on October 12, 1993,
the FBI discovered more betting slips, cash, and
other evidence of the bolita.
Presented with this and other evidence, a
federal grand jury returned a ten-count
indictment against Santos, Febus, Diaz and
Morales. Count 1 charged them with conspiracy to
conduct an illegal gambling business from January
1989 to December 1994, in violation of 18 U.S.C.
sec. 371. Count 2 charged the defendants with
conducting an illegal gambling business, in
violation of 18 U.S.C. sec. 1955. Count 3 charged
Santos, Diaz, and Morales with conspiracy to use
the proceeds of an illegal gambling business to
promote the carrying on of the business, in
violation of 18 U.S.C. sec. 1956(h). Count 4
charged Santos and Diaz with money laundering by
completing a financial transaction with the
proceeds of the illegal gambling business with
the intent to promote the carrying on of the
business, in violation of 18 U.S.C. sec.
1956(a)(1)(A)(i). Count 5 charged Santos and
Morales with money laundering to promote the
gambling business, in violation of 18 U.S.C. sec.
1956(a)(1)(A)(i). And Counts 6-10 constituted
more money laundering charges.
A jury convicted Santos of Counts 1 through 5,
and Febus of Counts 1 and 2; the district court
sentenced Santos to 210 months in prison, and
Febus to 30 months in prison.
Diaz pleaded guilty to Count 3 and, as part of
his plea agreement, the government dismissed the
other counts against him and agreed to recommend
a downward departure (under sec.5K1.1 of the
Sentencing Guidelines) in exchange for his
truthful testimony against his co-defendants.
Diaz testified at Santos’s trial, but the
government declined to file the sec.5K1.1 motion,
concluding that his testimony was inconsistent,
untruthful, and bolstered his co-defendants’
defense. Diaz moved to withdraw his plea
agreement, alleging that the government breached
it by failing to file the sec.5K1.1 motion, but
the district court denied his motion and
sentenced him to 108 months in prison.
Like Diaz, Morales pleaded guilty to Count 3,
entered into an identical plea agreement, and
testified at Santos’s trial. The government filed
the sec.5K1.1 motion, and then called him to
testify at Santos’s sentencing hearing as well.
After Morales testified inconsistently at the
sentencing hearing, the government moved to
withdraw its sec.5K1.1 motion, which the district
court granted. Morales filed a motion to
reconsider, which the district court denied and
sentenced him to 151 months in prison. This
consolidated appeal followed.
II.
A. Efrain Santos
Efrain Santos appeals only his money laundering
convictions, arguing that the evidence was
insufficient to convict him of money laundering
because his cash payments to the bolita’s
collectors and winners were essential
transactions of the illegal gambling business,
and thus cannot also constitute transactions
under the promotion provision of the money
laundering statute, 18 U.S.C. sec.
1956(a)(1)(A)(i).
"A defendant bears an extremely heavy burden in
attempting to overturn a conviction on the basis
of insufficient evidence;" United States v. Vega,
72 F.3d 507, 513 (7th Cir. 1995), and we will
reverse a conviction "only if, after viewing the
evidence in the light most favorable to the
government, we determine that no rational trier
of fact could have found the defendant guilty
beyond a reasonable doubt." Id. Title 18 U.S.C.
sec. 1956(a)(1)(A)(i) of the money laundering
statute provides:
Whoever, knowing that the property involved in a
financial transaction represents the proceeds of
some form of unlawful activity, conducts or
attempts to conduct such a financial transaction
which in fact involves the proceeds of specified
unlawful activity--
(A)(i) with the intent to promote the carrying on
of specified unlawful activity [shall be
punished].
To prove money laundering under this promotion
provision, the government must show that the
defendant: 1) conducted a financial transaction
with the proceeds of an illegal activity; 2) knew
that the property represented illegal proceeds;
and 3) conducted the transaction with the intent
to promote the carrying on of the unlawful
activity. United States v. Emerson, 128 F.3d 557,
561 (7th Cir. 1997).
While Santos acknowledges that he used illegal
proceeds to pay the bolita’s collectors and
winners, he contends that his transactions merely
completed the substantive offense of illegal
gambling, and thus did not "promote the carrying
on" of the bolita. He claims that since the money
laundering statute created the separate crime of
money laundering, it only punishes the practice
of reinvesting the proceeds of an already
completed unlawful activity to promote the
expansion of that unlawful activity, and thus the
government failed to prove that his transactions
satisfied the statute’s promotion requirement.
A transaction satisfies the promotion provision
of the money laundering statute if it constitutes
"the practice of plowing back proceeds of [the
illegal activity] to promote that activity."
United States v. Jackson, 935 F.2d 832, 842 (7th
Cir. 1991). In Jackson, we affirmed a money
laundering conviction in which a defendant,
Joseph Davis, used the proceeds of drug
transactions to purchase telephone paging beepers
that were used to contact drug couriers and
instruct them on the location of additional money
pickups. We determined that since Davis purchased
the beepers with the intent to promote the
continued prosperity of his criminal enterprise
by plowing money back into his drug operation, he
violated sec. 1956(a)(1)(A)(i) of the money
laundering statute. Id. at 841. According to
Jackson, therefore, the money laundering statute
created a separate crime of money laundering that
is distinct from the substantive offense (in this
case gambling) that initially generated the
illegal funds, see United States v. Heaps, 39
F.3d 479, 486 (4th Cir. 1994); and it punishes
transactions that promote the continued
prosperity of the underlying offense. See United
States v. Conley, 37 F.3d 970, 979 n. 12 (3d Cir.
1994) (evidence of the defendant’s use of illegal
gambling proceeds to pay vendors to service
illegal poker machines constituted an offense
under the promotion provision of 18 U.S.C. sec.
1956(a)(1)).
In this case, the government established that
Santos reinvested the bolita’s proceeds to ensure
its continued operation for over 5 years, well
beyond the 30 days required to complete the
substantive offense of illegal gambling under 18
U.S.C. sec. 1955. Furthermore, his own records
show that the income to his bolita expanded from
approximately $250,000.00 per year for the years
1989 to 1992, to $330,000.00 for 1993, and up to
$410,000.00 for 1994. His payments to his
collectors, Diaz and Morales, compensated them
for collecting the increased revenues and
transferring those funds back to him. And his
payments to the winning players promoted the
bolita’s continuing prosperity by maintaining and
increasing the players’ patronage. See United
States v. Cole, 988 F.2d 681, 684 (7th Cir. 1993)
(the defendant’s payment of "interest" to
defrauded investors promoted the fraudulent
investment scheme.). Therefore, the government
produced sufficient evidence to enable a
reasonable jury to find Santos guilty of money
laundering beyond a reasonable doubt./2
B. Benedicto Diaz
Benedicto Diaz appeals the district court’s
denial of his motion to withdraw his plea
agreement, arguing that since his testimony
fulfilled his side of the bargain by assisting
the convictions of his co-defendants, the
government breached the agreement by failing to
file a downward departure motion for him under
sec.5K1.1./3
We review the district court’s denial of a
motion to withdraw a guilty plea for abuse of
discretion. United States v. Schilling, 142 F.3d
388, 394 (7th Cir. 1998). A court may permit a
defendant to withdraw a guilty plea if the
defendant provides "any fair and just reason."
Id. at 398 (citing United States v. Abdul, 75
F.3d 327, 329 (7th Cir. 1996)). And we will
uphold the district court’s findings about
whether the defendant has provided a fair and
just reason unless they are clearly erroneous.
Schilling, 142 F.3d at 398.
In this case, Diaz’s plea agreement provided in
part:
I further understand that at the time of
sentencing, in exchange for my cooperation, the
United States of America will file a departure
motion with the Court pursuant to guideline
section 5K1.1 and Title 18, United States Code,
Section 3353(e); I further understand that if the
Court accepts this plea agreement and grants the
government’s 5K1.1 motion, the government will
recommend a departure which places my final
guideline sentencing range between level 1 to
level 15 on the guideline sentencing table.
However, I understand that this recommendation is
based upon my continuing cooperation with the
United States and my agreement to always provide
truthful and complete information and testimony;
I also understand that if I fail to provide
complete, truthful and candid information and
testimony as required by this plea agreement, the
government will not be obligated to file the
departure motion and I will not be allowed to
withdraw my guilty plea.
(Plea Agreement para.9(i).) At his plea hearing,
Diaz also acknowledged that if he failed to
testify "fully and completely and truthfully,"
the government would have no obligation to file
the departure motion. Thus, under the terms of
the agreement, the government validly conditioned
its obligation to file the sec.5K1.1 motion on
Diaz’s "complete, truthful and candid" testimony.
See United States v. Lezine, 166 F.3d 895, 901
(7th Cir. 1999).
At the trial, Diaz testified that he never
really thought that the lottery was illegal./4
The district court found that Diaz’s trial
testimony was inconsistent with earlier
statements he made under oath, and bolstered the
defense of his co-defendants. His trial testimony
contradicted: 1) his plea hearing (where he
admitted that he knowingly conspired to launder
the proceeds of an illegal enterprise); 2) his
earlier statements to co-conspirators about his
fear of going to jail for participating in the
lottery; and 3) his earlier admission to an FBI
agent that he knew that the bolita was illegal
after the FBI’s March 30, 1993 search. And the
fact that Diaz moved his collection operations to
another bar after the FBI search further
demonstrates that he knew that the lottery was
illegal at that time. Moreover, his trial
testimony supported Santos’s defense theory that
Santos and his co-conspirators had always thought
that the lottery was legal. Therefore, the
district court did not commit clear error in
finding that Diaz failed to testify completely or
truthfully.
The "overarching theme" of Diaz’s plea agreement
was his complete, truthful, and candid testimony.
See United States v. Ramunno, 133 F.3d 476, 483
(7th Cir. 1998). Since he failed to fulfill his
part of the bargain, and supported the defense of
his co-defendants instead, the government was not
required to move for a downward departure
pursuant to sec.5K1.1. Diaz’s breach of the plea
agreement does not constitute a "fair and just"
reason to withdraw his plea, and thus the
district court did not abuse its discretion in
denying his motion.
C. Angel Morales
On appeal, Morales argues that he was denied: 1)
his right to an interpreter in violation of the
Court Interpreter’s Act; 2) his Sixth Amendment
right to counsel when he appeared to testify at
Santos’s sentencing hearing; and 3) his Sixth
Amendment right to the effective assistance of
counsel.
1. The Court Interpreter’s Act.
Morales argues that since English is not his
primary language, he was denied his right to an
interpreter in violation of the Court
Interpreter’s Act, 28 U.S.C. sec. 1827. The Act
requires the court to provide an interpreter for
a defendant who primarily speaks a language other
than English, 28 U.S.C. sec. 1827(d)(1)(A); its
purpose is to ensure that the defendant can
comprehend the proceedings and communicate
effectively with counsel. United States v.
Sanchez, 928 F.2d 1450, 1455 (6th Cir. 1991).
Since this issue "hinges on a variety of factors,
including the defendant’s knowledge of English
and the complexity of the proceedings and
testimony, the trial judge, who is in direct
contact with the defendant, must be given wide
discretion." Valladares v. United States, 871
F.2d 1564, 1566 (11th Cir. 1989); see also
Sanchez, 928 F.2d at 1455.
Morales first contends that he was unable to
comprehend his plea colloquy without an
interpreter, and thus he did not knowingly and
voluntarily waive his right to appeal his
sentence. According to Morales, the following
exchange demonstrates that it was difficult for
him to comprehend his waiver:
Q And if I [the district court] sentence you
within the appropriate range, are you giving up
or waiving your right to appeal your sentence on
any ground and also agreeing not to contest your
sentence in any post-conviction proceeding?
A No.
Q You’re not. Read paragraph M and see if you
want to change that answer. (Conference between
counsel and client, not within hearing)
A Yeah, I--my right to appeal.
(Tr. 23-24.)
The complete transcript of his plea hearing,
however, shows that he understood the
proceedings. At the start of the hearing, the
court asked Morales whether he can "speak, read,
write and understand English," and he answered,
"I get by." He also confirmed that he fully
discussed his indictment and guilty plea with his
counsel. When the court asked him if he wanted to
review the plea agreement with his attorney once
more before the court proceeded with further
questions, he declined the opportunity. After
Morales consulted with his attorney, the court
carefully reviewed the waiver with him again to
confirm that he understood that provision:
Q Okay. If you’re sentenced within the
appropriate guideline range, as I understand this
agreement, you are expressly giving up your right
to appeal your sentence and you’re also giving up
your right to contest your sentence under any
post-conviction proceeding, is that true?
A Yes, sir.
Q Okay. Do you understand what all that means?
A Yes.
(Tr. 24.) The court continued:
Q Do you fully understand the terms of this plea
agreement that we went over?
A Yes, sir.
Q No doubt about it?
A No doubt about it, sir.
(Tr. 25-26.) Again, the court confirmed that
Morales understood that he was waiving his right
to appeal:
Q Now, normally, under certain circumstances, you
or the Government would have the right to appeal
any sentence that I impose. But you do
understand, sir, that by entering into your plea
agreement with the Government and entering your
plea of guilty here today, you are giving up your
right to appeal your sentence?
A Yes, sir.
Q We’ve gone over that before. Just want to make
sure you understand that?
A Yes, I understand.
(Tr. 30.) And the following exchange occurred at
the conclusion of the court’s thorough colloquy:
Q Do you have any questions of me about anything
you and I talked about here this morning?
A No, sir.
Q You understand everything?
A I understand.
Q Fully and completely?
A No doubt about it.
Q No doubt about it?
A No doubt about it.
(Tr. 44-45.)
Morales’s clear and responsive answers
throughout the colloquy demonstrate that he
comprehended the proceedings, communicated
effectively with his counsel, and knowingly and
voluntarily waived his right to appeal his
sentence. Thus, the district judge did not abuse
his "wide discretion" by failing to appoint an
interpreter to assist Morales at his plea
hearing.
At the subsequent trial, however, the government
ensured that Morales testified through an
interpreter after he stated that it was difficult
for him to speak English, which he could
understand only "a little bit." But when he later
testified for the government at Santos’s
sentencing hearing, he did so without an
interpreter; and according to Morales, that
caused him to become confused, and to
inadvertently testify inconsistently with his
prior statements and thus squander his downward
departure.
At his plea hearing and at the trial, Morales
testified that he began collecting bets for
Santos in his bolita in 1984. But at Santos’s
sentencing hearing, Morales testified that it was
Roberto Febus (not Santos) who hired him to work
in the bolita in 1984, and that Santos did not
get involved until late 1987 or early 1988.
Moreover, when Morales testified in English at
Santos’s sentencing hearing, he affirmed that he
was positive that Santos started with the bolita
in late 1987 or early 1988, because he recalled
that it was after the date of his daughter’s
wedding on March 28, 1987. The government
concluded that Morales’s testimony was
inconsistent, untruthful,/5 and material to the
issue of Santos’s sentencing, and thus moved to
withdraw its sec.5K1.1 recommendation, which the
district court granted.
The record demonstrates that Morales’s testimony
at Santos’s sentencing hearing was deliberate,
and not the result of confusion or mistake. His
testimony that Santos was involved in the bolita
in 1984 was consistent at his plea hearing
(without the aid of an interpreter) and at the
trial (with an interpreter). At Santos’s
sentencing hearing, the fact that Morales’s
testimony linked Santos’s involvement with the
bolita to sometime after his daughter’s wedding
day in 1987 (a special and memorable occasion for
Morales) shows that his testimony was
intentional, and not the result of a
misunderstanding. And finally, when Morales
claimed that he had difficulty speaking and
understanding English at his own sentencing
hearing (which occurred after Santos’s sentencing
hearing), the district judge (who also presided
at Morales’s plea hearing, at the trial, and at
Santos’s sentencing hearing) responded that he
and Morales "have understood each other from the
get-go. Every time I see him, he speaks English
and he understands me. I have had no indication
in the past that was not the case." While we
acknowledge that the conflicting evidence on this
issue makes it difficult to resolve, we conclude
that Morales had a sufficient command of English
to comprehend his proceedings and to testify
effectively, and thus was not entitled to an
interpreter under the Court Interpreter’s Act./6
2. Sixth Amendment right to counsel.
Morales next argues that his attorney’s failure
to appear and represent him at Santos’s
sentencing hearing violated his Sixth Amendment
right to counsel. The Sixth Amendment guarantees
the defendant the right to counsel at every
critical stage of "the proceedings against him,"
Coleman v. Alabama, 399 U.S. 1, 7 (1970) (quoting
Powell v. Alabama, 287 U.S. 45, 69 (1932)),
including, for example, the indictment,
arraignment, preliminary hearing, and sentencing.
United States v. O’Leary, 856 F.2d 1011, 1014
(7th Cir. 1988).
According to Morales, his appearance at Santos’s
sentencing hearing was a critical stage in his
proceedings because the government required his
testimony under the plea agreement, and thus his
downward departure was still at risk. But Morales
was merely a witness at Santos’s sentencing
hearing, which was not an adversarial process
"against him." And while he faced losing his
downward departure if he testified falsely, that
does not entitle him to his counsel’s assistance,
for the Sixth Amendment "is inapplicable to other
types of proceedings, even though they may have a
critical impact on the destiny of the
individual." Ganz v. Bensinger, 480 F.2d 88, 89
(7th Cir. 1973) ("[The Sixth Amendment] does not
broadly encompass every proceeding which may
result in a deprivation of liberty or
property."). Id.
3. Sixth Amendment right to the effective
assistance of counsel.
For the first time on appeal, Morales raises
several reasons why he was denied his Sixth
Amendment right to the effective assistance of
counsel. While "it is not our province as an
appellate court to make findings regarding
counsel’s performance when, unlike the district
court, we have not had the benefit of actually
having observed it," we will resolve this issue
"when, as here, both parties ask us to resolve
the matter, the question has been briefed and
argued, and we have the entire trial record
before us." United States v. Reiswitz, 941 F.2d
488, 495 (7th Cir. 1991)./7 "In reviewing a
claim of ineffective assistance, we apply the
familiar two-pronged test of Strickland v.
Washington, 466 U.S. 668 (1984): First, the
defendant must prove that his counsel’s
performance ’fell below an objective standard of
reasonableness,’ and second that but for
counsel’s deficiency, there is a reasonable
probability that the outcome would have been
different." United States v. Alex Janows & Co., 2
F.3d 716, 721 (7th Cir. 1993) (internal citations
omitted).
Morales first contends that his counsel was
ineffective by failing to refresh his
recollection of his prior testimony before
Santos’s sentencing hearing, and thus he
mistakenly testified to the wrong date of
Santos’s involvement in the bolita, and
squandered his downward departure. But since
Morales had already testified consistently at his
plea hearing and at the trial that he began
working as a collector for Santos in the bolita
in 1984, his counsel had no reason to believe
that he would need to refresh his recollection.
Additionally, the record does not indicate that
Morales informed his counsel that he needed to
review his prior testimony, or that he intended
to change his testimony. See Strickland, 466 U.S.
at 691 ("The reasonableness of counsel’s actions
may be determined or substantially influenced by
the defendant’s own statements or actions.").
Rather, the record demonstrates that Morales’s
contradictory testimony at Santos’s sentencing
hearing was deliberate, and not the result of
confusion or mistake. And since the Sixth
Amendment does not require defense counsel to
take all possible precautions to protect a
defendant from testifying falsely and breaching
his plea agreement, this claim fails./8
Morales next argues that his counsel was
ineffective by failing to file a motion to
withdraw his guilty plea after the government
withdrew its sec.5K1.1 motion. A defendant needs
a "fair and just" reason to withdraw a guilty
plea. Schilling, 142 F.3d at 398. The plea
agreement in this case conditioned the
government’s obligation to file the sec.5K1.1
motion on Morales’s "complete, truthful, and
candid testimony." Since Morales’s testimony was
contradictory, untruthful, and material to the
issue of Santos’s sentencing, he failed to
fulfill his part of the bargain, which allowed
the government to withdraw its sec.5K1.1
recommendation. Ramunno, 133 F.3d at 484. With no
"fair and just" reason to withdraw his guilty
plea, Morales’s counsel reasonably decided not to
file the motion./9
D. Roberto Febus
Roberto Febus’s pro se appeal raises several
challenges to his conviction and sentence. He
first contends that a juror’s post-verdict
statements prove that he was denied his Sixth
Amendment right to an impartial jury. He bases
his argument on a purported newspaper article
that reports statements by a juror that the
court’s instructions confused her, and that other
jurors pressured her to vote for a guilty verdict
that she did not truly support. But Febus did not
make the article part of the record, so we cannot
consider it. See New Haven Inclusion Cases, 399
U.S. 392, 450 n. 66 (1970) (the court will not
consider newspaper articles that are not record
evidence). Moreover, even if we had the article,
it would be inadmissible under Federal Rule of
Evidence 606(b), which bars juror comments about
any internal influences on the jury’s
deliberations. Fed. R. Evid. 606(b); see Tanner
v. United States, 483 U.S. 107, 121 (1987) (Rule
606(b) "is grounded in the common-law rule
against admission of jury testimony to impeach a
verdict and the exception for juror testimony
relating to extraneous influences."). Since the
juror’s statements in this case only involved
internal deliberations, and alleged no extraneous
influences, this claim fails. United States v.
Muthana, 60 F.3d 1217, 1223 (7th Cir. 1995).
Febus next argues that the district court erred
when it increased his offense level by four
points under sec. 3B1.1(a) of the Sentencing
Guidelines for being an "organizer or leader" of
the bolita. According to Febus, although he
served as the bolita’s interim leader during the
late 1970’s and early 1980’s, he stopped running
it years before the offense of conviction (1989
to 1994), and thus his leadership activities were
not relevant conduct. The district court found,
however, that since the bolita was in continuous
operation from the 1960’s to the 1990’s, Febus’s
leadership stint was relevant conduct to his
offense of conviction, and thus qualified him for
the sentencing enhancement.
"We review a district court’s application of the
sentencing guidelines de novo but defer to the
court’s finding of facts unless they are clearly
erroneous." United States v. Payton, 198 F.3d
980, 982 (7th Cir. 1999). Under sec. 3B1.1(a),
the district court may increase a defendant’s
offense level by four points if the defendant
"was an organizer or leader" of a criminal
enterprise that involved five or more
participants. U.S.S.G. sec. 3B1.1(a).
Furthermore, "the sentencing court need not
confine itself to the offense of conviction but
may look to all relevant conduct within the scope
of U.S.S.G. sec. 1B1.3 (Relevant Conduct)."
United States v. Montague, 29 F.3d 317, 323 (7th
Cir. 1994). Relevant conduct includes "all acts
and omissions . . . that were part of the same
course of conduct or common scheme or plan as the
offense of conviction." United States v. Griffin,
194 F.3d 808, 826-27 (7th Cir. 1999); U.S.S.G.
sec. 1B1.3(a)(2).
In this case, the record demonstrates that: 1)
the bolita ran continuously from the 1960’s until
1994; 2) Febus ran the Indiana operation in the
late 1970’s and early 1980’s; and 3) he also
allowed the bolita’s runners to use his bar in
the 1990’s as a collection site for betting slips
and money. Precisely because Febus’s interim
leadership of the bolita was part of the illegal
lottery’s continuous operation, his leadership
conduct was relevant to his offense of
conviction. Furthermore, because he was still
participating in the same bolita over a decade
later, he never abandoned the conspiracy. See
United States v. Patel, 879 F.2d 292, 294 (7th
Cir. 1989) (unless a conspirator affirmatively
abandons the conspiracy, he cannot limit his
responsibility for its consequences). Therefore,
the district court did not err in finding that
Febus’s interim leadership of the bolita was
"relevant conduct" to his offense of conviction,
and thus qualified him for the sentence
enhancement.
Febus also asserts that the government violated
18 U.S.C. sec. 201(c)(2) by providing leniency
and money to government witnesses. This argument
was originally sanctioned, then rejected by the
Tenth Circuit. United States v. Singleton, 165
F.3d 1297 (10th Cir.) (en banc), cert. denied,
527 U.S. 1024 (1999). The government’s grant of
leniency is not "a thing of value" under the
statute. United States v. Condon, 170 F.3d 687,
689 (7th Cir.), cert. denied, 119 S. Ct. 1784
(1999). And since "Section 201(c)(2) is a
criminal statute, not a private right of action
or a rule of evidence," it does not exclude
evidence or provide a basis for individual
remedies. Id. The record shows that the purpose
of the government’s cash payments to two
witnesses was to cover their expenses, not to
purchase their testimony. And even in cases where
the government pays informants for their
testimony, we have held that such arrangements
"are not per se outrageous; rather the jury may
consider [them] as evidence relating to the
informant’s credibility." United States v.
Miller, 891 F.2d 1265, 1268 (7th Cir. 1989).
Here, since the jury knew about the government’s
payments to the witnesses, we have no reason to
disturb their verdict under sec. 201(c)(2).
Febus raises Sixth Amendment ineffective
assistance of counsel claims as well; since the
parties have briefed this issue, and we have the
record before us, we will resolve it. Reiswitz,
941 F.2d at 495. But arguing and resolving the
issue here precludes any subsequent challenge
under 28 U.S.C. sec. 2255./10
Febus contends that his counsel should have
asked Ken Eto (a government witness who narrowly
survived an assassination attempt in which he
sustained gunshot wounds to his head) about his
head wounds and whether he was fit to testify.
Eto was associated with organized crime in
Chicago where he ran the bolita’s Illinois
operation until he became an informant for the
FBI in 1983 after the assassination attempt.
Febus’s counsel cross-examined Eto, but declined
to ask him about his gunshot wounds and risk
opening the door for the government to inform the
jury about his participation in organized crime.
That was a reasonable strategy. See Kokoraleis v.
Gilmore, 131 F.3d 692, 696 (7th Cir. 1997)./11
E. Jose Santos
Jose Santos’s appellate counsel seeks to
withdraw under Anders v. California, 386 U.S. 738
(1967), because he believes that there are no
nonfrivolous issues for appeal. Pursuant to
Circuit Rule 51(b), Santos filed a response to
counsel’s motion. Because counsel’s Anders brief
is adequate on its face, we consider only those
issues raised in the brief and Santos’s response.
See United States v. Tabb, 125 F.3d 583, 584 (7th
Cir. 1997) (per curiam). And our "duty is merely
to determine whether counsel is correct in
believing those grounds frivolous." United States
v. Wagner, 103 F.3d 551, 553 (7th Cir. 1996).
Counsel first considers whether Santos could
argue that there was insufficient evidence to
support Santos’s convictions for conspiracy, in
violation of 18 U.S.C. sec. 371, and for aiding
and abetting the bolita’s operation, in violation
of 18 U.S.C. sec. 1955 and sec. 2. Santos "bears
an extremely heavy burden" on this issue, as we
will reverse a conviction only if "we determine
that no rational trier of fact could have found
the defendant guilty beyond a reasonable doubt."
Vega, 72 F.3d at 513. To establish a violation of
sec. 1955, the government must prove that Santos
"conducted" the bolita. United States v. Cyprian,
23 F.3d 1189, 1199 n. 14 (7th Cir. 1994) (citing
18 U.S.C. sec. 1955). To "conduct" means "to
perform any act, function or duty which is
necessary to or helpful in the ordinary operation
of the business, and . . . a person may be found
to conduct a gambling business even though he is
a mere servant or employee having no part in the
management or control of the business and no
share in the profits." Id. at 1199 n. 15 (quoting
United States v. Greco, 619 F.2d 635, 638 (7th
Cir. 1980)).
Jose Santos rented a bar called the "Poolroom,"
and allowed the bolita’s operators (including his
brother Efrain Santos) to use the Poolroom as a
bolita collection site after another
bar/collection site was searched by authorities.
Therefore, the record demonstrates that Santos
knew that he was facilitating the bolita’s
continued operation by allowing his bar to
function as a new collection site, and thus
counsel properly concluded that this argument
would be frivolous.
Counsel also considered whether Santos could
argue that the district court should have severed
Jose Santos from Efrain Santos under Fed. R. Civ.
P. 14, or admonished the witnesses early in the
trial to specify when they were speaking about
Jose or Efrain Santos. Because Jose Santos’s
trial counsel did not seek a severance, this
issue is reviewed for plain error only. United
States v. Wilson, 134 F.3d 855, 862-63 (7th Cir.
1998). According to the Supreme Court:
We believe that, when defendants have been
properly joined under Rule 8(b), a district court
should grant a severance under Rule 14 only if
there is a serious risk that a joint trial would
compromise a specific right of one of the
defendants, or prevent the jury from making a
reliable judgment about guilt or innocence.
Zafiro v. United States, 506 U.S. 534, 539
(1993).
Santos cites to no cases in which co-defendants
with the same last name required a severance, and
he does not specify any instances in the record
where he may have been prejudiced. We will not
scour the record "searching haystacks for
needles," Wagner, 103 F.3d at 553, to discover
specific testimony that supports Santos’s
argument, and we agree with counsel’s conclusion
that this argument is frivolous.
Finally, counsel considered whether Santos could
argue that the district court erred by refusing
to adjust Santos’s sentence downward by two
points for being a minor participant in the
bolita under Guideline sec. 3B1.2(b). We lack
jurisdiction to review a district court’s
discretionary refusal to depart downward unless
the sentence was imposed in violation of the law
or as a result of an incorrect application of the
sentencing guidelines. United States v. Yoon, 128
F.3d 515, 529 (7th Cir. 1997). In this case, the
district court’s statements at the sentencing
hearing indicate that it knew it had authority to
depart, but decided, in its discretion, that
Santos "in no way" qualified for a downward
departure. Moreover, the record demonstrates that
Santos participated in the bolita in a
substantial way by knowingly providing his bar as
a collection center for the bolita’s operations
in exchange for a monthly payment. We conclude,
therefore, that this argument is frivolous.
Accordingly, we grant counsel’s motion to
withdraw and dismiss Jose Santos’s appeal.
In conclusion, we AFFIRM the district court’s
decisions by holding that: 1) there was
sufficient evidence to convict Efrain Santos of
money laundering, and thus his sentence was
proper; 2) the district court did not abuse its
discretion in denying Benedicto Diaz’s motion to
withdraw his plea agreement; 3) Angel Morales was
not entitled to an interpreter under the Court
Interpreter’s Act, and was not denied his Sixth
Amendment right to counsel or his right to the
effective assistance of counsel; and 4) Roberto
Febus was not denied his Sixth Amendment right to
an impartial jury or his right to the effective
assistance of counsel, and that his conviction
and sentence were proper. We also GRANT Jose
Santos’s appellate counsel’s motion to withdraw,
and we DISMISS Jose Santos’s appeal.
/* Appeals No. 98-1252 and 98-2709 were submitted
for decision without oral argument.
/1 Jose Santos (Efrain Santos’s brother)
participated in the bolita by allowing the
bolita’s operators to use his bar (the
"Poolroom") as a new collection center for money
and betting slips after another collection site
was searched by authorities. The grand jury
returned a ten-count indictment against Jose
Santos, and he was convicted of Count 1
(conspiracy to conduct an illegal gambling
business, in violation of 18 U.S.C. sec. 371),
and Count 2 (aiding and abetting the conducting
of an illegal gambling business, in violation of
18 U.S.C. sec. 1955 and sec. 2). Jose Santos was
sentenced to 12 months on each count to serve
concurrently.
Jose Santos’s appellate counsel filed an Anders
brief. For the sake of clarity (and because
Efrain Santos was the leader of the bolita, and
his trial and conviction took center stage in
this case) we will address Jose Santos’s Anders
brief in Part E of this opinion only. All other
references to "Santos" in this opinion (other
than in Part E) refer to Efrain Santos.
/2 Santos also challenges his sentence, contending
that since his money laundering conviction cannot
stand, his base offense should be gambling and
not money laundering. Because we have determined
that Santos’s conviction for money laundering was
correct, there was no sentencing error.
/3 The government files a sec.5K1.1 motion when "the
defendant has provided substantial assistance in
the investigation or prosecution of another
person who has committed an offense." U.S.S.G.
sec.5K1.1.
/4 At oral argument, Diaz contended that since this
examination took place after the government’s
lengthy direct testimony, and cross-examination
by four defense lawyers, he became confused and
actually asserted that he never thought that it
was illegal to write "printer" on his tax form,
not that he lacked knowledge of the bolita’s
illegality. In his brief, however, Diaz admits
that he testified that he did not know that the
bolita was illegal in 1993, and it is clear from
the complete transcript of his testimony, as well
as his later testimony at his sentencing hearing,
that in fact Diaz asserted at trial that he never
knew that the bolita was illegal.
/5 The record shows that Santos ran the bolita in
1984, and Morales does not dispute that fact on
appeal.
/6 For the same reasons, we reject Morales’s claim
that the district court erred in granting the
government’s motion to withdraw its sec.5K1.1
recommendation; because the claim is based on his
allegation that since his language barrier caused
the discrepancy in his testimony, he did not
breach his plea agreement by intentionally giving
false testimony.
/7 We acknowledge that Morales is not precluded as a
matter of law from raising his Sixth Amendment
challenge on direct appeal rather than upon
collateral attack. United States v. Madewell, 917
F.2d 301, 303-04 n.1 (7th Cir. 1990). But we note
that to raise this claim on direct appeal "is
often a disservice to the defendant because
resolution of this issue on appeal may preclude
the defendant from later developing a record and
presenting the issue in a proceeding pursuant to
28 U.S.C. sec. 2255." United States v. Lawson,
947 F.2d 849, 853 n.1 (7th Cir. 1991). We
consider these issues now because they have been
fully briefed and argued and neither defendant,
through the time of oral argument, has requested
that the issue be withdrawn.
/8 Morales also suggests that his counsel could have
protected him from his inconsistent testimony
(and thus preserved his sec.5K1.1 departure) by
quashing the government’s subpoena, or by
appearing at Santos’s sentencing hearing to
assert his Fifth Amendment privilege against
self-incrimination. But if Morales’s counsel
pursued either strategy, Morales would have
forfeited his downward departure anyway, because
the government’s obligation to recommend the
sec.5K1.1 motion was contingent upon Morales’s
continued cooperation, and his "complete,
truthful and candid information and testimony."
Morales also asserts that his counsel was
ineffective by failing to provide him with an
interpreter at Santos’s sentencing hearing. But
this claim fails because we have already
determined that the discrepancy in Morales’s
testimony was not the result of any alleged
language barrier.
/9 And, contrary to Morales’s position, the district
court could not grant him a downward departure
under sec.5K1.1 without the government’s motion,
which remains an "essential prerequisite" for the
court’s power to depart. United States v.
Santoyo, 146 F.3d 519, 523 (7th Cir. 1998).
/10 Supra, note 7.
/11 Febus’s additional Sixth Amendment claims are
patently frivolous. First, he alleges that his
counsel was ineffective because he failed to
investigate whether the government violated sec.
201(c)(2) when it granted plea agreements to
Morales, Diaz, and another co-defendant named
McElroy in exchange for their testimony. But we
have already established that plea agreements are
not "a thing of value" under the statute, and
this claim fails. Condon, 170 F.3d at 689. He
also claims that his attorney was ineffective by
failing to present evidence (in the form of
certain affidavits that are not part of the
record) to show that he did not participate in
the bolita after 1981, and thus the court erred
by enhancing his sentence under sec. 3B1.1. But
we will not consider the affidavits (which also
contradict the facts in the record that bolita
runners used his bar in the early 1990’s),
DeTomaso v. McGinnis, 970 F.2d 211, 214 (7th Cir.
1992); and we conclude that there was no
deficient performance. Febus also throws in a
conclusory statement that his counsel failed to
investigate the facts relating to the court’s
enhancement of his sentence for obstruction of
justice. But because there is no evidence in the
record to support this argument, it fails as
well.
Febus’s remaining argument--that the government
erroneously charged him with conspiracy under 18
U.S.C. sec. 371 because the statute only applies
to conspiracies against the government-- fails
because sec. 371 also prohibits conspiracies that
violate the laws of the United States, including
the illegal gambling statute, 18 U.S.C. sec.
1955. See United States v. Brandon, 17 F.3d 409,
422 (1st Cir. 1994).