United States v. Hector Perdomo , 194 F. App'x 905 ( 2006 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 06-10674 SEPTEMBER 13, 2006
Non-Argument Calendar THOMAS K. KAHN
CLERK
________________________
D. C. Docket No. 04-20139-CR-JEM
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
HECTOR PERDOMO,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(September 13, 2006)
Before MARCUS, WILSON and PRYOR, Circuit Judges.
PER CURIAM:
Hector Perdomo appeals his convictions and sentence for conspiracy to
commit money laundering, 18 U.S.C. § 1956(h), and money laundering, id. §
1956(a)(1)(B)(i). Perdomo challenges his convictions on several grounds: (1)
there was insufficient evidence to support his convictions, (2) there was an
improper variance between the conspiracy charged and the conspiracy proved at
trial, (3) impermissible hearsay was admitted into evidence, and (4) the district
court made improper remarks regarding Perdomo’s testimony. Perdomo also
argues that the district court clearly erred when it denied him a minor role
reduction at sentencing. See U.S.S.G. § 3B1.2(b). We affirm.
I. BACKGROUND
On November 5, 2004, Perdomo, Mario Melo, Olga Melo, Miguel Melo,
Pedro Reynolds, and Ivan Tabares were indicted for conspiracy to launder money,
18 U.S.C. § 1956(h), and money laundering, id. 1956(a)(1)(B)(I). With the
exception of Perdomo, each of the defendants pleaded guilty. Perdomo proceeded
to trial.
The government presented the following evidence against Perdomo.
Detective Alberto Pena of the Money Laundering Strike Force of the Miami Police
Department testified that Perdomo approached him and offered to act as a
confidential informant in September 2002. Perdomo told Pena that he had a
2
business that sold computer parts and he had customers from Colombia who were
paying with black market dollars. Perdomo signed an agreement to become a
confidential informant that prohibited him to keep contraband evidence and
required him to notify Pena as soon as a customer arranged to drop cash to his
business, regardless of the amount.
Joel Chades, a police officer in the Internal Revenue Service Task Force of
the Medley Police Department, testified that on September 24, 2002, he conducted
surveillance of Mario Melo, whom they suspected of laundering drug money.
Chades testified that he followed Mario Melo to the parking lot of a Costco
warehouse, where Mario Melo approached a van driven by Perdomo, engaged in a
brief conversation, and placed a bag or envelope in Perdomo’s van. Chades
testified that he followed Perdomo’s van to a Sports Authority store. Chades stated
that Perdomo did not take the most direct route to the Sports Authority, which was
located on the same street as the Costco. Rather, Perdomo traveled on a residential
street, “driving extremely slow, [sic] turning into streets, making U-turns, going
into cul-de-sacs, doing counter-surveillance techniques.”
Pena testified that on September 24, 2002, Perdomo called him for the first
time since Perdomo became a confidential informant. Perdomo told Pena that he
had “picked up a bunch of hard drives and he was delivering them to a man in a
3
parking lot” and that he was being followed. Pena stated that he believed Perdomo
was lying and directed him to drive to the Sports Authority store. Pena dispatched
two detectives to meet Perdomo there. Pena also testified that it “is pretty common
among money launderers where they pick up currency and drop it off in these
parking lots to individuals they don’t even know.”
Sergio Diaz, a police officer in the Internal Revenue Service Task Force of
the North Miami Beach Police Department, testified that he witnessed Perdomo
arrive at the Sports Authority store. Diaz stated that Perdomo was met by two men
whom he subsequently learned were detectives from the Money Laundering Strike
Force. Diaz testified, without objection, that the Strike Force detectives notified
him that Perdomo was a confidential informant who “had received something that
apparently he wasn’t supposed to” and “had possibly done something wrong.”
Diaz found that the package in Perdomo’s van contained $60,000 and placed
Perdomo under arrest.
Leandro Briones, a special agent with the Internal Revenue Service, testified
that he interviewed Perdomo twice. During the first interview on September 24,
2002, Perdomo stated that a man named “Jaime” told Perdomo to meet him in the
Costco parking lot to deliver currency. Perdomo stated that the money was to be
used to purchase computer parts on behalf of Diego Madrigal for export to
4
Colombia. Perdomo admitted that the “currency that he had received from
Jaime . . . was probably from the black market peso exchange, which is derived
from narcotics proceeds.” In the second interview, on December 31, 2002,
Perdomo identified “Jaime” to be Mario Melo.
Chades testified, without objection, to an “similar transaction” that occurred
between Mario Melo and two other individuals on November 8, 2002. Chades
testified that Mario Melo transferred a bag containing approximately $200,000 to
Tabares and Reynolds. Chades stated that he followed Tabares and Reynolds to an
airplane parts business where an additional $50,000 in cash was found.
Ron Sullivan, a special agent with the Internal Revenue Service, testified
that, on November 8, 2002, he executed a search warrant on the residence of Mario
Melo. Sullivan testified that he recovered a money-counting machine, an envelope
similar to the one that Mario Melo passed to Perdomo, and a bag of rubber bands
similar to those used to wrap bundles of currency. The search also revealed
approximately $2000 distributed throughout the residence and approximately
$7000 in the trunk of Mario Melo’s vehicle.
At the close of the case-in-chief of the government, Perdomo moved for
judgment of acquittal. The district court withheld ruling on the motion. Perdomo
testified on his own behalf as the only witness for the defense.
5
Perdomo testified to the transaction that occurred on September 24, 2002.
Perdomo stated that he received a call from “a man” who wanted to drop off
money on behalf of Madrigal and whom Perdomo agreed to meet in the Costco
parking lot. Perdomo stated that at the meeting, the man placed an envelope in
Perdomo’s vehicle, and, when Perdomo asked him what was in the envelope,
informed Perdomo that it was $60,000. Perdomo testified that he had engaged in
business with Madrigal before, but that the transaction involved only $6000.
Perdomo stated that he called Pena immediately after discovering the envelope
contained more than $6000 and cooperated fully with Pena and the other officers.
On cross-examination, Perdomo admitted to receiving three or four cash
payments of $6000 or less while serving as a confidential informant without
notifying Pena, but testified that Pena had told him he was not required to notify
Pena of cash transactions below $10,000. Perdomo testified that, following his
arrest and at the request of the agents, he called Madrigal. Perdomo admitted that,
during the phone call, Madrigal expressed his belief that Perdomo was aware that
he would receive $60,000 in the transaction. The following exchange then took
place:
The Court: You said you weren’t expecting that amount. What
amount?
Perdomo: I was expecting—I was expecting an amount
different from the price quotation I had submitted to him weeks
6
before. And I was expecting—I was expecting an amount that was
indicated on this e-mail that I received on the 17th of September.
The Court: He’s—ask him your question. You said you were
not expecting that amount. The amount was $60,000, or three times
20. Were you expecting money at all? What were you expecting?
What are you talking about? This makes no sense at all. It’s
gibberish.
Perdomo: I was expecting from six to $8000, round about.
Perdomo did not object to the statement of the district court.
After Perdomo’s testimony, the defense rested. Perdomo did not renew his
motion for judgment of acquittal, nor did Perdomo argue that the conspiracy
proved at trial varied from the conspiracy charged in the indictment. The district
court instructed the jury, “Except for my instructions to you on the law, you should
disregard anything I may have said during the trial in arriving at your own decision
concerning the facts.” The jury returned a verdict of guilty on both charges.
In lieu of requiring the jury specially to find the amount involved in the
transaction, the parties stipulated to $59,800. The Presentence Investigation
Report for Perdomo used this amount to calculate the base offense level of 14.
Perdomo objected that the PSI failed to recommend a minor role reduction. See
U.S.S.G. § 3B1.2(b). The district court denied Perdomo’s motion, calculated a
total offense level of 24, a criminal history category of I, and an advisory
guidelines range of 51 to 63 months of imprisonment. The district court sentenced
Perdomo to 51 months of imprisonment.
7
II. STANDARD OF REVIEW
This Court reviews de novo the sufficiency of the evidence to support a
conviction. United States v. Diaz, 248 F.3d 1065, 1084 (11th Cir. 2001). We
“view the evidence in the light most favorable to the government, drawing all
reasonable inferences in favor of the jury’s verdict.” United States v. Starrett, 55
F.3d 1525, 1541 (11th Cir. 1995) (quoting United States v. Church, 955 F.2d 688,
693 (11th Cir. 1992)). “When a defendant does not move for a judgment of
acquittal at the close of the evidence, . . . we will reverse the conviction only where
doing so is necessary to prevent a manifest miscarriage of justice.” United States
v. Greer, 440 F.3d 1267, 1271 (11th Cir. 2006).
“We review questions of constitutional law de novo.” United States v.
Brown, 364 F.3d 1266, 1268 (11th Cir. 2004). This Court reviews de novo
whether a statement of the district court was prejudicial to the defendant. See
Moody v. United States, 377 F.2d 175, 177-80 (5th Cir. 1967). “[A] district
court’s determination of a defendant’s role in the offense is a finding of fact to be
reviewed only for clear error.” United States v. Rodriguez De Varon, 175 F.3d
930, 937 (11th Cir. 1999) (en banc).
When the defendant fails to object before the district court, we reverse only
for plain error. United States v. Dennis, 237 F.3d 1295, 1299 (11th Cir. 2001).
8
“An appellate court may not correct an error the defendant failed to raise in the
district court unless there is: ‘(1) error, (2) that is plain, and (3) that affects
substantial rights.’” United States v. Rodriguez, 398 F.3d 1291, 1298 (11th Cir.),
cert. denied 125 S. Ct. 2935 (2005) (quoting United States v. Cotton, 535 U.S. 625,
631, 122 S. Ct. 1781, 1785 (2002)). “If all three conditions are met, an appellate
court may then exercise its discretion to notice a forfeited error, but only if (4) the
error seriously affects the fairness, integrity, or public reputation of judicial
proceedings.” Id. (quoting Cotton, 535 U.S. at 631, 122 S. Ct. at 1785).
III. DISCUSSION
Perdomo raises five arguments on appeal. First, Perdomo argues that the
evidence is insufficient to support his convictions for conspiracy and money
laundering. Second, Perdomo argues that the district court plainly erred when it
permitted the government to prove multiple conspiracies instead of the single
conspiracy for which Perdomo was indicted. Third, Perdomo argues that the
district court plainly erred when it admitted hearsay during the testimony of Diaz.
Fourth, Perdomo argues that the district court plainly erred when it commented on
Perdomo’s testimony. Fifth, Perdomo argues that the district court clearly erred
when it denied him a minor role adjustment at sentencing. We address each
argument in turn.
9
A. Sufficient Evidence Supports Perdomo’s Convictions.
Perdomo argues that the government failed to present evidence sufficient to
support his conviction for money laundering, 18 U.S.C. § 1956(a)(1)(B)(i), and
conspiracy to launder money, id. § 1956(h). Because Perdomo failed to renew his
objection to the sufficiency of the evidence at the close of his case, we review for a
“manifest miscarriage of justice.” Greer, 440 F.3d at 1271. In our evaluation, we
view the evidence in the light most favorable to the government. Starrett, 55 F.3d
at 1541. We address each conviction in turn.
1. The Government Presented Evidence Sufficient to
Support Perdomo’s Conviction for Money Laundering.
To obtain a conviction under section 1956(a)(1)(B)(i), the government must
prove four elements:
(1) that appellants conducted or attempted to conduct a
financial transaction; (2) that the transaction involved the proceeds of
a statutorily specified unlawful activity; (3) that appellants knew the
proceeds were from some form of illegal activity; and (4) that
appellants knew a purpose of the transaction was to conceal or
disguise the nature, location, source, ownership, or control of the
proceeds.
United States v. Majors, 196 F.3d 1206, 1212 (11th Cir. 1999). Perdomo argues
that the government failed to meet its burden on the fourth element: concealment.
We disagree.
10
Federal courts have found evidence of concealment in many forms. United
States v. Garcia-Emanuel, 14 F.3d 1469, 1475-76 (10th Cir. 1994) (collecting
cases from several circuits); see also Majors, 196 F.3d at 1213 n.18 (citing Garcia-
Emanuel with approval). The Tenth Circuit listed the following examples:
statements by a defendant probative of intent to conceal;
unusual secrecy surrounding the transaction; structuring the
transaction in a way to avoid attention; depositing illegal profits in the
bank account of a legitimate business; highly irregular features of the
transaction; using third parties to conceal the real owner; a series of
unusual financial moves cumulating in the transaction; or expert
testimony on practices of criminals.
Garcia-Emanuel, 14 F.3d at 1475-76 (footnotes omitted).
The evidence presented at trial is sufficient to prove concealment. Chades
testified that Perdomo engaged in “unusual secrecy” for a transaction that was
purportedly for the purchase of computer hardware: the transfer of the $60,000
took place in a Costco parking lot, and Perdomo used counter-surveillance
techniques when he drove away with the money. Pena testified that these practices
were consistent with those involved in money laundering. Perdomo testified that
Mario Melo, acting as a third party, dropped the money on behalf of Madrigal.
Pena’s testimony also revealed that Perdomo, when he called Pena after picking up
the money, lied and said the package contained computer parts. This evidence is
11
sufficient to support Perdomo’s conviction for money laundering under section
1956(a)(1)(B)(i).
2. The Government Presented Evidence Sufficient to
Support Perdomo’s Conviction for Conspiracy.
“To support a conviction of conspiracy, the government must prove that an
agreement existed between two or more persons to commit a crime and that the
defendant knowingly and voluntarily joined or participated in the conspiracy.”
United States v. Vera, 701 F.2d 1349, 1357 (11th Cir. 1983). Perdomo argues that
the government failed to prove that Perdomo colluded with Mario Melo to commit
money laundering. Again, we disagree.
Perdomo’s own testimony evidenced that he agreed to commit money
laundering. Perdomo admitted that he agreed to meet Mario Melo to collect money
on behalf of Madrigal. The same evidence that supports the element of
concealment for Perdomo’s money laundering conviction supports his knowledge
of the illegality of the transaction to which he agreed. This evidence was sufficient
to support Perdomo’s conviction for conspiracy to commit money laundering
under section 1956(h).
12
B. The Conspiracy Proved at Trial Was Charged in the
Indictment and Evidence of the November 8, 2002,
Conspiracy Did Not Prejudice Perdomo.
“[T]he government must prove the conspiracy it charged in the indictment
rather than some other conspiracy.” United States v. Toler, 144 F.3d 1423, 1426
(11th Cir. 1998). The government must show an ‘interdependence’ among the
alleged co-conspirators in order to prove that the indicted conspiracy was a single
unified conspiracy as opposed to a series of smaller, uncoordinated conspiracies.”
Id. Smaller conspiracies are interrelated if they depend upon, are aided by, or have
an interest in the success of the others. United States v. Chandler, 388 F.3d 796,
811 (11th Cir. 2004).
Perdomo argues that the September 24, 2002, transaction involving Mario
Melo and Perdomo and the November 8, 2002, transaction that involved Mario
Melo, Tabares, and Reynolds were two separate conspiracies instead of a single
conspiracy as charged in the indictment. Because Perdomo failed to object at or
before trial to this purported variance, we review for plain error. See Dennis, 237
F.3d at 1299. Because the conspiracy involving Perdomo that the government
proved was charged in the indictment, no reversible error occurred.
“[P]roof of multiple conspiracies does not in itself constitute reversible
error.” United States v. Gafyczk, 847 F.2d 685, 693 (11th Cir. 1988). “If the
13
Government proves multiple conspiracies and a defendant’s involvement in at least
one of them, then clearly there is no variance affecting that defendant’s substantial
rights.” Id. (quoting United States v. L’Hoste, 609 F.2d 796, 801 (5th Cir. 1980)).
Perdomo argues that the government failed to prove Perdomo’s involvement in the
conspiracy that culminated in the transaction between Mario Melo and Reynolds
and Tabares on November 8, 2002. The problem for Perdomo is that the failure to
prove the broader conspiracy did not affect his substantial rights. See id.The conspiracy proved at trial was charged in the indictment. Although the
conspiracy charged in the indictment was broader, the indictment listed as an overt
act the September 24, 2002, transaction. As we discussed above, see supra Part
III.A.2, the government offered proof that Perdomo agreed with Mario Melo to
launder money on September 24, 2002. Because the indictment alleged conduct
sufficient to support Perdomo’s conspiracy conviction, Perdomo’s substantial
rights were not affected. See Gafyczk, 847 F.2d at 693.
Perdomo also cannot contend that he was unfairly prejudiced by the
evidence of the November 8, 2002, transaction, which had been described in the
indictment. The evidence of the November 8, 2002, transaction was minimal in
contrast with the overwhelming evidence presented by the government and the
testimony of Perdomo himself. Perdomo was never mentioned in connection with
14
the November 8, 2002, transaction, and the government did not cross-examine
Perdomo about either the transaction or Tabares and Reynolds.
C. The Hearsay Testimony of Diaz Did Not Prejudice
Perdomo.
Perdomo argues that the testimony of Diaz contained inadmissible hearsay
that violated the Sixth Amendment confrontation right of Perdomo. See U.S.
Const. Amend. VI; Crawford v. Washington, 541 U.S. 36, 68, 124 S. Ct. 1354,
1374 (2004). Diaz testified that two officers from the Money Laundering Strike
Force who did not testify at trial told him that Perdomo “had received something
that apparently he wasn’t supposed to” and “had possibly done something wrong.”
Because Perdomo did not object at trial, we review for plain error. Dennis, 237
F.3d at 1299.
“‘Hearsay’ is a statement, other than one made by the declarant while
testifying at the trial or hearing, offered in evidence to prove the truth of the matter
asserted.” Fed. R. Evid. 801(c). In a criminal trial, “testimonial” hearsay cannot
be admitted unless the declarant is unavailable and the defendant has had a
previous opportunity to cross-examine the declarant. Crawford, 541 U.S. at 68,
124 S. Ct. at 1374. Testimonial statements are generally those made with the
expectation that they will be available “for use at a later trial.” See id. at 52, 124 S.
Ct. at 1364.
15
The government concedes that the statement is hearsay, but argues that
admitting the statement was not plain error because there was ample evidence to
prove Perdomo’s guilt. We need not address whether the statement was either
offered for its truth or was testimonial in nature. Given the weight of the evidence
against him, Perdomo was not prejudiced by any hearsay in Diaz’s testimony.
Because Perdomo has not satisfied his burden to establish prejudice, we conclude
the district court did not plainly err.
D. The Comments of the District Court Relating to
Perdomo’s Testimony Did Not Prejudice Perdomo.
Perdomo argues, for the first time on appeal, that the comment of the district
court that Perdomo’s response was “gibberish” was an expression of opinion with
regard to his credibility that invaded the province of the jury. We disagree. When
it made the comment, the district court merely exercised its role as the “governor
of the trial.” Quercia v. United States, 289 U.S. 466, 469, 53 S. Ct. 698, 698-99
(1933). The district court sought to focus the testimony of Perdomo and to direct
the witness to respond to the question asked.
Federal courts have long recognized the role of the district court judge as the
“governor of the trial for the purpose of assuring its proper conduct.” Id. at 469, 53
S. Ct. at 698-99. This role must be exercised with care because the “influence of
the trial judge on the jury is necessarily and properly of great weight.” Id. at 470,
16
53 S. Ct. at 699 (internal quotations omitted). The Supreme Court “has
accordingly emphasized the duty of the trial judge to use great care that an
expression of opinion upon the evidence ‘should be so given as not to mislead, and
especially that it should not be one-sided’; that ‘deductions and theories not
warranted by the evidence should be studiously avoided.’” Id. (quoting Starr v.
United States, 153 U.S. 614, 626, 14 S. Ct. 919, 923 (1894)).
Even if the district court had expressed an opinion with regard to Perdomo’s
credibility, Perdomo cannot satisfy his burden to establish plain error. The jury had
ample evidence upon which to find Perdomo incredible. Perdomo’s testimony was
internally inconsistent, contradicted by the testimony of several of the police
officers who testified against him, and often unresponsive to the questions asked
by the government. Pena testified that Perdomo had a history of lying to him,
including his initial statement that he picked up “hard drives” instead of money at
the Costco parking lot. The district court also expressly instructed the jury to
disregard any statements the district court made during the trial. See United States
v. Calderon, 127 F.3d 1314, 1334 (11th Cir. 1997) (stating that “a prejudicial
remark may be rendered harmless by curative instructions to the jury” (internal
quotation omitted)).
E. The District Court Did Not Clearly Err When It
Denied Perdomo a Minor Role Adjustment.
17
When “the defendant was a minor participant in any criminal activity,” a
two-level reduction is warranted. U.S.S.G. § 3B1.2(b). “This section provides a
range of adjustments for a defendant who plays a part in committing the offense
that makes him substantially less culpable than the average participant.” Id. §
3B1.2 cmt. n.3(A). “Subsection (b) applies to a defendant described in Application
Note 3(A) who is less culpable than most other participants[.]” Id. § 3B1.2 cmt.
n.5. “[T]he district court must measure the defendant’s role against her relevant
conduct,” i.e., the conduct on which the base offense level is based. Rodriguez De
Varon, 175 F.3d at 934.
The relevant conduct in Perdomo’s offense was the money laundering
transaction in the amount of $59,800. The only participants in this transaction
were Perdomo and Mario Melo. The district court did not clearly err when it found
that Perdomo was not “substantially less culpable” than Mario Melo. U.S.S.G. §
3B1.2 cmt. n.3(A).
IV. CONCLUSION
Perdomo’s convictions and sentence are
AFFIRMED.
18