United States v. Fidencio Estrada ( 2008 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
___________________________________
JANUARY 7, 2008
NO. 06-13836 THOMAS K. KAHN
CLERK
__________________________________
D.C. Docket No. 05-00070 CR-T-23-MAP
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
FIDENCIO ESTRADA,
a.k.a. Fidencio Estrada-Guerra,
Defendant-Appellant.
___________________________________
Appeal from the United States District Court
for the Middle District of Florida
___________________________________
(January 7, 2008)
Before BLACK, HULL and FAY, Circuit Judges.
PER CURIAM:
Fidencio Estrada (“Estrada”), a permanent resident of the United States, and
Rafael Pacheco (“Pacheco”), an agent with the United States Customs Service in
Florida, agreed that Estrada would pay bribes to Pacheco in exchange for checking
records on Estrada in the Treasury Enforcement Communication System (“TECS”)
and arranging visas for Estrada’s family. Estrada was found guilty by a jury of
conspiring to bribe a public official, conspiring to launder money, five counts of
bribery, and ten counts of money laundering. Estrada now appeals arguing that
there was insufficient evidence at trial to convict him on several counts, his
convictions should be overturned because they were based on inadmissible
hearsay in contravention of Crawford v. Washington and impermissible character
evidence in contravention of Fed. R. Evid. 404, the prejudice connected with the
introduction of certain evidence outweighed the probative value of that evidence,
and the district court erred in finding that Pacheco was a “public official holding a
high-level decision making or sensitive position.” For the reasons explained
below, we affirm the judgment of the district court.
Factual Background
In December 2000, Estrada was driving near Houston, Texas when a state
trooper stopped him for traffic violations. The trooper arrested Estrada for driving
without a license and insurance, and searched him, finding Pacheco’s business
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card.1 When the trooper inquired why Estrada had Pacheco’s card, Estrada first
answered that he did not know Pacheco, but later said they were friends. The
trooper then left a message for Pacheco asking him to call if it was important that
Estrada had Pacheco’s card. Pacheco returned the call and told the trooper that
Estrada was a “huge” informant and demanded that the trooper “let him go now.”
Pacheco also told the trooper that if any money was discovered in Estrada’s car, it
should be considered “legit,” because Estrada was “not a crook . . . not a doper.
He is an informant. He is a goat rancher[.]” The trooper felt something was
wrong. He told Pacheco that he would release Estrada, but instead booked him
and called his supervisor. The supervisor called a sergeant in the narcotics
division, who called Pacheco again. This time Pacheco said that Estrada was a
“very very good” informant of his who had assisted in “many, many, many cases”
and had provided information in “numerous investigations.”
After conducting a more thorough investigation, it was discovered that
various family members and friends of Estrada in the Mexico-Texas border area
had sent Pacheco several thousand-dollar-plus wire transfers while he was in
1
Previously, on August 14, 2000, a Texas trooper stopped a car occupied by Estrada, his
brother Eradio Estrada, and a third man. During a consented search, the trooper found
approximately $75,000 in a portfolio inside a brown paper bag. All three denied ownership of
the money.
3
Tampa, Florida, and stationed in Puerto Rico. Pacheco had cashed these transfers
and deposited most of the money in his personal bank accounts, keeping some in
cash.
On February 3, 2000, Santos Ramiro Maldonado (“Maldonado”), Estrada’s
acquaintance, sent $1,400 through Western Union from Houston, Texas to
Pacheco in Tampa. Maldonado testified that Estrada gave him money to send to
someone in Florida.2 It was also discovered that on February 15, 2000, Pacheco
accessed the TECS3 to check for records on Estrada. He searched for Estrada
under two aliases and viewed records for those aliases in the NCIC database,
which lists outstanding warrants against a person.
On February 25, 2000, Maldonado again sent $1,400 to Pacheco in Tampa,
from Rio Grande, Texas via Western Union. Pacheco deposited the money into
his personal checking accounts a few days later. Then on April 2, 2000, Raul
Razo (“Razo”), another of Estrada’s acquaintances from Mexico, sent Pacheco,
who was temporarily stationed in Puerto Rico, $1,500. Razo testified that Estrada
gave him the money to send to someone in Puerto Rico. Pacheco cashed the
2
On the same day, Pacheco picked up the money in two checks, and cashed them at the
transfer point. He then made two deposits of $700 each into his personal checking account.
3
TECS is a system of databases used for criminal investigations and it is illegal for law
enforcement to use the TECS for personal reasons. See 18 U.S.C. § 1030 (West 2007).
4
checks at the transfer point.
On May 2, 2000, Pacheco contacted a customs agent he knew who was
stationed in Mexico, to help get visas for Estrada and Estrada’s family. Pacheco
commented to the agent that Estrada was an informant who had been “extremely
productive” for Pacheco’s agency in Florida. The agent told Pacheco that he
needed a memorandum documenting Estrada’s assistance. Pacheco sent him a
handwritten note. The agent responded that the note was unacceptable and that he
needed a memorandum from Pacheco’s supervisor. Pacheco then sent a
memorandum made by him, not his supervisor. In return, the agent communicated
to Pacheco that Estrada and his family needed to go to the agent’s office in
Mexico with the pertinent documents so that he could recommend that they
receive visas. Estrada’s family members showed up, but Estrada did not. Pacheco
told the agent that Estrada was in Florida and would come in later. On May 19,
2000, visas were issued to Estrada’s family members. The agent later learned that
Estrada was already a permanent resident of the United States.4
On September 1, 2000 and October 11, 2000, an individual showing Eradio
Estrada’s (“Eradio”) identification sent $1,000 to Pacheco through Western Union.
4
If this information had been known, it would have weighed against granting Estrada’s
family members visas, because relatives of permanent residents are likely to abandon their
country of residence and join their permanent resident relative in the United States.
5
Pacheco cashed the first check and deposited the second into his personal
checking account. On September 14, October 11, and December 12, 2000,
Pacheco again conducted numerous TECS queries regarding Estrada.
On November 27, 2000, an individual showing Manuel Ortiz’s (“Ortiz”)
identification5 sent $1,800 from Angleton, Texas, to Pacheco in Tampa through
Western Union. Pacheco cashed the check and deposited $1,700 cash into his
personal checking account. Ortiz was later found with Estrada’s contact numbers
on him.
At trial, an agent with the Bureau of Immigration Customs Enforcement6
testified that Estrada was not and never had been an informant for the United
States customs agencies. In February 2005, a grand jury in the Middle District of
Florida indicted Estrada for conspiring to bribe a public official, in violation of 18
U.S.C. § 201; conspiring to launder money, in violation of 18 U.S.C. § 1956(h);
five counts of bribery in violation of 18 U.S.C. § 201; and ten counts of money
laundering. A jury found Estrada guilty on all counts. The district court sentenced
him to forty-one months’ imprisonment, to be followed by thirty-six months’
5
This same identification was used in December 1999 to send $1,500 via Western Union
to Pacheco in Tampa.
6
This is one of the successor agencies to the United States Customs Service.
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supervised release.7 This appeal follows.
Discussion
I. Estrada’s Motion for Judgment of Acquittal Based on Insufficient Evidence
We review the denial of a motion for a judgment of acquittal based on the
sufficiency of the evidence de novo, and view the evidence “in the light most
favorable to the government, with all reasonable inferences and credibility choices
made in the government’s favor.” United States v. Ortiz, 318 F.3d 1030, 1036
(11th Cir. 2003) (citations omitted).
Estrada argues that the United States did not introduce direct evidence in the
form of eyewitness testimony or sufficient circumstantial evidence to connect him
7
Pacheco was convicted in a separate proceeding for conspiracy to commit bribery of a
public official in violation of 18 U.S.C. § 371 (Count 1); being a public official receiving and
accepting bribes in return for being influenced in the performance of his official duties in
violation of 18 U.S.C. §§ 201(b)(2)(A)(B) and (C) (Counts 2 through 6); knowingly engaging in
misleading conduct toward another person with the intent to hinder, delay, or prevent
communication to a law enforcement officer of the United States regarding the commission of a
federal offense in violation of 18 U.S.C. § 1512(b)(3) (Count 12); conspiracy to commit money
laundering in violation of 18 U.S.C. § 1956(h) (Count 13); money laundering in violation of 18
U.S.C. § 1956(a)(1)(B)(i) and 2 (Counts 14 through 23); unlawfully accessing restricted federal
computer databases for financial gain and in furtherance of other criminal acts, including bribery,
in violation of 18 U.S.C. § 1030(a)(2)(B) (Counts 24 through 29); obstruction of justice in
violation of 18 U.S.C. §§ 1503(a), 1503(b)(3), and 18 U.S.C. § 2 (Count 30); and false
statements in violation of 18 U.S.C. § 1001(a)(2) (Counts 31 and 32). He was sentenced to 87
months’ imprisonment as to counts 2- 6, 12, 13- 23, and 30; and 60 months’ imprisonment as to
counts 1, 24-29, 31 and 32; all such terms to run concurrently. Upon release from imprisonment,
Pacheco will be on supervised release for a term of 36 months as to counts 1-6, and counts 12-
32; all such terms to run concurrently. Pacheco is also to pay $2,700 as a criminal monetary
penalty and is personally liable for a forfeiture money judgment in the amount of $17,400.
Pacheco was not called as a witness in this trial of Estrada.
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to the bribery transactions. We disagree.
The United States provided direct evidence in the form of eyewitness
testimony from Maldonado and Razo, linking Estrada to the Maldonado and Razo
transfers. In addition, the circumstantial evidence was sufficient to establish a
pattern of bribes from Estrada to Pacheco that occurred (1) from Western Union
offices (2) near the Texas-Mexico border (3) for amounts of at least $1,000 (4)
sent by Estrada’s friends and family members (5) directly to Pacheco wherever he
was stationed. The Eradio and Ortiz transfers fit this pattern. The transfers came
from Western Union offices near the Texas-Mexico border and were for amounts
similar to the previous bribes. The transfers were sent by persons close to Estrada.
Both Eradio and Ortiz were found with Estrada’s contact numbers. Estrada was in
the car with Eradio when the trooper found $75,000 that triggered the September
TECS check on Estrada. Finally, the money transfers went directly to Pacheco.
This pattern provides strong circumstantial evidence that Estrada was directly
involved in the Eradio and Ortiz transfers as well as the previous transfers.
Therefore, Estrada was properly found to be directly connected to all the bribery
transactions.
II. Evidentiary Rulings
We review evidentiary rulings for abuse of discretion. See General Elec.
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Co. v. Joiner, 522 U.S. 136, 141-42, 118 S. Ct. 512, 517 (1997). Estrada argues
that the district court violated his Sixth Amendment rights as set forth in Crawford
v. Washington, 541 U.S. 36, 124 S. Ct. 1354 (2004), and abused its discretion
under Fed. R. Evid. 404(b) by admitting the TECS records and NCIC screen
images into evidence. However, the only entries the jury saw were those
contained on the pages published during witness testimony.8 Furthermore, only
one of the pages of the TECS exhibits was published to the jury and it contained a
single purportedly prejudicial entry: “[S]ubject is an associate of Bruno Amador
Pena-Trevino. Estrada Guerra is suspected of narcotic trafficking.”
The Confrontation Clause does not apply in this situation because it “does
not bar the use of testimonial statements for purposes other than establishing the
truth of the matter asserted.” Crawford, 541 U.S. at 59 n.9, 124 S. Ct. at 1369 n.9
(citation omitted). Because the entry was not admitted for its truth, but to show
the jury exactly what Estrada was purchasing with his bribes to Pacheco, Estrada’s
argument cannot prevail. The fact that the entries existed was introduced to
establish Estrada’s motive for the bribery. The district court explained this to the
8
At the end of trial, the United States voluntarily offered to withhold the original TECS
exhibits, suggesting that the court send back for jury deliberations only those pages that were
already published to the jury or that it withhold the exhibits unless the jury asked for them. The
court instructed a court officer not to take the exhibits back to the jury for deliberations. The
United States brought the original exhibits to the counsel table to avoid any portion entering the
jury room. The jury never asked for the exhibits.
9
jury and specifically instructed them that they could not consider the TECS entries
for their truth, but solely for their existence. Consequently, Estrada suffered no
Sixth Amendment Confrontation Clause violation and his Crawford claim fails.
Estrada’s 404(b) claim also fails because the district court did not admit the
TECS entry for its truth. Rule 404(b) excludes some evidence of “prior bad acts”
because the evidence can be unfairly prejudicial to the defendant by putting his
character into a questionable position instead of proving his current crime. See
generally Old Chief v. United States, 519 U.S. 172, 181-82, 117 S. Ct. 644, 650-51
(1997) (state may not show defendant’s prior trouble with the law because it
weighs too much with the jury as to prejudge one with a bad general record and
deny him a fair opportunity to defend against a particular charge). However, the
district court specifically instructed the jury that it should not consider the entry
for its truth. Pursuant to the court’s instructions, a reasonable jury would not have
used the entry as evidence that Estrada actually had committed a prior bad act. See
Francis v. Franklin, 471 U.S. 307, 324 n.9, 105 S. Ct. 1965, 1976 n.9 (1985).
Furthermore, the TECS entry was not excludable under Rule 404(b) because
it was intrinsic evidence attributable to Estrada’s current offenses. Rule 404(b) is
not applicable “where the evidence concerns the context, motive, and set-up of the
crime and is linked in time and circumstances with the charged crime, or forms an
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integral and natural part of an account of the crime, or is necessary to complete the
story of the crime for the jury.” United States v. Smith, 122 F.3d 1355, 1359 (11th
Cir. 1997). Estrada ordered others to send large amounts of money to Pacheco, in
order for Pacheco to provide Estrada with TECS information. If there had been no
information on the TECS system involving Estrada, or the information was not
harmful to him, there would have been no reason for Estrada to continuously send
money to Pacheco. It was logical for the Government to show the jury that there
was some information about Estrada in the TECS system that Estrada would be
interested in, regardless of its truth. Under these circumstances, the evidence was
admissible under Rule 404(b). See United States v. Paskett, 950 F.2d 705, 708 n.3
(11th Cir. 1992) (holding that evidence of defendant’s past money laundering was
admissible under Rule 404(b) because money laundering activities were motive
for the alleged bribe and hence “‘inextricably intertwined’ with the government’s
proof of the charged offense and necessary to complete the story of the crime”).
Thus, the TECS entry was properly admitted and there was no error.
Estrada also argues that the district court abused its discretion under Rule
404(b) by admitting testimony about the traffic stop during which, pursuant to a
consented search, the trooper found approximately $75,000 in the car in which
Estrada was riding. Because this evidence triggered subsequent bribes to Pacheco,
11
it is intertwined with Estrada’s crimes and admissible to paint the whole picture of
his offenses. We find no abuse of discretion in these evidentiary rulings.
III. Sentencing Enhancement for Bribery of an Official in a “Sensitive” Position
We review the district court’s interpretation of the sentencing guidelines de
novo. See United States v. Jordi, 418 F.3d 1212, 1214 (11th Cir. 2005).
Estrada complains that the district court should not have applied a guideline
enhancement for bribery of a public official in a “sensitive” position, arguing that
Pacheco was not a “high-level decision-maker” pursuant to U.S.S.G. §
2C1.1(b)(2)(B) (2000).9 We conclude that the district court correctly enhanced
Estrada’s advisory guidelines offense level pursuant to U.S.S.G. §2C1.1(b)(2)(B)
(2000). That section requires the district court to increase the offense level if the
offense “involved a payment for the purposes of influencing an elected official or
any official holding a high-level decision-making or sensitive position.” The
9
The 2000 edition of the sentencing guidelines was used to calculate the PSI report. In
2004, the text of § 2C1.1(b)(2)(B) was amended and became § 2C1.1(b)(3), which now provides
that the enhancement applies “[i]f the offense involved an elected public official or any public
official in a high-level decision-making or sensitive position.” U.S.S.G. § 2C1(b)(3). Although
the new § 2C1.1(b)(3) does not contain the requirement that the offense involved “a payment for
the purpose of influencing” an official, it did not alter the phrase “high-level decision-making or
sensitive position,” which is the language at issue here.
Further, the 2004 amendments to the application notes of former U.S.S.G. §
2C1.1(b)(2)(B) were intended to clarify the meaning of “high-level decision-making or sensitive
position.” See U.S.S.G. Amend. 666. It is well-settled in this Court that amendments to the
guidelines commentary are clarifying amendments and that clarifying amendments to the
guidelines apply retroactively. United States v. Armstrong, 347 F.3d 905, 908 & n.6 (11th Cir.
2003).
12
commentary gives as examples of an official holding a “sensitive” position– “a
juror, a law enforcement officer, an election official, and any other similarly
situated individual.” U.S.S.G. Amend. 666 (codified at U.S.S.G. § 2C1.1(b)(3)
(2004), comment. n.4(B)). Pacheco was clearly a “law enforcement officer.”
Therefore, because the evidence at trial established that Estrada bribed a law
enforcement official who had access to sensitive information, the district court did
not err in applying the U.S.S.G. §2C1.1(b)(2)(B) (2000) enhancement.10
IV. The “Reasonableness” of Estrada’s Sentence
We review sentences for unreasonableness. See United States v. Booker,
543 U.S. 220 (2005). We also normally review a claim of substantive
unreasonableness by reviewing the sentence in its entirety with deference in light
of the factors in 18 U.S.C. § 3553(a). See United States v. Williams, 456 F.3d
1353, 1363 (11th Cir. 2006). However, Estrada did not object to his sentence as
unreasonable in the district court. In this Circuit, if a defendant is offered the
opportunity to object at sentencing and fails to do so, “objections to the sentence
will be waived for purposes of appeal.” United States v. Jones, 899 F.2d 1097,
1103 (11th Cir. 1990), overruled on other grounds by United States v. Morrill,
10
The district court enhanced the guideline offense level because Pacheco was in a
“sensitive” position as opposed to a “high-level decision-making position,” and Estrada bribed
him precisely because of his position.
13
984 F.2d 1136 (11th Cir. 1993) (en banc). As an exception to waiver, “we will
only consider [sentence] objections raised for the first time on appeal under the
plain error doctrine to avoid ‘manifest injustice.’” United States v. Newsome, 998
F.2d 1571, 1579 (11th Cir. 1993) (quoting United States v. Neely, 979 F.2d 1522,
1523 (11th Cir. 1992)). The government argues that plain error review should
apply because Estrada did not object to his sentence as unreasonable in the district
court. This Court has not yet applied plain error review to a question of
reasonableness of a sentence. We need not decide here whether or how plain error
applies because, even under a reasonableness standard, Estrada’s sentence appeal
fails.
Estrada mainly argues that it was incorrect for the district court to have used
the advisory guidelines range it did when applying the sentencing factors set forth
in 18 U.S.C. § 3553 because it incorrectly calculated that range by enhancing
Estrada’s sentence under U.S.S.G. § 2C1.1(b)(2)(B) (2000). We rejected this
argument in part III above.
Thus, the only remaining argument is that based upon the testimony of
several family members that Estrada was a “good man,” the court should have
sentenced him to less time because he needs to provide for his family financially.
We disagree. “The weight to be accorded to any given § 3553(a) factor is a matter
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committed to the sound discretion of the district court.” Williams, 456 F.3d at
1363. The trial court heard the witnesses, evaluated the testimony, and carefully
considered all of the surrounding circumstances. The forty-one months’ sentence
was not unreasonable.
Conclusion
For the foregoing reasons, we AFFIRM the judgment of the district court.
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