United States v. Suarez, Luz M. ( 2000 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 99-2150
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
LUZ M. SUAREZ,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 98 CR 801--Ruben Castillo, Judge.
Argued November 10, 1999--Decided August 15, 2000
Before POSNER, ROVNER and DIANE P. WOOD, Circuit
Judges.
ROVNER, Circuit Judge. Luz Marie Suarez was
charged with making a false statement to the U.S.
Customs Service and failing to report $129,710
that she was attempting to transport from the
United States to Mexico. The district court
applied a two-level sentence enhancement under
U.S.S.G. 2S1.3(b)(1) premised on its finding that
she "knew or believed that the funds were
proceeds of, or intended to promote unlawful
activity." The only issue on appeal is whether
the court erred in applying that enhancement.
In reaching that conclusion, the district court
adopted the Presentence Investigation Report
(PSI), and Suarez did not dispute the facts as
set forth there. According to the PSI, Suarez
checked luggage at O’Hare Airport for a scheduled
flight set to depart to Mexico. Routine x-ray
screening revealed a suspicious package in the
luggage, which prompted inspections officials to
question Suarez. A Customs Inspector approached
her on the jetway and provided her with a notice
explaining the currency reporting requirements in
Spanish, her primary language. The inspector
explained to her in Spanish that if she were
carrying any monetary instruments exceeding
$10,000, either on her person or in any of her
luggage, she was required to file a report.
Suarez responded that she recently sold her
house. The inspector asked her again if she had
anything to declare. Suarez then falsely stated
that she was carrying only $400 in United States
currency, and signed a notice to that effect.
Suarez was subsequently taken to the customs
office where she acknowledged ownership of the
luggage she had previously checked. Inside one of
those pieces of luggage was approximately
$129,710 in United States currency. The currency
was hidden between two pieces of plywood and
wrapped in cellophane tape.
A subsequent investigation by the government
revealed that she had received $48,212 in 1997
when she refinanced her home, and an additional
$6,712.58 in 1998 when she sold her home. Even
deducting all of those proceeds from the $129,710
would still leave unaccounted $73,785.42. In
addition, unverified information reported by
Suarez indicated that: she worked at a cat and
dog food cannery from 1991 to 1992 earning
approximately $600 per month; she worked odd jobs
from 1993 to 1995 but had no permanent employment
during that time period; she co-owned a
restaurant with her brother from 1995 until 1997
but did not draw a set salary and sold her half
of the restaurant to her brother in 1995 (she was
not specific about the money she received in that
sale); and she was not working at the time of her
arrest in 1998. She further reported that the
highest grade she completed in Mexico was the
third grade.
As an initial matter, we examine the meaning of
her statement in the jetway concerning the sale
of her home. The Presentence Investigation Report
characterized the conversation in the jetway as
a statement by Suarez that the money she was
transporting was the proceeds from the sale of
her house. That is a reasonable interpretation
given that her statement regarding the sale of
her home followed the inspector’s explanation of
the reporting requirement. Significantly, Suarez
did not object in the district court to that
characterization of her statement. In fact, in
her objections to the PSI, she declared that she
"does not dispute the existence of the factors
relied upon by the government in seeking
application of the enhancement," including the
factor that she described as follows: "The
defendant told the agent that the currency was
the proceeds from the sale of her home, knowing
this to be false, based upon the documents
obtained by the government relating to the sale
of her property." She also concedes that fact on
appeal. Therefore, one fact properly considered
in the district court and on appeal is that she
lied about the source of the money, falsely
stating that it represented the proceeds of the
sale of her home.
Suarez’ argument on appeal is that the
government failed to meet its burden of showing,
by a preponderance of the evidence, that she knew
or believed that the funds were the proceeds of
or were intended to promote unlawful activity.
See United States v. Hassan, 927 F.2d 303, 308
(7th Cir. 1991) (appropriate standard is
preponderance). The essence of her argument is
that the facts relied upon by the district court
were insufficient to justify the court’s
conclusion, and that the court improperly
disregarded facts that tended to negate the
inferences suggested by the government. This
court gives deference to a district court’s
sentencing determinations, and will not disturb
a district court’s findings of fact unless
clearly erroneous. Id. at 309. A finding of fact
is clearly erroneous only when "the reviewing
court on the entire evidence is left with the
definite and firm conviction that a mistake has
been committed." United States v. Sauerwein, 5
F.3d 275, 278 (7th Cir. 1993), quoting Anderson v.
City of Bessemer City, 470 U.S. 564, 573 (1985).
"Where there are two permissible views of the
evidence, the factfinder’s choice between them
cannot be clearly erroneous." 5 F.3d at 278,
quoting 470 U.S. at 574.
The relevant facts are undisputed, and the only
question is whether the district court erred in
determining that those facts demonstrated that it
was more likely than not that Suarez knew or
believed that the funds were the proceeds of
unlawful activity or were intended to promote
such activity. The facts favoring such a
conclusion include the manner in which the money
was packed so as to avoid detection, Suarez’
dishonest response when asked if she was carrying
more than $10,000, Suarez’ false representation
that the money constituted the proceeds of the
sale of her home, and the employment history that
seemed to negate a legitimate source for the
money. In response to that, Suarez argues that
she traveled under her own name at all times,
that she carried valid identification and was
truthful regarding her current residence and the
sale of her former residence, and that she had no
prior criminal record.
It is not the role of this court to reweigh the
evidence and determine in the first instance
whether the government met its burden. Instead,
we are limited to a determination of whether the
district court’s conclusion was clearly
erroneous. It was not. Although Suarez was
truthful in some respects such as her identity,
she was not honest regarding the key issue of the
source of the money. Of course, Suarez does not
have to give any explanation for the source of
the money, and her silence cannot be held against
her. Here, however, she did not remain silent
regarding the genesis of the fortune. Instead,
she volunteered a source for the money which
proved to be a lie. She concedes that she falsely
represented that the money represented the
proceeds of the sale of her home. That duplicity,
combined with her denial of the existence of the
cash and her placement of the large sum of
currency in her checked luggage packaged so as to
avoid detection, supports the district court’s
conclusion that the money was more likely than
not related to unlawful activity. Although Suarez
was not required to account for the money, her
failure to repair her false attribution of the
source of the money left the court with little to
counter the inference raised by the above facts.
Her lack of a prior criminal record and use of
her true identity are insufficient to leave us
with the firm conviction that a mistake has been
made. This is precisely the type of case in which
there are two permissible views of the evidence,
and the factfinder’s choice between them cannot
be considered clearly erroneous. Sauerwein, 5
F.3d at 278, quoting Anderson, 470 U.S. at 574.
We note briefly that the cases relied upon by
Suarez are inapposite. Unlike Safirstein, 827
F.2d 1380, and United States v. $506,231, 125
F.3d 442 (7th Cir. 1997) (a forfeiture case argued
by analogy), the district court in this case did
not base its decision solely on the amount of the
money, the manner of storing it, and/or the
failure to truthfully report it. Here, the court
had not only her lies regarding the existence of
the money, but critically had her duplicity
regarding the source of the money as well. Lying
about the source gives rise to an inference that
the source is illegitimate. In addition, the
court had Saurez’ recounting of her employment
history which failed to reveal a legitimate basis
for the funds. A natural inference from the lie
and the surrounding circumstances is that the
source was not lawful, and Suarez chose not to
rebut that inference. We agree that "unfounded
assumptions or groundless inferences although
based upon proper and accurate information may
not, consistent with due process, form the basis
of [a] sentence." Safirstein, 827 F.2d at 1385;
see also Hassan, 927 F.2d at 308. The inference
drawn by the court in this case, however, is not
without support in the facts, and the standard of
review precludes a contrary finding by this
court. Accordingly, the decision of the district
court is affirmed.