Salvador Magluta v. United States

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 14-14498
________________________
D.C. Docket Nos. 1:10-cv-21345-PAS,
1:99-cr-00583-PAS-1
SALVADOR MAGLUTA,
Petitioner–Appellant,
versus
UNITED STATES OF AMERICA,
Respondent–Appellee.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(August 30, 2016)
Before WILSON and JULIE CARNES, Circuit Judges, and MOORE, * District
Judge.
PER CURIAM:
*
Honorable William T. Moore, Jr., United States District Judge for the Southern District of
Georgia, sitting by designation.
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Salvador Magluta was convicted of one count of conspiracy to commit
money laundering and eight counts of money laundering. After two direct
appeals, he filed a § 2255 motion to vacate, set aside, or correct sentence. The
district court denied each of Magluta’s claims but granted a certificate of
appealability as to four claims, each of which is premised on the Supreme Court’s
decision in Regalado Cuellar v. United States, 553 U.S. 550 (2008). After
reviewing the record and the parties’ briefs, and having had the benefit of oral
argument, we affirm.
I. BACKGROUND
A jury convicted Salvador Magluta of, among other crimes, one count of
conspiracy to commit money laundering in violation of 18 U.S.C. § 1956(h) and
eight counts of money laundering in violation of 18 U.S.C. § 1956(a)(1)(B)(i).
Each of the eight substantive counts corresponded to one of eight checks Magluta
paid to his criminal defense attorneys. The checks were drawn from an Israeli
bank account in the fictitious name of “Leonard Friedman.” The account funds
represented drug proceeds that had been transferred from Miami to New York,
and then from New York to Israel.
Magluta appealed his convictions and sentence. The Eleventh Circuit
affirmed each of Magluta’s convictions other than his conviction for Count 8
(obstruction of justice through juror bribery), which conviction this Court vacated.
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See United States v. Magluta, 418 F.3d 1166, 1186 (11th Cir. 2005). On remand,
the district court resentenced Magluta on the remaining counts of conviction.
Magluta appealed his new sentence, and we affirmed. See United States v.
Magluta, 313 Fed. App’x 201 (11th Cir. 2008) (per curiam). The Supreme Court
thereafter denied Magluta’s petition for certiorari. See Magluta v. United States,
556 U.S. 1207 (2009).
Magluta subsequently filed a counseled motion to vacate, set aside, or
correct his sentence under 18 U.S.C. § 2255. His motion contained 46 claims.
The district court denied each claim but granted a certificate of appealability
(“COA”) with respect to four of the claims, each of which turns on the effect of
the Supreme Court’s decision in Regalado Cuellar v. United States, 553 U.S. 550
(2008). Magluta now appeals the district court’s denial of those four claims.
II. DISCUSSION
In reviewing a district court’s denial of a § 2255 motion, “we review legal
conclusions de novo and findings of fact for clear error.” Mamone v. United
States, 559 F.3d 1209, 1210 (11th Cir. 2009) (per curiam).
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A. Claims Not Identified in the Certificate of Appealability
Magluta argues that the district court committed various procedural errors.1
However, these procedural issues do not appear in the COA and therefore are not
properly before us. See Murray v. United States, 145 F.3d 1249, 1250–51 (11th
Cir. 1998) (per curiam) (“[A]ppellate review is limited to the issues specified in
the COA.”); Zakrzewski v. McNeil, 573 F.3d 1210, 1211 n.2 (11th Cir. 2009) (per
curiam) (“Petitioner contends that the district court abused its discretion by
finding facts without holding an evidentiary hearing. We doubt an abuse
occurred, but we decline to examine the arguments because they are beyond the
scope of the COA.”).
B. Claims Identified in the Certificate of Appealability
Magluta also argues that we should reverse the district court’s denial of the
four claims identified in his COA. Those claims can be summarized as follows:
Claim 1(a)(2): Counts 2 and 34 through 41 of the indictment
are constitutionally defective because the indictment fails to
allege facts that, if established, would show that Magluta knew
that the payments he made to his attorneys were intended to
conceal the nature, location, source, ownership, or control of
the drug proceeds, as required under Cuellar.
Claim 4: In light of Cuellar, Magluta is actually innocent of
Counts 2 and 34 through 41 because the payments at issue
were made for the sole purpose of paying his attorneys, and not
1
Magluta asserts as procedural errors the district court’s denial of his motion to amend his
§ 2255 motion, its denial of his request for an evidentiary hearing, and its undue deference to
the magistrate judge’s report and recommendation.
4
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to conceal the nature, location, source, ownership, or control of
the drug proceeds used to fund the defense.
Claim 8: The Government’s theory of the design-to-conceal
element was improper under Cuellar. The district court did
nothing to correct this erroneous theory and thereby violated
Magluta’s Fifth Amendment due process right and Sixth
Amendment right to a jury trial.
Claim 18: Trial counsel provided ineffective assistance by
failing to argue that the Government had not proven that
Magluta knew that the attorney’s fee payments were intended
to conceal the relevant attributes of the drug proceeds, as
required under Cuellar.
Each of the claims identified in the COA turns on the Supreme Court’s
decision in Cuellar. Accordingly, a review of that decision is in order. At the
outset, we note that Cuellar involved a conviction for transporting funds derived
from an unlawful activity knowing that the transportation was designed at least in
part to conceal or disguise the nature or ownership of the proceeds, in violation of
18 U.S.C. § 1956(a)(2)(B)(i).2 Magluta was convicted of transactional money
laundering, in violation of 18 U.S.C. § 1956(a)(1)(B)(i),3 which prohibits a person
2
Subsection (a)(2) prohibits the transportation, or attempted transportation, of funds to or
through some place outside the United States knowing that the funds involved in the
transportation represent the proceeds of some form of unlawful activity and “knowing that such
transportation . . . is designed in whole or in part . . . to conceal or disguise the nature, the
location, the source, the ownership, or the control of the proceeds of specified unlawful
activity.” 18 U.S.C. § 1956(a)(2)(B)(i). The transactional money laundering prong of the
statute has the identical design-to-conceal element set forth in the transportational money
laundering prong.
3
The offense of transactional money laundering consists of four elements: “(1) knowingly
conduct[ing] a ‘financial transaction,’ (2) which [the defendant] knew involved funds that were
the proceeds of some form of unlawful activity, (3) where the funds involved in the financial
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from conducting a financial transaction with funds derived from an unlawful
activity knowing that the transaction was designed in part to conceal or disguise
the nature or ownership of the proceeds. The parties vigorously dispute whether
Cuellar’s teachings apply in the transactional money laundering context, as here.
Ultimately, we need not decide this question because assuming arguendo that
Cuellar does apply, Magluta’s claims still fail.
The question presented in Cuellar was whether evidence that the defendant
had concealed drug money while transporting it from the United States to Mexico
was sufficient to prove the element of the offense requiring that the defendant
know that the transportation was designed to conceal the nature, location, or
ownership of the unlawful proceeds. The evidence showed that the defendant had
been pulled over in Texas about 100 miles from the Mexico border. The police
discovered a hidden compartment in the trunk containing $81,000 in cash,
bundled in plastic bags. Animal hair was spread in the rear of the car, and
although the defendant claimed that he had previously transported goats in the car,
the officer observed that the compartment was too small to accommodate goats.
There was also evidence that the compartment had been recently installed and that
transaction in fact were the proceeds of a ‘specified unlawful activity,’ and (4) that the
defendant engaged in the financial transaction knowing that the transaction was designed in
whole or in part to conceal or disguise the nature, location, source, ownership, or control of the
proceeds of such unlawful activity.” United States v. Tarkoff, 242 F.3d 991, 994 (11th Cir.
2001).
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it was deliberately concealed. Furthermore, the defendant had lied about where he
had been in the days prior to his arrest. Finally, an Immigration and Customs
Enforcement (“ICE”) agent testified that drug-trafficking organizations typically
bring money into Mexico for the purpose of paying the organization’s higher-ups.
The Government argued that its evidence satisfied the statute’s design-to-
conceal element because “concealment during transportation . . . is circumstantial
evidence that the ultimate purpose of the transportation—i.e., its ‘design’—is to
conceal or disguise a listed attribute of the funds.” Cuellar, 553 U.S. at 562. The
Supreme Court disagreed, holding that “in this context, ‘design’ means purpose or
plan; i.e., the intended aim of the transportation.” Id. at 563. Put differently,
“how one moves . . . money is distinct from why one moves . . . money.” Id. at
566 (emphasis in original). In Cuellar, the defendant moved the money in a
concealed manner, but the Government had introduced no evidence that would
allow the jury to infer that the defendant had moved the money in order to conceal
its nature, location, source, ownership, or control. Id. at 567–68. With this
background in mind, we proceed to address Magluta’s arguments concerning the
district court’s dismissal of his Cuellar-related claims.
1. Claim 4
We begin with Claim 4, in which Magluta argues that he is “actually
innocent” of the charges in Count 2 (§ 1956(h) conspiracy count) and Counts 34
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through 41 (§ 1956(h) substantive counts) in light of Cuellar. Essentially,
Magluta argues that Cuellar clarified that secretly transferring drug proceeds is,
on its own, insufficient to prove that the defendant knew that the transaction was
designed to conceal the nature, source, or ownership of the underlying funds.
Magluta contends that the evidence did not show anything other than a transaction
conducted in a concealed manner and, accordingly, he is actually innocent of the
money laundering offenses.
The district court denied Magluta’s claim because, “even post-Cuellar, the
jury still would have found Magluta guilty under Counts 34–41.” On appeal,
Magluta maintains that there was no intent to conceal any material attribute of the
funds. According to Magluta, the sole purpose of the transactions was to pay his
attorneys using an acceptable form of payment. The Government argues that it is
debatable whether freestanding actual innocence claims are allowable, but even if
they are, Magluta has not met the extraordinarily high threshold necessary to press
such a claim here.
The Supreme Court has “not resolved whether a prisoner may be entitled to
habeas relief based on a freestanding claim of actual innocence.” McQuiggin v.
Perkins, 133 S. Ct. 1924, 1931 (2013) (citing Herrera v. Collins, 506 U.S. 390,
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404–05 (1993)). 4 On at least one occasion, the Supreme Court assumed, “for the
sake of argument . . . , that in a capital case a truly persuasive demonstration of
‘actual innocence’ made after trial would render the execution of a defendant
unconstitutional, and warrant federal habeas relief if there were no state avenue
open to process such a claim.” Herrera, 506 U.S. at 417 (emphasis added). Even
assuming that a freestanding actual innocence claim is cognizable in the present
non-capital case and even if Cuellar applies to transactional money laundering,
Magluta has not demonstrated his actual innocence.
At bottom, Cuellar teaches that the Government cannot use the mere fact of
transportation of tainted funds to prove a design to conceal the source, nature, or
owner of those funds. See Cuellar, 553 U.S. at 568 (holding that the design-to-
conceal element “can[not] . . . be satisfied solely by evidence that a defendant
concealed the funds during their transport”). The defendant in Cuellar was a low-
level courier who was caught with $81,000 in cash in the trunk of the car he was
driving toward the Mexico border. According to testimony from an ICE agent,
drug-trafficking organizations’ couriers typically transported cash to Mexico to
4
Moreover, “[t]he Supreme Court . . . has never decided what the precise burden of proof for a
freestanding actual innocence claim would be.” Mize v. Hall, 532 F.3d 1184, 1195 (11th Cir.
2008). But we know that the standard would be more stringent than the standard that applies
when a § 2255 petitioner argues that he is actually innocent in order to overcome procedural
default. In such cases, the standard is whether the § 2255 petitioner has shown that “‘in light of
all the evidence,’ ‘it is more likely than not that no reasonable juror would have convicted
him.’” Bousley v. United States, 523 U.S. 614, 623 (1998) (quoting Schlup v. Delo, 513 U.S.
298, 327–28 (1995) (internal quotation marks and citation omitted)).
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pay the higher-ups. The Supreme Court held that the evidence did not show that
the defendant knew that the transportation was designed to conceal some material
attribute of the money being transported. Id.
The facts of this case are materially different from the facts of Cuellar.
Here, the evidence at trial showed that Richard Passapera, one of Magluta’s
associates, delivered $1.2 million in drug proceeds to Antonio Garcia, another
Magluta associate, in Miami. Magluta, 418 F.3d at 1175. Passapera and Magluta
were unaware, however, that Garcia had become an FBI informant. Id. Garcia
delivered the money to FBI agents, who transported it to New York and returned
it to Garcia to complete the transaction. Id. In New York, Garcia turned the
money over to two other Magluta associates, Harry Kozlik and Isaac Benatar. Id.
With the cash in hand, Kozlik boarded a plane to Israel. There, he deposited the
cash into an Israeli bank account under the fictitious name of “Leonard
Friedman.” Id. Kozlik later gave Garcia eight blank checks issued from the
Friedman account. Id. Garcia then transferred the checks to Passapera. Id.
Magluta used those checks to pay his lawyers. Id.
The district court rightly concluded that, based on these facts, “a jury could
[] assume that how the money was moved had everything to do with why the
money was moved.” The fictitious name on the checks, in addition to the drug
proceeds’ path from Miami to New York to Israel and then back to Miami, would
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permit the jury to infer that Magluta’s intent in paying his attorneys was at least in
part to cover up the fact that the payments derived from Magluta’s drug proceeds;
that is, to conceal the source or owner of the funds.
Magluta’s argument on appeal bolsters our conclusion that a jury could
infer based on the evidence in this case that the transactions were designed in part
to conceal some material attribute of the underlying funds. Magluta maintains
that the funds had to be transferred from Miami to New York to Israel because
this was the only way for him to pay his lawyers by check, as they had requested.5
But Magluta does not explain why he could not have paid his attorneys using
checks tied to a bank account in the United States or an account in a legitimate
name. Thus, unlike in Cuellar, the facts established at trial in this case permit the
inference that the funds were transferred, at least in part, to conceal the drug
proceeds’ nature, source, or ownership. See Cuellar, 553 U.S. at 569 (Alito, J.,
concurring); United States v. Faulkenberry, 614 F.3d 573, 586 (6th Cir. 2010)
(“[D]epending on context, proof that a transaction was structured to conceal a
listed attribute of the funds can yield an inference that concealment was a purpose
of the transaction.”); United States v. Slagg, 651 F.3d 832, 845 (8th Cir. 2011)
(“[T]he Government must show that concealment is an ‘intended aim’ of the
transaction, whether from direct evidence or circumstantial evidence.” (emphasis
5
Secondarily, Magluta notes that he wanted the fact that he was paying criminal defense
attorneys to be private.
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added) (quoting Cuellar, 553 U.S. at 564)). In sum, then, even if freestanding
actual innocence claims are cognizable under § 2255, Magluta has fallen short of
establishing his innocence.6
2. Claim 18
In Claim 18, Magluta argues that he received ineffective assistance at trial
because his attorney failed to argue to the jury that “Magluta’s purpose in using
checks to pay his attorneys was directly pertinent to the Government’s burden to
establish the designed concealment component of the charged money laundering
offenses.” Essentially, Magluta contends that his attorney failed him by not
making a Cuellar-like argument to the jury. The district court dismissed
Magluta’s Claim 18 because “even if Cuellar is applicable to []
§ 1956(a)(1)(B)(i), the [G]overnment presented enough evidence to sustain the
conviction post-Cuellar.” Accordingly, Magluta cannot show prejudice from his
attorney’s failure to make a Cuellar-based argument.
Magluta’s ineffective assistance claim “is governed by the Supreme Court’s
two-pronged test announced in Strickland v. Washington, 466 U.S. 668, 104 S. Ct.
2052, 80 L. Ed. 2d 674 (1984).” Puiatti v. Sec’y, Fla. Dep’t of Corr., 732 F.3d
1255, 1278 (11th Cir. 2013). “Under Strickland, to establish constitutionally
6
To the extent Magluta argues that he is actually innocent based on 18 U.S.C. § 1957 because
the payments at issue here were attorney’s fees, his argument is foreclosed by Circuit precedent.
United States v. Elso, 422 F.3d 1305, 1309–10 (11th Cir. 2005) (noting that § 1957’s special
treatment of attorney’s fees does not carry over to the § 1956 context).
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ineffective counsel, a defendant must show that (1) his attorney’s performance
was deficient, and (2) the deficient performance prejudiced the defense.” Id.
(citing Strickland, 466 U.S. at 687). Magluta’s claim focuses on the failure of his
“trial attorney” to make an argument to the jury at trial. At the time of Magluta’s
trial, however, Cuellar had not yet been decided. So arguably, Magluta’s trial
lawyers were not ineffective by failing to advance a Cuellar-based argument. See
Spaziano v. Singletary, 36 F.3d 1028, 1039 (11th Cir. 1994) (“[R]easonably
effective representation cannot and does not include a requirement to make
arguments based on predictions of how the law may develop.” (internal quotation
marks and citation omitted)).
We recognize that Magluta’s trial counsel also represented him on direct
appeal, and his final direct appeal was decided three days after Cuellar was
handed down. But even if we assume that Magluta’s attorney had the benefit of
Cuellar, the attorney did not render deficient representation by failing to raise a
Cuellar argument given that any such argument would have been futile in light of
the evidence adduced at trial, as set out above. Thus, Magluta’s lawyer’s
performance did not fall below objectively reasonable standards. See Lindsey v.
Smith, 820 F.2d 1137, 1152 (11th Cir. 1987) (“A habeas petitioner who proposes
[an] alternative trial strategy that would itself have proved futile has failed to
demonstrate that the representation at trial fell below an objective standard of
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reasonableness.”). Moreover, because a Cuellar-based argument would have
failed, Magluta has not carried his burden to show prejudice.
3. Claim 1(a)(2)
In Claim 1(a)(2), Magluta asserts that, in light of Cuellar, Counts 2 and 34
through 41 of the indictment “fail to specify facts sufficient to establish . . . a
design to conceal.”7 The district court held that Claim 1(a)(2) was procedurally
barred, but that even if it were not, Claim 1(a)(2) would fail on the merits.
Under the procedural default rule, a defendant generally must raise an
available challenge to a conviction or sentence either before the district court or
on direct appeal, “or else the defendant is barred from presenting that claim in a
§ 2255 proceeding.” Lynn v. United States, 365 F.3d 1225, 1234 (11th Cir. 2004)
(per curiam). Magluta did not challenge the sufficiency of the indictment’s
allegation of the design-to-conceal element at trial or on direct appeal. In fact, he
raised this issue for the first time in his § 2255 motion. Thus, Claim 1(a)(2) is
procedurally barred unless Magluta demonstrates that one of two exceptions to the
procedural default rule applies: (1) cause and prejudice, or (2) a miscarriage of
7
Regarding alleged defects in the indictment, the COA is limited to the issue whether the
indictment adequately alleges the design-to-conceal element in light of Cuellar. Thus, this
Court is not empowered to address the following arguments raised in Magluta’s brief: (1) “[t]he
mere writing of checks” does not amount to a financial transaction within the meaning of
§ 1956; (2) the indictment does not state that the checks were written on different occasions, yet
charges each check as a single count; and (3) the indictment does not set forth facts showing the
effect of the transaction on interstate commerce.
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justice, or actual innocence. McKay v. United States, 657 F.3d 1190, 1196 (11th
Cir. 2011).
Despite the district court’s conclusion in its denial of Magluta’s § 2255
motion that Magluta had procedurally defaulted Claim 1(a)(2), Magluta failed to
address procedural default in his opening brief before us. In his reply brief,
Magluta does suggest that his procedural default should be excused, but “[o]ur
longstanding case law rule is that an appellant who does not raise an issue in his
opening brief may not do so in his reply brief, in a supplemental brief, in a
rehearing petition, or on a remand from the Supreme Court . . . .” United States v.
Durham, 795 F.3d 1329, 1330 (11th Cir. 2015) (en banc) (per curiam).
In any event, Magluta’s arguments concerning procedural default fail. He
asserts that his claims are not procedurally barred because (1) he is actually
innocent in light of Cuellar and (2) he received ineffective assistance because his
lawyer did not raise a Cuellar-like argument, and therefore he had cause for not
raising a challenge to the indictment at an earlier juncture. We have already
addressed Magluta’s arguments concerning actual innocence and ineffective
assistance, and we concluded that they are losing arguments. Although the
standard for a so-called gateway actual innocence claim is lower than the standard
for a freestanding actual innocence claim, Magluta cannot satisfy even the lower
threshold.
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To briefly recapitulate, Magluta argues that Cuellar narrowed the scope of
the design-to-conceal element in § 1956(a)(1)(B)(i), and his conduct no longer
satisfies that element of a money laundering offense. But even accepting that
Cuellar narrowed the scope of the design-to-conceal element, and even if Cuellar
applies to transactional money laundering, Magluta would not be able to establish
actual innocence in this case because he cannot show that “‘in light of all the
evidence,’ ‘it is more likely than not that no reasonable juror would have
convicted him.’” Bousley, 523 U.S. at 623 (quoting Schlup, 513 U.S. at 327–28
(internal quotation marks and citation omitted)); see also House v. Bell, 547 U.S.
518, 538 (2006) (“A petitioner’s burden at the gateway stage is to demonstrate
that more likely than not, in light of the new evidence, no reasonable juror would
find him guilty beyond a reasonable doubt.”). This is because, as explained
above, the evidence adduced at trial would allow a jury to convict even after
Cuellar.
Even if Magluta were able to overcome his procedural default as to Claim
1(a)(2), his argument that his indictment was constitutionally infirm fails on the
merits. “To pass constitutional muster, an indictment must be sufficiently specific
to inform the defendant of the charge against him and to enable him to plead
double jeopardy in any future prosecutions for the same offense.” United States v.
Yonn, 702 F.2d 1341, 1348 (11th Cir. 1983) (citing Hamling v. United States, 418
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U.S. 87, 117 (1974)). “Those requirements are satisfied by an indictment that
tracks the wording of the statute, as long as the language sets forth the essential
elements of the crime.” Id.
Here, the indictment tracked the language of the statute and also set forth
facts allowing Magluta to ascertain the basis for the charges against him and plead
double jeopardy in future cases for the same offenses. In relevant part, the
indictment provided that Magluta:
[D]id knowingly conduct, and attempt to conduct, and cause to
be conducted, financial transactions affecting interstate and
foreign commerce, that is, the writing of the checks described
below, on an account at Israel General Bank Ltd., in the name
of “Leonard Friedman,” payable to the attorneys identified
below, in the approximate amounts set forth below, such
checks being subsequently transferred to the attorneys
identified below, which financial transactions involved the
proceeds of a specified unlawful activity, that is, the receiving,
concealing, buying, selling, and otherwise dealing in a
controlled substance, punishable under the laws of the United
States, knowing that the transactions were designed in whole
and in part, to conceal and disguise the nature, location,
source, ownership and control of the proceeds of said specified
unlawful activity, and that while conducting and attempting to
conduct such financial transactions, knew that the property
involved in the financial transactions as described below,
represented the proceeds of some form of unlawful activity.
(emphasis added).
Following this paragraph, the indictment set forth a table detailing the
particular payment that gave rise to each count. For each check/count, the table
listed a payment date, a check number, the amount payed, the attorney involved,
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and the property involved in the transaction. As such, the indictment passed
constitutional muster. See United States v. Sharpe, 438 F.3d 1257, 1264 (11th
Cir. 2006) (holding that the indictment was sufficient because “the counts
contained all of the elements of the offenses charged and informed the defendants
of the charges they faced”).
4. Claim 8
In Claim 8, Magluta argues that the Government’s case ran afoul of Cuellar
by suggesting that the design-to-conceal element is satisfied by the mere fact of a
concealed transaction. Magluta contends that the district court did nothing to
correct this erroneous theory, and so the jury’s conviction was in violation of
Magluta’s Fifth Amendment right to due process and Sixth Amendment right to a
jury trial. The district court held that Claim 8 is procedurally defaulted because
Magluta could have raised the claim on direct appeal but did not. Even if the
claim was not procedurally defaulted, the district court held that it failed on the
merits.
Magluta did not raise his argument concerning the Government’s theory of
prosecution and the district court’s jury instructions during trial or on direct
appeal. 8 Accordingly, Claim 8 is procedurally defaulted because neither default
8
Magluta did challenge the sufficiency of the evidence supporting his substantive money
laundering convictions in his first direct appeal. But Magluta’s arguments on direct appeal were
different than the argument he now advances. On direct appeal, Magluta first argued that
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exception applies, for the same reasons provided above with respect to Claim
1(a)(2). But even if Magluta had not procedurally defaulted Claim 8, that claim
would not provide a basis for relief. The Government elicited extensive testimony
during trial showing that Magluta and his associates concocted a complicated
scheme to funnel drug proceeds from Florida to New York to Israel to a fictitious
bank account, and then to Magluta’s attorneys. Again, a jury could infer based on
this evidence that Magluta knew that a purpose of the payments was to conceal the
nature, source, or ownership of the funds, and Magluta has not explained why
such a complex scheme was necessary if his only goal was to pay his attorneys by
check rather than cash. Whereas in Cuellar the evidence demonstrated that the
funds were being transported to Mexico to pay higher-ups, here, the money was
transferred in a roundabout way from Miami to Israel, only to come back to
Miami. This, in combination with the fictitious name on the checks, distinguishes
“because the proceeds had been under the control of law enforcement before he used them to
pay his lawyers, the money had lost its ‘tainted’ character and was no longer proceeds of a
specified illegal activity.” Magluta, 418 F.3d at 1175. Second, Magluta argued that “allowing
actual drug proceeds [that] have been in the possession of the government to form the basis for
a conviction . . . would make the money laundering ‘sting’ statute . . . superfluous.” Id. at
1175–76. And third, “by the time he wrote the checks to his lawyers the money had already
been laundered; therefore, he says, his acts amounted to mere spending for his personal benefit,
not laundering.” Id. at 1176. Magluta’s third argument is related to but ultimately different
from the Cuellar argument he now advances concerning the Government’s theory of
prosecution. In short, Magluta’s argument now is not that the money was laundered before he
paid his attorneys but rather that he lacked knowledge of a design to conceal some material
attribute of the funds. But even if Magluta had previously raised the argument he now advances
in Claim 8, thereby avoiding procedural default, Claim 8 would still fail on the merits, as we
explain below.
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the Government’s theory concerning concealment in this case from the theory that
the Supreme Court rejected in Cuellar.
In attacking the Government’s theory of concealment, Magluta homes in on
the Government’s closing argument. But the unmistakable theme of the
Government’s closing argument was consistent with Cuellar. The prosecutor
twice reminded the jury that Defendant could not be convicted simply for
“[s]pending drug money.” The prosecutor explained that, to the contrary,
Defendant had been charged with “utilizing the proceeds from an unlawful
activity to engage in certain financial transactions that affect interstate or foreign
commerce with the intent to conceal or disguise the location, source, ownership,
[or] nature of the proceeds.” (emphasis added). The prosecutor reiterated that
“[i]t is utilizing these tainted funds in a manner that hides its origins, hides its
nature, its ownership, [or] the control of those funds” that is proscribed by
§ 1956(h)(a)(1)(B)(i). And he went on to catalogue the evidence suggesting that
Magluta and his associates sought to conceal the source and owner of the drug
proceeds. Thus, the prosecutors closing remarks clearly comport with Cuellar’s
strictures.
Furthermore, the district court’s jury instruction was clear that the design-
to-conceal element required the Government to prove beyond a reasonable doubt
“[t]hat [Magluta] engaged in the financial transaction knowing that the transaction
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Case: 14-14498 Date Filed: 08/30/2016 Page: 21 of 21
was designed in whole or in part to conceal or disguise the nature, location,
source, ownership, or the control of the proceeds of such specified unlawful
activity.” And the instructions stated that “[t]he statute does not make it an
offense merely to conduct financial transactions with the proceeds of narcotics
trafficking. The Government must also show that [Magluta] conducted the
charged transaction with the intent to conceal the nature, location, source,
ownership or control of the proceeds.” Thus, there is no question that the district
court’s instructions were a correct statement of the law, even as set out in Cuellar.
III. CONCLUSION
The district court’s denial of Magluta’s § 2255 motion is AFFIRMED.
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