United States v. Sally Barraza-Mena

Case: 14-51334 Document: 00513481525 Page: 1 Date Filed: 04/26/2016
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 14-51334 United States Court of Appeals
Fifth Circuit
FILED
UNITED STATES OF AMERICA, April 26, 2016
Lyle W. Cayce
Plaintiff - Appellee Clerk
v.
SALLY BARRAZA-MENA, also known as Sally Mena-Barraza,
Defendant - Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 3:13-CR-1726-18
Before STEWART, Chief Judge, and JONES, and DENNIS, Circuit Judges.
PER CURIAM:*
In this direct criminal appeal, Sally Barraza-Mena challenges her
conviction for conspiracy to launder monetary instruments in violation of 18
U.S.C. § 1956(h). Finding no reversible error, we affirm her conviction.
I.
Barraza-Mena’s prosecution arises from a federal law enforcement
investigation into a drug-trafficking operation run by Manuel Velasquez.
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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According to the evidence presented at Barraza-Mena’s trial, Velasquez
specialized in transporting marijuana from Mexico into the United States by
way of El Paso. Once in the United States, co-conspirators moved the
marijuana north utilizing both car haulers and motors homes. Co-conspirators
would then ship money back to El Paso so that it could be transported across
the border to Juarez, Mexico. According to one co-conspirator, some of these
money shipments contained as much as $750,000.
On August 15, 2012, Velasquez’s associates in El Paso received a
shipment of money from Kansas in the amount of $25,000. A co-conspirator
named Jose Antonio Cabral-Espinoza, who testified at trial, divided the money
amongst three women who were then instructed to take the money across the
border to Juarez. One of these women, Laura Nunez, was given $8,000 to take
through the Paso Del Norte port of entry into Juarez. Cabral-Espinoza told
Nunez that if authorities asked her any questions about the money, she should
“tell them that the money was for a stationwagon, van, Pacifica, that she had
seen on a lot, and to say that that vehicle wasn’t at the lot anymore.” 1
As Nunez was crossing the bridge to Juarez, an agent with the U.S.
Customs and Border Protection (“Customs”), Albert Sanchez, stopped Nunez
for an inspection after observing that she was clenching her purse close to her
body. When asked about the source of the $8,000 in her purse, Nunez told
Sanchez that the money was from the sale of two vehicles and that the rest of
the money had come from a loan. However, Nunez was unable to provide
details about the cars such as their make, model, or color. Upon further
questioning, Nunez eventually admitted that the money did not come from the
1 At trial, various law enforcement officials explained that there was an ongoing
“trend” of individuals providing similar stories about failed attempts to purchase cars in the
United States when explaining why they were crossing the border with large sums of cash.
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sale of cars or a loan. Rather, Nunez explained to the agents that someone had
given her the money just before she crossed the bridge and told her that she
would be paid in return for transporting it across the border. Agent Sanchez
then formally seized the money but allowed Nunez to cross the border. Nunez
was also provided with information about petitioning Customs for the return
of the $8,000. As explained at trial, in order to have such seized money
returned, an individual must complete a petition in English showing that the
money was not obtained by illegal means.
Enter Barraza-Mena, who worked as a licensed notary in El Paso and
whose brother had previously been Velasquez’s defense lawyer in a drug
distribution prosecution. On the day following the seizure, Velasquez spoke
with Barraza-Mena and explained to her what had happened with Nunez on
the bridge. After convincing Barraza-Mena to help obtain the return of the
seized money, Velasquez called Cabral-Espinoza and instructed him to take
Nunez to Barraza-Mena’s office in order to have the Customs petition notarized
and to obtain her assistance with completing the petition. Cabral-Espinoza
complied. As Cabral-Espinoza testified at trial, while at Barraza-Mena’s office,
Nunez provided her with details about what had happened at the bridge “with
the understanding that they had to come up with an idea as to how to get the
money back.” Barraza-Mena then assisted Nunez in drafting and ultimately
notarized the Customs petition. The petition stated that the $8,000 was “going
to be used to purchase a 2008 Chrysler Pacifica vehicle,” but that when Nunez
went to the dealership, the vehicle had been sold. It further stated that “[t]he
money was not related to any violation of the controlled substances act.”
Although Cabral-Espinoza testified that neither he nor Nunez expressly
mentioned at this meeting that the $8,000 was from marijuana trafficking,
Cabral-Espinoza also testified that Barraza-Mena knew this was drug money
and that Nunez’s story about purchasing a car was a lie. Further, although
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the petition provided that Nunez’s address was in El Paso, Cabral-Espinoza
testified at trial that Nunez told Barraza-Mena that she actually lived in
Juarez. On the day following their meeting, Nunez crossed the border back
into El Paso and then paid Barraza-Mena $500 for notarizing the petition. At
trial, a witness from the Texas Secretary of State’s Office explained that the
standard fee for notarizing a single document is $6.
Subsequently, on September 10, 2012, Barraza-Mena notarized a
Customs currency form for Nunez as part of the effort to reclaim the $8,000.
This was also done at Velasquez’s direction. Attached to this form were two
sales contracts in Spanish with English translations. The contracts stated that
Nunez sold a Ford for $3,250 on August 4, 2012, and a Chrysler for $4,250 on
July 20, 2012. Barraza-Mena notarized both translations on September 18,
2012, and stated that she had translated the originals from Spanish to English.
At trial, Cabral-Espinoza explained that these contracts represented a “faked
[ ] purchase and sale so they could justify the money.”
Ultimately, the government agreed to return the money to Nunez despite
the fact that it was related to an ongoing investigation. Prior to returning the
money, however, the government required Nunez to sign and notarize a hold
harmless agreement affirming that she would not seek further remuneration
from the government in connection with the seizure. Velasquez thereafter
spoke with Barraza-Mena about the need to notarize the hold harmless
agreement. On December 19, 2012, Velasquez called Cabral-Espinoza and
instructed him to take Nunez to Barraza-Mena’s office to obtain the requisite
notarization. As reflected in a recorded telephone call from this date
introduced at trial, Velasquez explained to Cabral-Espinoza that this is “what
they paid for,” referring to the $500 fee paid to Barraza-Mena.
Pursuant to Velasquez’s instructions, Barraza-Mena listed Nunez’s
address on the hold harmless agreement as Cabral-Espinoza’s address in El
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Paso rather Nunez’s actual address in Juarez. In doing so, however, Barraza-
Mena neglected to include Cabral-Espinoza’s apartment number. After this
omission came to light, Barraza-Mena told Cabral-Espinoza (in an intercepted
telephone call also introduced at trial) to call Customs with the correct address
and tell them that he was Nunez’s brother—which was not true. She further
advised Cabral-Espinoza to call Nunez first in order to confirm her brother’s
name so that they could “be on the same page.” In the same call, Barraza-
Mena asked Cabral-Espinoza: “And did you tell Manny [Velasquez] if he’s
going to send me a little gift or not?” Consistent with Barraza-Mena’s
instructions, Cabral-Espinoza subsequently called Customs, falsely identified
himself as Nunez’s brother, and explained that the apartment number had
been omitted on the hold harmless agreement.
On August 15, 2013, agents with the Drug Enforcement Agency (DEA)
arrested Barraza-Mena at her home. The arrest warrant listed the charges
against Barraza-Mena as conspiracy to launder monetary instruments and
conspiracy to possess with intent to distribute marijuana; however, the
warrant did not list any other individuals who were arrested in connection with
the investigation. Approximately half an hour after her arrest, Barraza-Mena
spontaneously asked the DEA agents “if this was about Velasquez.” At the
time, the agents were neither questioning Barraza-Mena nor otherwise
soliciting information from her.
In addition, DEA agents conducted a search of Barraza-Mena’s office
where they uncovered “at least three” notary books. During trial, a witness
from the Texas Secretary of State’s Office explained that notaries are required
under statute to preserve a record book “for the longer of the term of the
commission where the notarization occurred or three years following the date
of the notarization.” However, a review of the notary books seized from
Barraza-Mena’s office did not have any documentation reflecting that Barraza-
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Mena had notarized documents in connection with reclaiming the seized
$8,000.
Following a five-day trial, the jury convicted Barraza-Mena of conspiracy
to launder money in violation of 18 U.S.C. §§ 1956(a)(2)(A), (B)(i), & (h), but
acquitted her of conspiracy to possess with intent to distribute marijuana.
Barraza-Mena thereafter filed a motion for acquittal under Rule 29(a) of the
Federal Rules of Criminal Procedure (“Rule 29 Motion”), which the district
court denied in an eleven-page order. The district court sentenced Barraza-
Mena to five years of probation, which included six months in a home
confinement program, and also ordered her to pay a $2,000 fine. This appeal
followed.
II.
Barraza-Mena first argues that her conviction must be set aside because,
in her view, Texas notaries are categorically immunized from criminal liability
based on notarizing written instruments that contain the false statements of
others. According to Barraza-Mena, she “only notarized” the Customs
petitions for Nunez and did not swear to the facts contained therein, thus
rendering her conviction unlawful. This argument, however, rests on a
premise belied by the facts of this case and the law of this court.
The jury convicted Barraza-Mena of knowingly conspiring to launder
monetary instruments, which required it to find beyond a reasonable doubt “(1)
that there was an agreement between two or more persons to commit money
laundering and (2) that [Barraza-Mena] joined the agreement knowing its
purpose and with the intent to further the illegal purpose.” United States v.
Fuchs, 467 F.3d 889, 906 (5th Cir. 2006). In other words, in order to convict
Barraza-Mena, the jury was required to find far more than the fact that she
simply notarized the documents at issue: it was required to find that she
possessed the requisite knowledge and intent to join the conspiracy and to
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further its unlawful purpose. As we explain in Section IV below, the evidence
presented at trial amply supports such a finding by the jury in this case. Thus,
while we do not dispute that there could be a case where a money-laundering
conviction could not be premised solely on evidence that the defendant
notarized a document without more, this is not that case. In sum, the jury here
supportably found that Barraza-Mena was a co-conspirator—not a mere
scrivener.
Moreover, our own precedent reveals another fatal flaw in Barraza-
Mena’s argument. As the government accurately notes in its brief, we have
previously upheld the convictions of notaries when their duties have
intertwined with criminal wrongdoing. See, e.g., United States v. Nguyen, 493
F.3d 613, 617 (5th Cir. 2007); Adams v. United States, 156 F.2d 271, 273-74
(5th Cir. 1946). Barraza-Mena provides no persuasive reason explaining why
these precedents do not foreclose her novel theory of “notary immunity.”
Accordingly, we reject the argument and thus proceed to examine her other
challenges on appeal.
III.
Barraza-Mena next argues that her conviction must be vacated because
the government’s conduct was so “outrageous” as to constitute a violation of
her rights to due process. In short, she avers that because Customs agents
allegedly knew the $8,000 constituted drug money, they acted improperly by
instructing Nunez on how to submit petitions for the money’s return. As the
parties agree, we review this issue for plain error because Barraza-Mena failed
to raise it in the district court. See United States v. Sandlin, 589 F.3d 749, 758
(5th Cir. 2009) (reviewing for plain error a claim of outrageous government
conduct not raised at trial).
“The standard for proving outrageous government conduct is extremely
demanding,” and will be satisfied in only the “rarest” of circumstances. Id. at
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758-59. The standard “becomes even more difficult to meet” where, as here,
our review is for plain error. Id. “Government misconduct does not mandate
dismissal of an indictment unless it is so outrageous that it violates the
principle of fundamental fairness under the due process clause of the Fifth
Amendment.” United States v. Gutierrez, 343 F.3d 415, 421 (5th Cir. 2003)
(quoting United States v. Johnson, 68 F.3d 899, 902 (5th Cir. 1995)).
“Accordingly a defendant claiming outrageous government conduct bears ‘an
extremely high burden of proof,’ and must demonstrate, in light of the totality
of the circumstances, both substantial government involvement in the offense
and a passive role by the defendant.” Id. (quoting United States v. Asibor, 109
F.3d 1023, 1039 (5th Cir. 1997)). “The requirement that the defendant play
only a passive role means that ‘[a] defendant who actively participates in the
crime may not avail himself of the defense.’” Id. (quoting United States v.
Evans, 941 F.2d 267, 271 (5th Cir. 1991)).
Applying these principles to the instant case, we conclude that the
district court did not commit plain error in failing to sua sponte dismiss the
indictment for outrageous government conduct. As an initial matter, the
record here does not reflect “substantial government involvement in the
offense” at issue. Nunez was “randomly” selected for inspection by Customs
officials as she was attempting to transport the $8,000 across the border, and
Barraza-Mena fails to point to any persuasive evidence in the record showing
that Customs agents actually coached Nunez into involving Barraza-Mena in
the conspiracy. Although Barraza-Mena emphasizes that Customs agents
purportedly knew that the $8,000 was under investigation when they allowed
Nunez to reclaim the money upon filing a hold harmless agreement, the
evidence nevertheless shows that Barraza-Mena had already met multiple
times with Velasquez’s associates by this point and substantially assisted with
efforts to repossess the funds. Contrary to Barraza-Mena’s argument, we
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previously have rejected similar due process claims where the government’s
conduct was significantly less attenuated from the criminal conduct at issue.
See, e.g., United States v. Tobias, 662 F.2d 381, 386-87 (5th Cir. 1991) (rejecting
due process claim where federal law enforcement placed an advertisement that
marketed the ingredients to make PCP and thereafter gave advice to defendant
on how to produce the drug).
Likewise, Barraza-Mena has not shown that she played only a “passive
role” in the conspiracy to commit money laundering. Barraza-Mena met with
Cabral-Espinoza and Nunez on multiple occasions in order to complete the
documentation necessary to repossess the $8,000. She also spoke with
Velasquez multiple times about these efforts. As Cabral-Espinoza explained
at trial, rather than simply notarizing the documents at issue, Barraza-Mena
helped Velasquez and his associates “come up with an idea as to how to get the
money back,” and some of their meetings lasted far longer than the amount of
time that it would reasonably take to simply notarize a document. Further,
although notaries are generally only paid $6 for notarizing documents,
Barraza-Mena ultimately was paid $500, and even requested that Velasquez
send her another “little gift.” Moreover, as explained above, Barraza-Mena
also instructed Cabral-Espinoza to lie to Customs agents about his identity in
order to reclaim the money. In light of this evidence, we cannot say that
Barraza-Mena played only a “passive role” in the offense. Accordingly, we
reject her due process claim.
IV.
Barraza-Mena next contends that the evidence at trial was insufficient
to convict her of conspiracy to commit money laundering. Because Barraza-
Mena properly preserved her sufficiency challenge, we review de novo the
denial of her Rule 29 Motion. See United States v. Daniels, 723 F.3d 562, 569
(5th Cir. 2013). “[T]he relevant question is whether, after viewing the evidence
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in the light most favorable to the prosecution, any rational trier of fact could
have found the essential elements of the crime beyond a reasonable doubt.” Id.
(quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)). “All reasonable
inferences from the evidence must be construed in favor of the jury verdict.”
United States v. Akpan, 407 F.3d 360, 370 (5th Cir. 2005) (internal quotation
marks and citation omitted). “The jury retains the sole authority to weigh any
conflicting evidence and to evaluate the credibility of the witnesses.” United
States v. Grant, 683 F.3d 639, 642 (5th Cir. 2012) (internal quotations marks
and citation omitted). In order to be sufficient, “‘[t]he evidence need not
exclude every reasonable hypothesis of innocence or be wholly inconsistent
with every conclusion except that of guilt.” Id. (internal quotation marks and
citation omitted).
As explained above, in order to convict Barraza-Mena of conspiracy to
launder monetary instruments in violation of 18 U.S.C. § 1956(h), the
government had to prove beyond a reasonable doubt “(1) that there was an
agreement between two or more persons to commit money laundering and (2)
that [Barraza-Mena] joined the agreement knowing its purpose and with the
intent to further the illegal purpose.” Fuchs, 467 F.3d at 906. “Direct evidence
of a conspiracy is unnecessary; each element may be inferred from
circumstantial evidence.” United States v. Delgado, 668 F.3d 219, 226 (5th Cir.
2012) (internal quotation marks and citation omitted). Where a conspiracy has
multiple objects, “[e]ven if there was insufficient evidence as to one of the
objects of the conspiracy, we will nonetheless uphold the conspiracy conviction
if there was sufficient evidence as to the object of the other.” Fuchs, 467 F.3d
at 906. “However, there is insufficient evidence of a conspiracy if the
Government has only piled inference upon inference upon which to base a
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conspiracy charge.” United States v. Umawa Oke Imo, 739 F.3d 226, 235 (5th
Cir. 2014) (internal quotation marks and citation omitted).
The indictment alleged that the object of the conspiracy was to transport,
transmit, and transfer or attempt to transport, transmit and transfer
monetary instruments from the United States to Mexico with either (1) the
intent to promote marijuana trafficking or (2) knowing the monetary
instruments involved in the transportation or transfer represented the
proceeds of some form of unlawful activity and knowing that such
transportation and transfer was designed in whole or in part to conceal or
disguise the nature, location, source, ownership, or control of the proceeds in
violation of 18 U.S.C. § 1956(a)(2)(A) & (B)(i).
After carefully reviewing the record, pertinent case law, and the parties’
respective briefs, we conclude that there was sufficient evidence to sustain
Barraza-Mena’s conviction. At trial, Cabral-Espinoza testified in detail not
only about Velasquez’s drug operation but also about the agreement between
Velasquez and himself to transport the $8,000 of drug money into Mexico and
to conceal its unlawful origins from Customs. Although Cabral-Espinoza was
a cooperating witness, the jury was free to credit his testimony. See United
States v. Shoemaker, 746 F.3d 614, 623 (5th Cir. 2014) (observing that “a
conviction may be based even on uncorroborated testimony of an accomplice or
of someone making a plea bargain with the government, provided that the
testimony is not incredible or otherwise insubstantial on its face.” (internal
quotation marks and citation omitted)).
Further, there was ample evidence presented at trial showing that
Barraza-Mena possessed the requisite knowledge and intent to join the
conspiracy and to further its unlawful purpose by assisting Velasquez and his
associates in transporting the money across the border and concealing its
unlawful origins. Cabral-Espinoza testified that Barraza-Mena knew the
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$8,000 represented drug money and also knew that the story Nunez told her
about the vehicles was a lie. This testimony is consistent with other evidence
showing that Barraza-Mena knew of and ignored other lies related to efforts to
reclaim the $8,000. For example, although Barraza-Mena knew that Nunez
lived in Juarez, she nevertheless provided an address in El Paso on the
Customs documents. Likewise, as the recorded calls introduced at trial show,
Barraza-Mena encouraged Cabral-Espinoza to lie to Customs agents by telling
them that he was Nunez’s brother and even instructed Cabral-Espinoza to
confirm Nunez’s brother’s name so everyone was “on the same page.”
In addition, there was a significant amount of circumstantial evidence
presented at trial on which the jury supportably could rely in finding Barraza-
Mena guilty. For example, Barraza-Mena was paid $500 for notarizing only a
few documents despite the fact that notaries in Texas are generally paid only
$6 per document, and she even requested that Velasquez give her another
“little gift” for her assistance. Moreover, Velasquez had to “convince” Barraza-
Mena for her assistance in reclaiming the money, which a reasonable juror
could conclude shows that Barraza-Mena knew she was doing far more than
merely notarizing documents. Considered along with the other evidence
presented at trial, a reasonable juror could likewise infer guilt from the
evidence showing that none of the record books seized from Barraza-Mena’s
office document her notarization of the Customs documents—despite Texas
law requiring her to preserve those records. In sum, we conclude that the
government presented sufficient evidence for the jury to convict Barraza-Mena
of conspiracy to commit money laundering. Accordingly, the district court did
not err in denying her Rule 29 Motion.
V.
In her final issue on appeal, Barraza-Mena contends that the statute
under which she was convicted, 18 U.S.C. § 1956(h), is unconstitutional as
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applied to her conduct under the void-for-vagueness doctrine. “[T]he void-for-
vagueness doctrine requires only that a penal statute define the criminal
offense with sufficient definiteness that ordinary people can understand what
conduct is prohibited in a manner that does not encourage arbitrary and
discriminatory enforcement.” United States v. Cavalier, 17 F.3d 90, 93 (5th
Cir. 1994) (summarily rejecting defendant’s as-applied challenge to 18 U.S.C.
§ 1956). Because she failed to raise this constitutional challenge before the
district court, we review the issue for plain error only. United States v. Conlan,
786 F.3d 380, 385-86 (5th Cir. 2015).
Barraza-Mena’s vagueness challenge rests on the false premise that she
simply notarized the documents at issue without knowledge or intent to join
and further the money-laundering conspiracy. According to her, because she
“merely” assisted in the preparation of the Customs petition by notarizing the
documents, the criminal statute does not provide “fair notice” of what conduct
is criminal in circumstances like her own. Once again, Barraza-Mena’s
argument fails because it erroneously trivializes her role in the offense. As
explained above, in order to convict her, the jury was required to find that she
knowingly joined the conspiracy and intended to further its unlawful purpose.
Fuchs, 467 F.3d at 906. As the Supreme Court has long observed, such
“scienter requirements alleviate vagueness concerns.” Gonzalez v. Carhart,
550 U.S. 124, 149 (2007). Accordingly, we perceive no plain error in the district
court’s failure to dismiss the indictment on void-for-vagueness grounds.
VI.
For these reasons, we AFFIRM Barraza-Mena’s conviction.
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