United States v. Gregory Silveira

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 18-56509
Plaintiff-Appellee,
D.C. Nos.
v. 5:15-cr-00036-VAP
5:17-cv-02039-VAP
GREGORY SILVEIRA,
Defendant-Appellant. OPINION
Appeal from the United States District Court
for the Central District of California
Virginia A. Philips, Chief District Judge, Presiding
Argued and Submitted July 8, 2020
Pasadena, California
Filed May 13, 2021
Before: Bobby R. Baldock, * Marsha S. Berzon, and
Daniel P. Collins, Circuit Judges.
Opinion by Judge Collins
*
The Honorable Bobby R. Baldock, United States Circuit Judge for
the U.S. Court of Appeals for the Tenth Circuit, sitting by designation.
2 UNITED STATES V. SILVEIRA
SUMMARY **
28 U.S.C. § 2255The panel affirmed the district court’s denial of Gregory
Silveira’s 28 U.S.C. § 2255 motion in which Silveira sought
to vacate his conviction and sentence for money laundering,
in violation of 18 U.S.C. § 1956(a)(1)(A)(i), in a case in
which the underlying specified unlawful activity was an
illegal gambling operation in violation of 18 U.S.C. § 1955.
In his § 2255 motion, Silveira argued that, due to
ineffective assistance of counsel, his guilty plea was not
knowing and voluntary. Silveira averred that his counsel
never discussed with him the meaning or definition of the
word “proceeds,” but simply told him that the funds he
received from a gambler who was paying a gambling debt
were tainted and that the transfer of those funds was money
laundering. Silveira contended that this advice constituted
ineffective assistance because, under a correct understanding
of the elements of money laundering, the funds he received
from the gambler did not constitute “proceeds” at the time
Silveira received them. Silveira further contended that, for
similar reasons, he did not have the requisite knowledge that
the funds were “proceeds.”
Reviewing de novo, the panel held that the district court
correctly rejected Silveira’s ineffective-assistance-of-
counsel claim.
**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
UNITED STATES V. SILVEIRA 3
The panel wrote that by knowingly receiving the funds
as a “conduit” from the gambler for forwarding to a
bookmaking operation, Silveira thereby “conduct[ed] . . .
part of an illegal gambling business” in violation of
18 U.S.C. § 1955(a). The panel rejected Silveira’s
contention that because he was assertedly acting only as the
agent of a bettor, he falls within the exception for a mere
bettor. The panel explained that where, as here, a person
knowingly acts as a financial intermediary between the
gambler and the bookmaker, he or she is not a mere bettor,
but plays an integral part in the maintenance of illegal
gambling and is therefore included within the scope of
§ 1955.
The panel explained that because Silveira violated
§ 1955(a) upon his unlawful receipt of the funds, they
became property obtained through a violation of § 1955(a);
that the funds were therefore “proceeds;” and that Silveira’s
subsequent transactions involving those proceeds
constituted money laundering in violation of § 1956.
The panel concluded that even if Silveira’s lawyer
conducted an inadequate legal analysis and failed to properly
explain “proceeds” to Silveira, there is no prejudice under
Strickland v. Washington because Silveira did not show that
the lawyer thereby overlooked a viable defense to the
charges.
COUNSEL
James T. Duff (argued), Law Offices of James T. Duff, Los
Angeles, California, for Defendant-Appellant.
4 UNITED STATES V. SILVEIRA
Jerry C. Yang (argued), Deputy Chief, Riverside Branch
Office; L. Ashley Aull, Chief, Criminal Appeals Section;
Nicola T. Hanna, United States Attorney; United States
Attorney’s Office, Riverside, California; for Plaintiff-
Appellee.
OPINION
COLLINS, Circuit Judge:
Gregory Silveira appeals the denial of his motion under
28 U.S.C. § 2255, in which he sought to vacate his
conviction and sentence for money laundering in violation
of 18 U.S.C. § 1956(a)(1)(A)(i). In his § 2255 motion,
Silveira argues that, due to ineffective assistance of counsel,
his guilty plea was not knowing and voluntary. Finding that
Silveira failed to make such a showing, the district court
denied Silveira’s motion. We have jurisdiction under
28 U.S.C. §§ 1291 and 2253(a), and we affirm.
I
In June 2015, Silveira pleaded guilty to three counts of
money laundering in violation of 18 U.S.C.
§ 1956(a)(1)(A)(i). As set forth in the plea agreement and at
the change-of-plea hearing, the factual basis for the plea was
as follows. Since at least February 2010, Silveira
“participated in the operation of an illegal gambling
operation, which accepted and placed bets on sporting
events.” In late March 2010, Silveira received into one of
his bank accounts a wire transfer of approximately $2.75
million that he then knew “represented proceeds from illegal
sports betting, in violation of 18 U.S.C. § 1955.”
Specifically, Silveira knew that these “proceeds” had been
“generated by the illegal sports betting business in which
UNITED STATES V. SILVEIRA 5
defendant participated in.” On March 29, he transferred
those funds, in two transactions, into a second bank account
that he controlled, and the next day, he transferred most of
those funds from the second account into a third account that
he also controlled. Silveira made these transfers “with the
intent to promote the carrying on of an illegal gambling
operation, in violation of 18 U.S.C. § 1955.” After
conducting a plea colloquy under Federal Rule of Criminal
Procedure 11, the district court found that there was an
adequate factual basis for the plea and that the plea was
knowingly and voluntarily made.
Prior to sentencing, Silveira obtained new counsel and
sought to withdraw his guilty plea on the grounds that his
prior attorney had been ineffective and that the factual basis
for the plea had been insufficient. The Government opposed
the motion as legally and factually inadequate, and the
district court denied the motion. Silveira moved for
reconsideration, but the district court denied that motion as
well. The district court sentenced Silveira to 12 months and
one day in prison.
Silveira appealed the denial of his motions seeking to
withdraw his guilty plea, but we dismissed the appeal in light
of the appeal waiver contained in Silveira’s plea agreement.
United States v. Silveira, 695 F. App’x 215 (9th Cir. 2017).
Although we recognized that an appeal waiver will not be
enforced if, inter alia, the plea was taken in violation of
Rule 11 or was the product of ineffective assistance of
counsel, we concluded that there was no violation of Rule 11
and that the claim of ineffective assistance should be
addressed in a motion under 28 U.S.C. § 2255. Id. at 216.
Silveira consequently filed a motion under 28 U.S.C.
§ 2255, seeking to set aside his conviction on the grounds
that, due to ineffective assistance of counsel, his guilty plea
6 UNITED STATES V. SILVEIRA
was not knowingly and voluntarily made. The district court
denied the motion and denied a certificate of appealability.
This court subsequently granted a certificate of appealability
limited to the issue of “whether [Silveira’s] guilty plea was
not knowing and voluntary due to the ineffective assistance
of counsel.”
II
A guilty plea is not knowingly and voluntarily made if it
was the result of ineffective assistance of counsel under “the
two-part Strickland v. Washington test.” Hill v. Lockhart,
474 U.S. 52, 56–58 (1985) (citing Strickland v. Washington,
466 U.S. 668 (1984)); see also Lee v. United States,
137 S. Ct. 1958, 1965 (2017). To establish ineffective
assistance under that test here, Silveira had to show (1) that
his counsel’s advice to plead guilty was not “‘within the
range of competence demanded of attorneys in criminal
cases,’” Hill, 474 U.S. at 56 (quoting McMann v.
Richardson, 397 U.S. 759, 771 (1970)); and (2) “that there
is a reasonable probability that, but for counsel’s errors, he
would not have pleaded guilty and would have insisted on
going to trial,” id. at 59.
In attacking his guilty plea, Silveira averred that his
counsel had never “discussed with [him] the meaning or
definition of the word ‘proceeds,’” but had simply told him
that “the funds [he] received from the gambler were tainted
and that the transfer of those funds was money laundering.”
Silveira contends that this advice constituted ineffective
assistance because, under a correct understanding of the
elements of money laundering, the funds he received from a
gambler who was paying a gambling debt did not constitute
“proceeds” at the time Silveira received them. That is true,
according to Silveira, “because the money did not originate
from a separate underlying criminal offense and because
UNITED STATES V. SILVEIRA 7
Silveira was the agent of the gambler who controlled the
funds.” Silveira further contends that, for similar reasons,
he did not have the requisite knowledge that the funds were
“proceeds.” Reviewing de novo, see United States v.
Rodrigues, 347 F.3d 818, 823 (9th Cir. 2003), we hold that
the district court correctly rejected Silveira’s ineffective-
assistance-of-counsel claim. Even assuming arguendo that
the substantive advice actually given by Silveira’s counsel
was deficient under Strickland, we nonetheless conclude that
Silveira has failed to establish the requisite prejudice.
In pertinent part, the money laundering statute imposes
criminal punishment on anyone who, “knowing that the
property involved in a financial transaction represents the
proceeds of some form of unlawful activity, conducts or
attempts to conduct such a financial transaction which in fact
involves the proceeds of specified unlawful activity” and
does so “with the intent to promote the carrying on of
specified unlawful activity.” 18 U.S.C. § 1956(a)(1)(A)(i)
(emphasis added). The statute defines “proceeds” to mean
“any property derived from or obtained or retained, directly
or indirectly, through some form of unlawful activity.” Id.§ 1956(c)(9). Here, the charging information and the plea
agreement confirmed that the “specified unlawful activity”
underlying Silveira’s § 1956 charges was the conduct of an
illegal gambling business in violation of 18 U.S.C.
§ 1955(a). See id. § 1956(c)(7)(A) (generally including any
“offense listed in section 1961(1)” within the definition of
“specified unlawful activity” for purposes of § 1956); id.
§ 1961(1) (listing numerous provisions, including § 1955).
Section 1955, in turn, defines an “illegal gambling business”
to include any gambling business that is proscribed under
state law and that meets certain other criteria not at issue
8 UNITED STATES V. SILVEIRA
here. Id. § 1955(b)(1). 1 California law, which applies to the
underlying gambling activity in this case, imposes criminal
punishment on anyone who, inter alia, “receives, holds, or
forwards . . . any money, thing or consideration of value, . . .
staked, pledged, bet or wagered, or to be staked, pledged, bet
or wagered, or offered for the purpose of being staked,
pledged, bet or wagered, upon the result, or purported
result,” of any “contest . . . of skill” or “any lot, chance,
casualty, unknown or contingent event whatsoever.” See
Cal. Pen. Code § 337a(a)(3) (emphasis added).
Because Silveira concedes that he received money that
he knew to be in payment of a sports gambling debt, he
“receive[d]” money that was to be paid over as funds “bet or
wagered” on a “contest . . . of skill,” and so he violated
California Penal Code § 337a(a)(3) upon receiving that
money. And by knowingly receiving these funds as a
“conduit” from the gambler for forwarding to the
bookmaking operation, Silveira thereby “conduct[ed] . . .
part of an illegal gambling business” in violation of
18 U.S.C. § 1955(a). We have read the term “conducts” in
§ 1955 very broadly, stating that “[e]ach person, whatever
his function, who plays an integral part in the maintenance
of illegal gambling, conducts an ‘illegal gambling business’
and is included within the scope of § 1955,” with the “sole
exception” being “the player or bettor.” United States v.
Sacco, 491 F.2d 995, 1003 (9th Cir. 1974) (en banc); accord
United States v. Jones, 491 F.2d 1382, 1384 (9th Cir. 1974);
see also Sanabria v. United States, 437 U.S. 54, 70 n.26
(1978) (“Numerous cases have recognized that 18 U.S.C.
1
Specifically, the statute also requires that the gambling business
involve a specified number of people and a specified level of activity.
See 18 U.S.C. § 1955(b)(1)(ii)–(iii). Silveira has not contested that these
requirements were satisfied by the particular gambling operation in this
case.
UNITED STATES V. SILVEIRA 9
§ 1955 (1976 ed.) proscribes any degree of participation in
an illegal gambling business, except participation as a mere
bettor.” (emphasis added)). Silveira contends that he falls
within the exception for a mere bettor, because he was
assertedly acting only as the agent of a bettor. We disagree.
Where, as here, a person knowingly acts as a financial
intermediary between the gambler and the bookmaker, he or
she is not a mere bettor. On the contrary, such a person
“plays an integral part in the maintenance of illegal
gambling” and is therefore “included within the scope of
§ 1955.” Sacco, 491 F.2d at 1003. 2
Because Silveira violated § 1955(a) upon his unlawful
receipt of the funds in question, they thereby became
“property derived from or obtained or retained, directly or
indirectly, through” a violation of § 1955(a), and they were
therefore “proceeds.” Id. § 1956(c)(9) (emphasis added).
Thus, even assuming that Silveira is correct in contending
that the funds were not unlawfully obtained by the gambler
before they were paid over to Silveira, the funds are still
“proceeds,” under the plain language of the relevant statutes,
once Silveira received them, knowing that they represented
payment of a gambling debt. Given that the money wired to
Silveira thus did constitute “proceeds,” his subsequent
2
Moreover, as we noted in upholding the adequacy of the factual
basis for Silveira’s guilty plea to a violation of the money laundering
statute, Silveira admitted, as a factual matter, that he had “participated in
the operation of an illegal gambling operation” and that he subsequently
made the three bank transfers in question with “the intent to promote the
carrying on of an illegal gambling operation.” Silveira, 695 F. App’x
at 216. In light of these admissions, Silveira is poorly positioned to now
contend that he acted exclusively as the bettor’s agent and that he did not
“conduct” an illegal gambling business by receiving funds that were to
be used to promote such a gambling operation.
10 UNITED STATES V. SILVEIRA
transactions involving those proceeds constituted money
laundering in violation of § 1956.
Accordingly, even if Silveira’s lawyer conducted an
inadequate legal analysis and failed to properly explain
“proceeds” to Silveira, there is no prejudice under Strickland
because Silveira has not shown that the lawyer thereby
overlooked a viable defense to the charges. See Shah v.
United States, 878 F.2d 1156, 1162 (9th Cir. 1989). As a
result, there is no basis for finding a “reasonable probability”
that, had Silveira been properly advised of the meaning of
“proceeds,” Silveira “would not have pleaded guilty and
would have insisted on going to trial.” Hill, 474 U.S. at 59;
cf. Lee, 137 S. Ct. at 1967–69 (§ 2255 movant “adequately
demonstrated a reasonable probability that he would have
rejected the plea had he known that it would lead to
mandatory deportation”). Indeed, in the absence of an
overlooked viable defense, Silveira would likely have faced
a longer sentence had he proceeded to trial rather than accept
the plea agreement. As the district court correctly noted,
“[i]t simply is not plausible that facing these consequences,
and considering the strength of the Government’s case,
Silveira would have decided to proceed to trial.”
* * *
In view of the foregoing, the district court correctly
denied Silveira’s § 2255 motion.
AFFIRMED.