USA v. Rodrigo Molina

FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
FEBRUARY 9, 2011
JOHN LEY
CLERK
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 09-15246
Non-Argument Calendar
________________________
D. C. Docket No. 08-20221-CR-AJ
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RODRIGO MOLINA,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(February 9, 2011)
Before TJOFLAT, BLACK and WILSON, Circuit Judges.
PER CURIAM:
Rodrigo Molina appeals his convictions and sentences, which totaled 42

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months’ imprisonment, for conspiracy to launder money, in violation of 18 U.S.C.
§ 1956(h), and money laundering, in violation of 18 U.S.C. §§ 1956(a)(1)(A)(i),
(a)(1)(B)(i), and § 1957. Citing United States v. Santos, 553 U.S. 507, 128 S.Ct.1
2020, 170 L.Ed.2d 912 (2008), Molina argues that the evidence was insufficient to
convict him for conspiracy to launder money and for the substantive money
laundering offenses because there was no evidence that he knew that the funds that
he laundered were profits as opposed to gross receipts from wire fraud and
transporting stolen property.
We review the denial of a motion for judgment of acquittal and the
sufficiency of the evidence de novo, drawing all reasonable inferences and
credibility assessments in the government’s favor. United States v. Mintmire, 507
F.3d 1273, 1289 (11th Cir. 2007). We uphold a conviction if, “after viewing the
evidence 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. (quotation and emphasis omitted).
To convict a defendant for conspiracy to commit money laundering under 18
The substantive money laundering offenses included two counts based on a specific1
transaction involving the proceeds of a specific unlawful activity, in violation of §§ 1956
(a)(1)(A)(i) and (a)(1)(B)(i), and two counts based on monetary transactions in criminally
derived property of a value greater than $10,000 that was derived from specified unlawful
activities, in violation of § 1957. The district court sentenced Molino to concurrent prison terms
of 42 months for these convictions.
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U.S.C. § 1956(h), the government must prove beyond a reasonable doubt that an
agreement existed between two or more persons to commit a crime, and that the
defendant knowingly and voluntarily joined or participated in the conspiracy.
United States v. Silvestri, 409 F.3d 1311, 1328 (11th Cir. 2005). “Conspiracy may
be proven by circumstantial evidence and the extent of the defendant’s knowledge
of details in the conspiracy does not matter if the proof shows that he knew the
essential objective of the conspiracy.” United States v. Kennard, 472 F.3d 851,
856 (11th Cir. 2006) (quotation and alterations omitted). In the case of a
conspiracy to launder money, the “essential aspect of the conspiracy charge” is that
the defendant “knew that the funds involved in the transactions represented the
proceeds of unlawful activity.” United States v. Awan, 966 F.2d 1415, 1434 (11th
Cir. 1992).
To convict a defendant of money laundering in violation of
§ 1956(a)(1)(A)(i), the government must prove beyond a reasonable doubt that the
defendant (1) engaged in a financial transaction, (2) which he knew involved funds
that were the proceeds of some form of unlawful activity, (3) where the funds
involved in the financial transaction in fact were the proceeds of a specified
unlawful activity, and (4) that the defendant engaged in the financial transaction
with the intent to promote the carrying on of the specified unlawful activity. See
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18 U.S.C. § 1956(a)(1)(A)(i). To convict a defendant for money laundering in
violation of § 1956(a)(1)(B)(i), the government must prove the same first three
elements enumerated under § 1956(a)(1), but the fourth element, instead, requires
the government to prove 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).
In United States v. Santos, the Supreme Court considered “whether the term
‘proceeds’ in the federal money laundering statute, 18 U.S.C. § 1956(a)(1), means
‘receipts’ or ‘profits.’” 553 U.S. at 509, 128 S.Ct. at 2022. In Santos, the
defendants were convicted of money laundering, in violation of § 1956(a)(1), for
activities related to an illegal gambling business. Id. 553 U.S. at 509-10, 128 S.Ct.
at 2022-23. The district court granted the defendants’ 28 U.S.C. § 2255 motions to
vacate the money laundering convictions, finding that the term “proceeds” applies
only to transactions involving criminal profits, not criminal receipts, and that there
was no evidence that the transactions that occurred in this gambling business
involved profits. Id. 553 U.S. at 510, 128 S.Ct. at 2023. A plurality of four
justices held that the statute’s use of “proceeds” meant “profits.” Id. at 513-14,
128 S.Ct. at 2025. Justice Stevens concurred only in the judgment and stated that,
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because he believed that Congress delegated to federal judges the task of filling in
the statute’s gaps, the Supreme Court “need not pick a single definition of
‘proceeds’ applicable to every unlawful activity, no matter how incongruous some
applications may be.” Id. at 524-26, 128 S.Ct. at 2031-32 (Stevens, J., concurring).
Justice Stevens concluded that “[t]he revenue generated by a gambling business
that is used to pay the essential expenses of operating that business is not proceeds
within the meaning of the money laundering statute.” Id. at 528, 128 S.Ct. 2033
(Stevens, J., concurring) (quotations omitted).
After the plurality’s decision in Santos, we stated that “Santos has limited
precedential value.” United States v. Jennings, 599 F.3d 1241, 1252 (11th Cir.
2010) (quotation omitted) (reviewing defendant’s argument for plain error); see
also United States v. Demarest, 570 F.3d 1232, 1242 (11th Cir. 2009), cert. denied,
130 S.Ct. 421 (2009) (noting Santos’s limited precedential value). We noted that
“[w]hen a fragmented [Supreme] Court decides a case and no single rationale
explaining the result enjoys the assent of five Justices, the holding of the Court
may be viewed as that position taken by those Members who concurred in the
judgments on the narrowest grounds.” Jennings, 599 F.3d at 1252. Thus, we held
that “[t]he narrow holding in Santos, at most, was that the gross receipts of an
unlicensed gambling operation were not ‘proceeds’ under section 1956.” Id.
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(quotation omitted). Accordingly, in contexts other than an unlicensed gambling
operation, we have continued to apply our previous definition of “proceeds” to
include “receipts as well as profits.” Id.; see also Silvestri, 409 F.3d at 1333
(noting that, in reviewing a defendant's money laundering conviction under 18
U.S.C. § 1957, the term “proceeds” represents total revenue).
To convict a defendant of money laundering under § 1957 the government
must prove (1) that the defendant knowingly engaged or attempted to engage in a
monetary transaction in criminally derived property of a value greater than
$10,000, and (2) that the property is derived from specified unlawful activity. See
18 U.S.C. § 1957(a); Silvestri, 409 F.3d at 1332-33. The statute explicitly provides
that “the Government is not required to prove the defendant knew that the offense
from which the criminally derived property was derived was specified unlawful
activity.” 18 U.S.C. § 1957(c).
Finally, we have “long recognized that the knowledge element of a violation
of a criminal statute can be proved by demonstrating either actual knowledge or
deliberate ignorance.” United States v. Hristov, 466 F.3d 949, 952 (11th Cir. 2006)
(quotation omitted). “[I]f a party has his suspicion aroused but then deliberately
omits to make further enquiries, because he wishes to remain in ignorance, he is
deemed to have knowledge.” Id. (quotation omitted). We have applied the
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deliberate ignorance theory to cases involving substantive guilt determined by a
jury, to determinations of relevant conduct at sentencing, and to cases where the
defendant was charged with conspiracy. Id. at 953-54; see also Kennard, 472 F.3d
at 858 (indicating that, with sufficient evidence, a deliberate ignorance theory may
properly support a conviction for a conspiracy to launder money).
Viewing the evidence in the light most favorable to the government, we
conclude that the government proved via circumstantial evidence that Molina
“knew the essential objective of the conspiracy,” Kennard, 472 F.3d at 856, and
via direct evidence his deliberate ignorance as to the underlying fraud, see Hristov,
466 F.3d at 952 (holding that deliberate ignorance is sufficient to satisfy the
knowledge element required for a criminal conviction).
Given the evidence that Molina was involved with opening or controlling 28
different bank accounts, his lack of surprise at the FBI seizures of several bank
accounts, his actions in handling complaints from victims of the telemarketing
fraud, and his role in resolving problems with the banks, there was sufficient
evidence to demonstrate that Molina knew that he was involved in financial
transactions designed to launder money fraudulently obtained from innocent
victims. Further, there was sufficient evidence of Molina’s deliberate ignorance to
substitute for any lack of actual knowledge of the underlying fraud. Specifically,
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in addition to Molina’s responsibilities in dealing with the victims and the banks,
Molina told U.S. Postal Inspector Arthur Frevola that he did not know everything
about the accounts that he helped open and control, and that he did not want to
know everything. Because Molina deliberately omitted to make further inquiries
about the bank accounts and the source of the funds in those accounts in order to
remain ignorant, Molina is deemed to have knowledge of the underlying specified
unlawful activity. See Hristov, 466 F.3d at 952. Thus, a rational trier of fact could
have found Molina guilty of conspiracy to launder money, as well as the
substantive money laundering charges, beyond a reasonable doubt.
Furthermore, it was not necessary for the government to prove that Molina
knew that the funds he was laundering were the profits from the fraudulent
telemarketing operation rather than the gross receipts because the government was
not required to prove that the funds were profits as opposed to gross receipts. See
Jennings, 599 F.3d at 1252. In contexts other than an unlicensed gambling
operation, we have continued to apply our definition of “proceeds” to include
“receipts as well as profits.” Id. Because neither the underlying telemarketing
scheme or Molina’s activities involved unlicensed gambling, the government’s
proof of the gross receipts into the bank accounts under Molina’s control was
sufficient to satisfy the statutory definition of “proceeds.”
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Molina next argues that his convictions should be reversed because the
government constructively amended the indictment during its rebuttal of Molina’s
closing argument to the jury. Molina asserts that the prosecutor’s statement that
Molina only had to know that he was laundering the funds from any unlawful
activity amended the indictment so that the jury could convict him on the basis of
unlicensed securities dealings, rather than the unlawful activity specified in the
indictment. Molina then reasserts his argument that the government did not
present evidence that he laundered profits as opposed to gross receipts.
When not raised before the district court, issues regarding constructive
amendment of an indictment are reviewed for plain error. United States v. Dennis,
237 F.3d 1295, 1299 (11th Cir. 2001). We may correct plain error only if there is
(1) error, (2) that is plain, (3) that affects substantial rights, (4) that seriously
affects the fairness, integrity, or public reputation of judicial proceedings. See
United States v. Cotton, 535 U.S. 625, 631, 122 S.Ct. 1781, 1786, 152 L.Ed.2d 860
(2002).
“An amendment to an indictment occurs when the essential elements of the
offense contained in the indictment are altered to broaden the possible bases for
conviction beyond what is contained in the indictment.” Dennis, 237 F.3d at 1299
(quotation omitted). The indictment may be amended as a result of erroneous jury
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instructions or a prosecutor’s statements. United States v. Castro, 89 F.3d 1443,
1453 (11th Cir. 1996). When considering an argument that an indictment was
constructively amended, we are required to determine whether the prosecutor’s
actions, viewed in context, resulted in either the literal or effective expansion of the
indictment. United States v. Behety, 32 F.3d 503, 508-09 (11th Cir. 1994). “When
a constructive amendment occurs it violates a fundamental principle stemming
from the Fifth Amendment” which requires that a defendant “only be convicted for
a crime charged in the indictment.” Castro, 89 F.3d at 1453 (quotation omitted).
In Castro, to determine whether a prosecutor’s single remark constructively
amended an indictment, we viewed the remark in light of the district court’s
instructions and the evidence proffered at trial, noting that, after mis-speaking, the
prosecutor immediately requested that the jury rely on the testimony adduced at
trial, and we further observed that the district court’s instruction to the jury was
correct. Id. After noting the solitary nature of the remark, the district court’s
instructions, and the evidence proffered at trial, we concluded that the jury could
not have convicted the defendants based on a charge not contained in the
indictment. Id.
Molina did not object to the prosecutor’s statement at the time that it was
made, nor did he ever raise a constructive amendment argument before the district
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court. Accordingly, we review only for plain error. Dennis, 237 F.3d at1299. As
in Castro, the prosecutor in this case made a single remark that, when viewed in
context, did not allow the jury to convict Molina on a charge not contained in the
indictment. Before making his misstatement, the prosecutor urged the jury to look
to the court’s instructions for the proper knowledge requirement. The district
court, in turn, provided correct statements of the knowledge requirements
necessary to convict for conspiracy to launder money, and for the substantive
money laundering counts, when it instructed the jury using verbatim statutory
language. Furthermore, even if the statement was error, such error was not “plain,”
and, moreover, it did not seriously affect the “fairness, integrity, or public
reputation of judicial proceedings,” and we may not exercise our discretion to
correct it. See Cotton, 535 U.S. at 631, 122 S.Ct. at 1786.
Finally, Molina argues that the district court erroneously interpreted the
money laundering Guideline, U.S.S.G. § 2S1.1. According to Molina, the court
erred by finding that the money laundering statute and § 2S1.1 use different
language and that because the relevant “value of funds” laundered actually
constitutes the “proceeds of specified unlawful activity.”
We review the district court’s interpretation and application of the
Sentencing Guidelines de novo. United States v. Zaldivar, 615 F.3d 1346, 1350
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(11th Cir. 2010). Section 2S1.1 provides for a base offense level of eight “plus the
number of offense levels from the table in § 2B1.1 . . . corresponding to the value
of the laundered funds.” U.S.S.G. § 2S1.1(a)(2).
The district court did not error in refusing to limit its interpretation of “the
value of the laundered funds” to the statutory language of “proceeds of specified
unlawful activity,” 18 U.S.C. § 1956(a)(1), because the Guideline covers not only
money laundering under § 1956, but also offenses that violate § 1957, which does
not contain the “proceeds” language. See 18 U.S.C. § 1957(a); U.S.S.G. § 2S1.1
Commentary, Statutory Provisions. Further, we rejected a narrow reading of
“proceeds” as limited to “profits” in Jennings. See Jennings, 599 F.3d at 1252.
For the foregoing reasons, Molina’s convictions and sentences are
AFFIRMED.
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