Opinion
No. 03 Cr. 1493 (RPP).
March 29, 2005
Aranda Guttlien, Jorge Guttlein, New York, NY, Counsel for Defendant.
OPINION AND ORDER
The defendant, Manuel Fernandez-Jimenez ("Fernandez-Jimenez"), moves for a judgment of acquittal pursuant to Rule 29(c) of the Federal Rules of Criminal Procedure. Alternatively, Fernandez-Jimenez moves for a new trial pursuant to Rule 33 of the Federal Rules of Criminal Procedure. For the following reasons, Fernandez-Jimenez's motions are denied.
The facts recounted in this section are construed in the light most favorable to the Government. See United States v. Hamilton, 334 F.3d 170, 179 (2d Cir. 2003).
On November 24, 2004, after a three-day trial, the jury returned a guilty verdict on Count One of the one-count Indictment, charging Manuel Fernandez-Jimenez with conspiracy to commit money laundering, in violation of Title 18, United States Code, Section 1956(a)(1)(B)(i).
On the evening of October 21, 2003, New York City Police Officer Daniel Santiago, Detective Fred Klie, and a third law enforcement official were riding in a marked police car in the vicinity of 23rd Street and 10th Avenue in Manhattan. (Tr. at 25, 34.) Shortly before 10:00 p.m., the law enforcement officials observed a black livery car make a left turn without signaling. (Id. at 26, 35.) They stopped the car and approached its driver, Manuel Fernandez-Jimenez. (Id. at 27, 36.) Detective Klie asked Fernandez-Jimenez where he was coming from, to which Fernandez-Jimenez replied that he was told by an individual he met "up in the eighties someplace" to meet that individual at 25th Street and 10th Avenue. (Id. at 37.) After stating that he did not have any drugs or paraphernalia in the car, Fernandez-Jimenez gave Detective Klie permission to search the car and the trunk. (Id. at 37-38.) Detective Klie searched the interior of the car and then walked around to the trunk, which Fernandez-Jimenez had opened using the trunk-release button. (Id. at 38.) Inside the trunk, Detective Klie saw three bags, which contained a large amount of U.S. currency. (Id.) Officer Santiago also saw the bags and money after Detective Klie motioned him over to the trunk. (Id. at 28.) The officers then placed Fernandez-Jimenez under arrest. (Id.)
Citations to "Tr." refer to the trial transcript.
A total of $889,640 was recovered from Fernandez-Jimenez's car. (Id. at 27; GX 21.) The money was found in two duffel bags and one plastic bag taken from the trunk; each bag was filled with U.S. currency wrapped in brick-like bundles and labeled with green paper tags. (Tr. at 44.) The officials also found three cellular telephones inside the car — a Nextel phone, a Sprint phone, and one other phone — each of which Detective Klie identified at trial. (Id. at 52.)
Citations to "GX" refer to Government exhibits admitted into evidence at trial.
Following his arrest, Fernandez-Jimenez was taken to the Tenth Precinct in Manhattan where Detective Jose Correa advised him of his Miranda rights in Spanish, both orally and in writing (GX 18), and interrogated him about the money seized from his car. (Tr. at 103-08.) At first, Fernandez-Jimenez explained to Detective Correa that a person he did not know gave him directions to deliver the bags "somewhere downtown" to another individual whom he did not know, in exchange for fifty or fifty-five dollars. (Id. at 110.) However, after Detective Correa said that he did not believe someone would put over $800,000 in Fernandez-Jimenez's car without Fernandez-Jimenez knowing that he was transporting money, Fernandez-Jimenez provided a different account of the day's events. (Id. at 111-12.)
Fernandez-Jimenez stated that he received a telephone call on the morning of October 21, 2003 from an individual known as "La Pela," who asked him to stay in the area because his services would be needed later in the day. (Id. at 112, 115.) Later that day, La Pela called Fernandez-Jimenez again and asked Fernandez-Jimenez to meet him at 207th Street and Broadway. (Id. at 115-16.) At the intersection, Fernandez-Jimenez met La Pela and another man whom he did not know. They told him to meet again at 218th Street and Broadway in thirty minutes. (Id. at 116.) When Fernandez-Jimenez arrived at that intersection, the man who was with La Pela at 207th Street and Broadway came out of a nearby building and placed two duffel bags in the trunk of Fernandez-Jimenez's car and a plastic bag on its back seat. (Id. at 117.) Fernandez-Jimenez then began driving southbound while La Pela and the other man observed him from another car. (Id. at 117-19.) During the drive, La Pela and the other man gave him driving directions using the point-to-point or walkie-talkie communication feature of a Nextel cellular telephone that Fernandez-Jimenez said he received from La Pela that day. (Id. at 119.) Specifically, Fernandez-Jimenez stated that La Pela and the other man instructed him to make a number of turns, u-turns, and trips down dead-end streets on his way downtown. (Id. at 119-20.)
According to Fernandez-Jimenez, he had known La Pela since December 2002, and he had driven La Pela and his girlfriend on shopping trips, during which they spent large amounts of money. (Tr. at 113-14.)
Ultimately, Fernandez-Jimenez was told to proceed to the intersection of 23rd Street and 10th Avenue and give the bags to another man at that location. (Id. at 122.) When Fernandez-Jimenez arrived at the intersection, he saw the man described to him standing on the corner. (Id. at 123-24.) Fernandez-Jimenez pulled up alongside the man, got out of the car, opened the trunk, took the plastic bag from the back seat, and told the man at the intersection that the bags belonged to him. (Id. at 124-25.) The man did not take the bags at the corner; instead, he asked Fernandez-Jimenez to drive the bags a couple blocks to the north. (Id. at 125.) Fernandez-Jimenez put the plastic bag in the trunk, got back into the car, and drove north on 10th Avenue. Shortly thereafter, he was stopped by the police car containing Officer Santiago and Detective Klie. (Id. at 125-26.)
Detective Correa testified that Fernandez-Jimenez initially stated that he did not know what was in the three bags. (Id. at 130.) However, later in the interview, Fernandez-Jimenez told Detective Correa that he had "moved bags" for La Pela on two or three prior occasions (id. at 131-32), and that his wife had warned him not to hang around with La Pela and the other individuals that were with La Pela because they were involved in bad things (id. at 129). Fernandez-Jimenez also said that when he took the plastic bag from the back seat he realized there may have been some money in the bags and that the money could have come from gambling or drugs. (Id. at 131.)
Based on an analysis of phone records obtained for the Nextel and the Sprint cell phones, Detective Klie testified that the phones — both of which were registered in other persons' names — had received calls from and made calls to several common telephone numbers (id. at 69-74; GX 26, 27), and that the Nextel phone had been used to call Fernandez-Jimenez's wife as early as September 1, 2003, even though Fernandez-Jimenez stated during his post-arrest interrogation that he received the phone from La Pela earlier on the day of his arrest (Tr. at 57, 59-60; GX 40).
The Government called two witnesses to provide expert testimony. Detective Frank DiGregorio, who was not part of the investigative team in this case, explained in general terms that money is laundered by cocaine traffickers in order to transfer drug proceeds from the United States to South America. (Id. at 165-80.) Detective DiGregorio described the methods commonly used by money launderers to avoid detection during these transfers, including the use of multiple cell phones registered in other persons' names (id. at 170-71), transporting money in vehicles that do not stand out in neighborhoods, such as cars, vans, and livery cabs (id. at 175-76), driving erratically to determine if the transporting vehicle is being followed (id. 176-77), and using a second vehicle to conduct counter-surveillance of the transporting vehicle (id. at 177).
The Government's second expert witness was Inspector Raymond Pardo of the United States Customs Service. Inspector Pardo testified that he is trained to use a device called an "Itemizer" and has used one thousands of times since 1996. (Id. at 184.) Inspector Pardo explained that an Itemizer can detect trace particles of narcotics on a variety of surfaces including U.S. currency. (Id. at 206-07.) He described the components of the Itemizer and explained how the device enables its user to distinguish between the fifty percent of currency currently in circulation that has traces of narcotics embedded in the fibers of the linen paper and currency that has been in an atmosphere where a large amount of narcotics has been present and has not re-entered circulation. (Id. at 207-12.) Inspector Pardo further testified that he analyzed two samples of the money seized from Fernandez-Jimenez's vehicle and concluded that the currency had been exposed to cocaine in an environment that had particulate contamination and had not been in circulation since that exposure. (Id. at 212-22.)
DISCUSSION
I. Fernandez-Jimenez's Rule 29 Motion
Relying exclusively on the Second Circuit's recent decision inUnited States v. Rodriguez, 392 F.3d 539 (2d Cir. 2004), Fernandez-Jimenez argues that an acquittal is warranted pursuant to Rule 29 of the Federal Rules of Criminal Procedure because the evidence presented at trial was insufficient to support his conviction. In particular, Fernandez-Jimenez states that "the evidence does not reflect any specific intent or knowledge that [Fernandez-Jimenez] was a member of a conspiracy to launder funds from illegal proceeds." (Def.'s Mem. at 10.)
Rule 29 permits a defendant to move for a judgment of acquittal after a jury has returned a guilty verdict. Fed.R.Crim.P. 29(c). "A defendant challenging the sufficiency of the evidence supporting a conviction faces a `heavy burden.'" United States v. Glenn, 312 F.3d 58, 63 (2d Cir. 2002) (quoting United States v. Matthews, 20 F.3d 538, 548 (2d Cir. 1994)). The district court must view all of the evidence in the light most favorable to the Government and "[a]ll permissible inferences must be drawn in the government's favor." United States v. Guadagna, 183 F.3d 122, 129 (2d Cir. 1999). The jury's verdict must be upheld if "any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." United States v. Jackson, 335 F.3d 170, 180 (2d Cir. 2003) (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)).
The Indictment charged Fernandez-Jimenez with participating in a conspiracy to launder money in violation of 18 U.S.C. § 1956(a)(1)(B)(i). In order to sustain its burden of proof with respect to the conspiracy allegation, the Government must establish beyond a reasonable doubt that there was an agreement or understanding between two or more persons to violate the law in the manner charged in the Indictment, and that Fernandez-Jimenez joined and participated in the conspiracy knowing its unlawful purpose and to further its unlawful objective.
That statute provides, in pertinent part:
(a)(1) Whoever, 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 —
. . . .
(B) knowing that the transaction is designed in whole or in part —
(i) to conceal or disguise the nature, the location, the source, the ownership, or the control of the proceeds of specified unlawful activity; or
. . . .
shall be sentenced to a fine of not more than $500,000 or twice the value of the property involved in the transaction, whichever is greater, or imprisonment for not more than twenty years, or both.18 U.S.C. § 1956(a)(1)(B)(i).
A. Existence of the Conspiracy Charged in the Indictment
The Government presented sufficient evidence for the jury to conclude that at least two individuals came to a mutual understanding to commit money laundering, as charged in the Indictment. Although Fernandez-Jimenez initially denied knowing any of the individuals he met with in connection with the three bags, he subsequently told Detective Correa that he knew La Pela, who was the individual who contacted him on the day of his arrest, and that he agreed to stay in the area because La Pela was going to need his services later that day. Fernandez-Jimenez also told Detective Correa that, based on his arrangements with La Pela, he drove to the intersection of 218th Street and Broadway and accepted three bags for delivery. In addition, Fernandez-Jimenez stated that he had moved bags for La Pela on two or three previous occasions. Accordingly, Fernandez-Jimenez's statements to Detective Correa provided sufficient evidence for the jury to conclude that a conspiracy or an agreement existed.
Based on the allegations in the Indictment, the Government must prove beyond a reasonable doubt that the object of the conspiracy was to commit the crime of money laundering, in violation of 18 U.S.C. § 1956(a)(1)(B)(i). This crime has four elements: (1) that two or more persons knowingly entered into an agreement to conduct or attempt to conduct a financial transaction that affected interstate or foreign commerce; (2) that those two or more persons agreed to conduct or attempt to conduct the financial transaction with funds or property that involved the proceeds of specified unlawful activity; (3) that those persons entered into the agreement to engage in the transaction knowing that the transaction involved the proceeds of some form of unlawful activity; and (4) that those persons entered into the agreement to engage in the transaction knowing that the transaction was 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.
1. Financial transaction that affected interstate commerce
Detective Correa testified that Fernandez-Jimenez admitted that he drove downtown in order to deliver the bags in the trunk of his livery cab from La Pela and the other man to a third party. Furthermore, the parties stipulated at trial that the bags seized at Fernandez-Jimenez's arrest contained $889,640.00 in U.S. currency and that this currency traveled in and affected interstate commerce. Accordingly, there is no real question as to whether the Government proved that there was an agreement to conduct or attempt to conduct a financial transaction that affected interstate commerce.
2. Proceeds of specified unlawful activity
There is also no real question as to whether the Government proved that the agreement to conduct or attempt to conduct the financial transaction involved funds that were the proceeds of specified unlawful activity. Inspector Pardo testified that his use of the Itemizer showed that both samples taken from the U.S. currency found in the bags seized from the trunk of Fernandez-Jimenez's car had not re-entered circulation since being exposed to particulate contamination from cocaine. This testimony provided sufficient evidence for the jury to conclude that the attempted transaction involved money that was the proceeds of narcotics trafficking, which is a specified unlawful activity under the statute.
3. Knowledge that the transaction involved the proceeds of some form of unlawful activity
The evidence presented at trial was also sufficient for a jury to conclude that Fernandez-Jimenez entered into the agreement to engage in the transaction knowing that it involved the proceeds of some form of unlawful activity. Fernandez-Jimenez's attempts to distance himself from La Pela — such as his conflicting accounts of the events preceding his arrest and his claim that La Pela gave him the Nextel cell phone on the day of his arrest despite evidence that he had possessed the phone for nearly two months — strongly suggest that he was aware that the money in the bags was the proceeds of some form of unlawful activity. In addition, following his arrest, Fernandez-Jimenez stated to Detective Correa that his wife had told him to avoid La Pela because he was involved in bad things, and that he thought the money in the bags could have come from gambling or drugs. Thus, viewing the evidence in the light most favorable to the Government, a rational juror could conclude that Fernandez-Jimenez engaged in the transaction with knowledge that the money in the bags was the proceeds of some form of unlawful activity.
4. Knowledge that the transaction was designed to conceal
There was also sufficient evidence for the jury to conclude that Fernandez-Jimenez knew that the transaction in which he was engaged was 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 some form of unlawful activity. The evidence presented at trial demonstrated that Fernandez-Jimenez's actions were consistent with those of someone transporting money for a money-laundering organization. Fernandez-Jimenez told Detective Correa that he was instructed to drive to two different meeting points before he was given the bags. Fernandez-Jimenez explained that after he received the bags, La Pela and the other man observed him from a second car and gave him instructions through the point-to-point feature of his Nextel cell phone to drive evasively, i.e., to make a number of turns, u-turns, and trips down dead-end streets, as he drove the bags downtown. Based on this evidence, the jury could conclude that Fernandez-Jimenez knew that the transportation of the bags to an unnamed man on the street was designed in whole or in part to conceal the source, ownership, or control of proceeds from some form of unlawful activity.
B. Fernandez-Jimenez's Membership in the Conspiracy Charged in the Indictment
The jury was entitled to conclude that Fernandez-Jimenez joined and participated in the conspiracy charged in the Indictment knowing its unlawful purpose and to further its unlawful objective. The fact that La Pela sought out Fernandez-Jimenez and trusted him to transport bags containing over $800,000 in U.S. currency supports the conclusion that Fernandez-Jimenez was not an innocent participant in the money-laundering scheme. In addition, as discussed above, Fernandez-Jimenez told Detective Correa that, inter alia, he agreed to meet La Pela and deliver bags that La Pela's associate placed in the trunk of his livery cab; he followed instructions from La Pela and La Pela's associate to drive evasively on his way downtown; he had moved bags for La Pela on two or three previous occasions; his wife had warned him that these people were involved in bad things; and he thought the money in the bags could have come from gambling or drugs. Thus, viewing the evidence in the light most favorable to the Government, a rational juror could conclude that Fernandez-Jimenez was a knowing member of a conspiracy to commit money laundering.
II. Fernandez-Jimenez's Rule 33 Motion
Fernandez-Jimenez's Rule 33 motion is based entirely on this Court's decision to allow Detective DiGregorio and Inspector Pardo to testify as expert witnesses at trial. According to Fernandez-Jimenez, "the admission of the expert testimony was error and . . . a new trial should be granted in the `interest of justice.'" (Def.'s Mem. at 11.)
Pursuant to Rule 33 of the Federal Rules of Criminal Procedure, a court may grant a defendant's motion for a new trial "if the interest of justice so requires." Fed.R.Crim.P. 33(a). "[M]otions for a new trial are disfavored in this Circuit,"United States v. Gambino, 59 F.3d 353, 364 (2d Cir. 1995), and the defendant bears the burden of showing that a new trial is warranted.United States v. Sasso, 59 F.3d 341, 350 (2d Cir. 1995). "The ultimate test on a Rule 33 motion is whether letting a guilty verdict stand would be a manifest injustice." United States v. Ferguson, 246 F.3d 129, 134 (2d Cir. 2001) (citation omitted). A court must exercise its authority to grant a new trial where there is "real concern that an innocent person may have been convicted." United States v. Sanchez, 969 F.2d 1409, 1414 (2d Cir. 1992).
Rule 702 of the Federal Rules of Evidence governs a district court's discretion to admit expert testimony. Under Rule 702, an expert witness may testify if his or her "specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue." Fed.R.Evid. 702. A district court has "broad discretion regarding the admission of expert testimony," and its determination will not be set aside unless it was "manifestly erroneous." United States v. Dukagjini, 326 F.3d 45, 52 (2d Cir. 2003).
After learning of the Government's intention to call Detective DiGregorio and Inspector Pardo to testify as expert witnesses at trial, Fernandez-Jimenez wrote to the Court requesting a hearing to determine the admissibility of the proposed expert testimony. (Def.'s Letter to the Court ("Def.'s Ltr."), dated Nov. 15, 2004.) Quoting the Second Circuit's discussion in United States v. Cruz, 363 F.3d 187 (2d Cir. 2004), of the dangers that may arise when a law enforcement official testifies as both a fact and an expert witness, Fernandez-Jimenez argued that the Government's proposed expert testimony was "of dubious value and would be extremely and unfairly prejudicial to the defendant within the context of this case." (Def.'s Ltr. at 3 (citing Fed.R.Evid. 403).)
The Court held a conference on November 18, 2004 to discuss the issues raised by Fernandez-Jimenez's November 15, 2004 letter. With regard to Detective DiGregorio's proposed expert testimony, Fernandez-Jimenez expressed concern that Detective DiGregorio would offer his opinion based on the facts presented by the instant case rather than limiting his testimony to money laundering in general. (11/18/04 Tr. at 5, 7.) In response, the following discussion between the Court and Assistant U.S. Attorney Marc P. Berger ensued:
Citations to "11/18/04 Tr." refer to the transcript of the pre-trial proceedings held on November 18, 2004.
The Court: We are not going to have him give any opinion. He is not going to be allowed to give any opinion about Mr. Fernandez-Jimenez's role in this matter. As I understand it, this witness has had no part in the investigation of Mr. Fernandez-Jimenez.
Mr. Berger: That's correct, Judge.
The Court: And he is not going to be asked a hypothetical about what Mr. Manuel Fernandez-Jimenez's role would be, or even if you had a livery cab driver on Tenth Avenue and 29th Street or Tenth Avenue and 23rd Street, whatever it was, who had five bundles of cash in his cab, what role he would play. I am admitting no hypotheticals.
Mr. Berger: There will not be. The expert will testify to the role that the money couriers play in the money-laundering organization, such as the use of the phones, such as the use of counter-surveillance, and I believe there will be other evidence in this case that will come from other witnesses that will show that those particular characteristics were employed by the defendant, but the expert himself will not testify about what this defendant did.
(11/18/04 Tr. at 7-8.)
Next, Fernandez-Jimenez argued that Inspector Pardo's expert testimony should not be admitted at trial because most money in circulation tests positive for trace amounts of narcotics. (11/18/04 Tr. at 9-10.) The Court declined to preclude Inspector Pardo from testifying, however, noting that the Government indicated that Inspector Pardo would explain how he can distinguish between money with trace amounts of narcotics and money that has been handled recently in the narcotics trade. (Id. at 10-11.)
A. Detective DiGregorio's Testimony
Fernandez-Jimenez argues here that a new trial is warranted because the Court improperly admitted the expert testimony of Detective DiGregorio. According to Fernandez-Jimenez, "Detective DiGregorio's testimony was partially tailored opinion showed [sic] that all of the defendant's actions were consistent with money laundering activities." (Def.'s Mem. at 13.)
At trial, following defense counsel's voir dire and objection to the Government's application to qualify Detective DiGregorio as an expert witness, the Court reiterated its pre-trial ruling and stated that Detective DiGregorio's testimony would be allowed only to explain "how money-laundering operations develop and how they are carried out." (Tr. at 165.) Detective DiGregorio's testimony complied with the limits set forth by the Court and gave no opinion concerning Fernandez-Jimenez's actions. Accordingly, the admission of Detective DiGregorio's testimony does not provide grounds for a new trial pursuant to Rule 33.
B. Inspector Pardo's Testimony
Fernandez-Jimenez also argues that a new trial is appropriate because "Agent [sic] Pardo's testimony was a combination of expert and fact witness in which the basis of the alleged scientific results were questionable at best and his knowledge of the machine and the reliability of the alleged results were nil." (Def.'s Mem. at 14.)
At trial, following his voir dire of Inspector Pardo, defense counsel objected to the Government's application to qualify Inspector Pardo as an expert witness on substantially the same grounds asserted here. The Court nonetheless allowed Inspector Pardo to testify as an expert on the results he obtained using his narcotics-detecting equipment. The cross-examination did not question the results of Inspector Pardo's analysis. Fernandez-Jimenez's restatement of the arguments he made unsuccessfully to the Court during trial is not grounds for relief under Rule 33.
CONCLUSION
For the foregoing reasons, Fernandez-Jimenez's motions pursuant to Rules 29 and 33 of the Federal Rules of Criminal Procedure are denied.
IT IS SO ORDERED.