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No. 14-4441
Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington.
Terrence W. Boyle,
District Judge. (7:12-cr-00088-BO-2)
Argued:
Before GREGORY
Circuit Judge.
and
SHEDD,
Decided:
Circuit
Judges,
and
April 5, 2016
DAVIS,
Senior
jury
convicted
Appellant
Humberto
Rojas-Diaz
of
substantive
distribution.
money
laundering,
and
attempted
drug
He
error,
we
agree
Rojas-Diaz
that
the
evidence
was
case
arises
from
Drug
Enforcement
Administration
Tabares-Castillo (Castillo).
DEA
Special
as
Agent
capacity.
confidential
Carucci,
who
informant,
would
be
working
acting
in
closely
an
with
undercover
Diaz investigation.
of
recreational
vehicle,
with
Castillo
so
it
could
be
Cox $50,000 in cash to pay Castillo for the drugs in the boat.
As planned, Cox and Special Agent Carucci left for Texas
with the Fifth Avenue trailer on October 30, 2010, tailed by a
surveillance team of DEA agents.
house in Texas.
had
observed
several
men
loading
it
with
marijuana
at
On November
The
Cox and Special Agent Carucci hoped to avert any suspicion that
might arise from the anticipated arrests.
Cox and Special Agent Carucci left the boat and remaining
marijuana with an associate of Rojas-Diaz in Lumberton, North
Carolina.
that
the
boat
had
been
delivered.
Law
enforcement
officers
and
Special
marijuana.
and
Agent
Agent
Carucci
had
sold
their
share
of
the
lined
cooler
with
$15,000
of
government
of
Castillo
in
South
Carolina.
Later,
in
January
recovered.
B.
On July 2, 2012, and March 21, 2013, respectively, a grand
jury
in
the
Eastern
District
of
North
Carolina
returned
an
codefendants
with
drug-trafficking-related
offenses.
On
second
superseding
indictment
charged
Rojas-Diaz,
trial,
government
Cox
and
witnesses
investigation.
Special
about
Agent
their
Carucci
testified
involvement
in
as
the
Carolina.
as
Bruce,
testified
that
he
had
been
buying
Carucci
delivered
the
boat
in
North
Carolina.
According
to
at
first,
Rojas-Diaz
had
given
him
Stewart testified
thirteen
pounds
of
Then, over a
Oxendine
knew
Rojas-Diaz
as
Jose.
Stewart
had
Rojas-Diaz fronted
of their association.
the
conclusion
of
the
presentation
of
evidence,
Following an
the
money
laundering
instructions,
the
J.A. 590.
district
court
J.A. 575,
the
district
objects
member
willfully
of
of
as
court
come
instructed
and
go
as
J.A. 587.
that,
long
as
In
[i]n
they
know
it.
an
J.A.
act
585.
[that]
9
The
is
district
committed
court
defined
voluntarily
and
purposely
with
the
forbids.
J.A. 582.
Finally,
as
instructions,
the
specific
to
intent
the
district
to
do
attempted
court
something
drug
initially
the
law
distribution
referenced
five
Rojas-Diaz
objected
to
the
instruction,
and
the
district court correctly named the drug, but not the quantity,
for the jury.
On January 19, 2014, the jury found Rojas-Diaz guilty of
all charges in the second superseding indictment.
jury
announced
the
verdict,
Rojas-Diaz
timely
After the
renewed
his
money
laundering
concurrent
convictions,
sentence
of
240
the
months
10
district
court
imprisonment
II.
A.
We review the denial of a motion for judgment of acquittal
de novo.
2008).
favorable
verdict
to
is
the
government
supported
by
to
determine
substantial
whether
evidence.
the
Id.
guilty
(citing
United States v. Burgos, 94 F.3d 849, 862 (4th Cir. 1996) (en
banc)).
finder
fact
could
accept
as
adequate
and
sufficient
to
in
the
agents.
superseding
ostensible
His
indictment
money
contention
specifically
laundering
has
merit.
charged
scheme
The
were
second
Rojas-Diaz
with
promotion
of
illegal
drug
trafficking
in
violation
of
18
prove
the
charged
conspiracy,
the
government
was
. . .
approximately
$19,010
in
United
States
knowingly
conspiracy.
Cir.
2008)
and
voluntarily
became
part
of
the
added)
(quoting
J.A.
41).
person,
United States
v. Hackley, 662 F.3d 671, 679 (4th Cir. 2011) (citing United
States v. Lewis, 53 F.3d 29, 33 (4th Cir. 1995)).
The record
12
described
above,
the
evidence
elicited
at
trial
informant,
and
Special
Agent
Cox and
But Cox, a
Carucci,
working
undercover for the DEA, were government agents at the time and
could not, as a matter of law, have conspired with Rojas-Diaz to
launder the money (or to commit any other criminal offense).
There is no evidence that any of the men gave any of the money
to another person, government agent or otherwise, who knowingly
participated in the scheme.
The government insists that a conspiracy to launder the
$19,010 existed between Rojas-Diaz and Castillo, who undoubtedly
was involved in the overall narcotics conspiracy and was not a
government agent (although he later pled guilty and testified at
trial
pursuant
to
plea
agreement).
Specifically,
the
supply
Rojas-Diaz
with
marijuana
and
cocaine
through
and
trailers.
In
the
governments
view,
the
$19,010
was
agreement,
United
States
v.
Kellam,
568
F.3d
125, 139 (4th Cir. 2009) (quoting United States v. Ellis, 121
F.3d 908, 922 (4th Cir. 1997)), there must be at least some
evidence
that
the
defendant
participated
in
the
charged
merely
the
conspiracy.
related
but
legally
separate
narcotics
Castillo
trailer
discussed
before
it
arrived
at
or
utilizing
Castillos
the
Fleetwood
house.
Nothing
and
evidence
Castillo
of
in
any
collaborative
respect
14
to
the
efforts
money
between
laundering
conspiracy.
At trial,
calls that he may have had with Rojas-Diaz, both of which were
unhelpful in tying the two men to one another.
as
guy
Negro,
or
Hispanic
no
J.A. 486.
testimony
guy
on
the
was
that
the
Rojas-Diaz.
Id.
Id.
flatly
denied
ever
knowingly
Moreover, Castillo
communicating
with
Rojas-
J.A. 487.
He
asserted that he worked directly with his boss, who was never
15
corroborates
with
that
he
interacted
Rojas-Diaz
and
Castillo
separately.
The government points to portions of Coxs testimony that
suggest Rojas-Diaz and Castillo communicated with each other at
various times.
government
constant
argues
contact
that
Rojas-Diaz
about
their
and
drug
Castillo
trafficking
remained
affairs.
in
The
deals
that
involving
Rojas-Diaz
drugs,
Coxs
supposedly
arrest,
owed
and
money
Castillo.
or
The
in
enterprise,
high-level
and
discussions
certainly
not
about
about
the
the
drug
trafficking
disposition
of
the
simply,
there
Rojas-Diaz
and
is
no
evidence
Castillo
to
of
purchase
tacit
agreement
the
Fleetwood
prosecuted
pursuant
to
18
U.S.C.
1956(h).).
these
reasons,
Rojas-Diazs
conviction
for
money
acquittal
as
to
that
count
indictment.
17
of
the
second
superseding
III.
Rojas-Diaz also challenges his substantive money laundering
conviction, arguing that, in turning over the $19,010 to Cox,
then
He
Rojas-
Diaz specifically argues that the district court (1) did not
properly
instruct
government
agent;
willfulness
instructed
that
(2)
element
the
failed
of
jury
defendant
on
to
cannot
instruct
conspiracy;
concealment
conspire
the
and
money
jury
(3)
with
on
the
improperly
laundering
when
of
laundering
an
amended
judgment
conspiracy
charge,
of
and
acquittal
otherwise
on
the
affirm
money
the
judgment.
AFFIRMED IN PART, REVERSED IN PART,
AND VACATED AND REMANDED WITH INSTRUCTIONS
18
likely
will
not
articulate
my
view
of
laundering
conspiracy.
alter
his
term
the
appropriate
In
my
view,
of
imprisonment,
analysis
the
of
the
sufficiency
to
money
of
the
light
inference
most
favorable
supports
to
finding
the
that
Government,
Castillo
and
reasonable
Rojas-Diaz
were
in
such
conspiracy,
it
would
not
matter
arises
from
the
evidence
presented.
19
Accordingly,