88 F.4th 69
1st Cir.2023Background
- In Aug. 2016 Isaac Cardona bought cocaine from David Cruz and paid a partial cash down payment; after a kilo was stolen, Cruz proposed using cocaine-sale proceeds to buy a kilo of heroin in California for resale in Massachusetts to cover the debt.
- Isaac traveled to California in Cruz's car (with a hidden compartment and cash), met suppliers, then returned early; Cruz later retrieved the car with what proved to be fentanyl, which was seized by law enforcement.
- A superseding indictment charged Rafael Cardona Sr. and Isaac Cardona with two drug conspiracies (cocaine and heroin); Isaac alone was charged with conspiracy to commit promotional money laundering under 18 U.S.C. § 1956(a)(1), (h).
- At trial the jury convicted both Cardonas on the drug conspiracies and convicted Isaac on the money‑laundering conspiracy; both appealed.
- On appeal Rafael raised for the first time a multiplicity (double jeopardy) challenge; Isaac raised for the first time a facial vagueness challenge to § 1956 and also argued sufficiency of the evidence and erroneous jury instruction as to intent.
- The First Circuit affirmed: it declined to consider the untimely Rule 12(b)(3) multiplicity and vagueness arguments, and it upheld Isaac’s money‑laundering conviction on sufficiency and harmless‑error/plain‑error grounds.
Issues
| Issue | Plaintiff's Argument (Gov't) | Defendant's Argument | Held |
|---|---|---|---|
| Whether Rafael Cardona Sr.'s two conspiracy convictions are multiplicitous (Double Jeopardy) | Gov't: Multiplicity claim is untimely and forfeited under Fed. R. Crim. P. 12(b)(3)/(c)(3); no good cause was shown | Cardona Sr.: Claim preserved for plain‑error review; convictions are duplicative | Not reviewable on appeal (untimely Rule 12(b)(3)/(c)(3) claim); no plain‑error review; conviction affirmed |
| Whether § 1956 is unconstitutionally vague (Isaac) | Gov't: Vagueness challenge is a Rule 12(b)(3) objection that must be raised pretrial and is forfeited | Isaac: Facial vagueness claim should be reviewable and merits de novo scrutiny | Not reviewable on appeal (forfeited under Rule 12); court declines to consider the claim |
| Whether evidence was insufficient to prove Isaac intended to "promote" unlawful activity for promotional money laundering | Gov't: Evidence showed Isaac agreed to purchase heroin to resell, using proceeds, which satisfies intent to promote | Isaac: He acted only to repay Cruz (motive), not to promote ongoing heroin trafficking; thus intent element not proven | Evidence sufficient: specific intent to resell supports finding of intent to promote; conviction valid |
| Whether erroneous jury instruction on money‑laundering mens rea warrants reversal (plain error) | Gov't: Error conceded but harmless because jury was properly instructed on heroin conspiracy and found specific intent to distribute | Isaac: Instruction misstated intent element (said knowledge of design "to promote" rather than intent), so his substantial rights were affected | Error was obvious but harmless; no reasonable probability of different outcome; conviction affirmed |
Key Cases Cited
- United States v. Reyes, 24 F.4th 1 (1st Cir.) (Rule 12(b)(3) untimely claims require good cause; no plain‑error review if no good cause)
- United States v. Lindsey, 3 F.4th 32 (1st Cir.) (untimely Rule 12(b)(3) claim precluded on appeal absent good cause)
- United States v. Walker, 665 F.3d 212 (1st Cir. 2011) (policy reasons for pretrial presentation of defective‑indictment claims)
- United States v. Crooker, 688 F.3d 1 (1st Cir. 2012) (timely Rule 12 presentation preserves efficiency and allows government appeal)
- United States v. Santos, 553 U.S. 507 (2008) (money‑laundering merger concerns where predicate offense and laundering overlap)
- United States v. Torres, 53 F.3d 1129 (10th Cir. 1995) (using drug‑sale proceeds to buy more drugs is paradigmatic promotional laundering)
- United States v. Trejo, 610 F.3d 308 (5th Cir. 2010) (equates intentional promotion with intent to further progress of unlawful activity)
- United States v. Adorno‑Molina, 774 F.3d 116 (1st Cir. 2014) (no merger problem where money‑laundering requires a financial transaction beyond drug conspiracy)
- United States v. Pratt, 533 F.3d 34 (1st Cir. 2008) (money‑laundering charge requires proof of a financial transaction not required by drug conspiracy)
- United States v. Cedeño‑Pérez, 579 F.3d 54 (1st Cir. 2009) (statutory mens rea for § 1956 requires intent to promote unlawful activity)