76 F.4th 519
6th Cir.2023Background
- Undercover DEA operation infiltrated a money‑broker scheme run by an unknown "Defendant One" that converted U.S. cash to cryptocurrency and back to cash in Mexico.
- Guerrero, a Chicago car‑dealership employee, acted as a courier in three cash drops in May 2020, each ~$150,000, using bill‑code identity checks; DEA recovered the funds.
- A federal grand jury in Kentucky indicted Defendant One, Guerrero, and several other couriers for conspiracy to commit money laundering.
- Guerrero moved to transfer venue to the Northern District of Illinois; the district court denied the motion and tried Guerrero alone.
- Jury convicted Guerrero of the single conspiracy charged; district court denied Rule 29/33 relief and declined sentencing reductions for acceptance of responsibility and minimal role. Guerrero appealed.
Issues
| Issue | Plaintiff's Argument (Government) | Defendant's Argument (Guerrero) | Held |
|---|---|---|---|
| Fatal variance between indictment (single conspiracy) and proof (multiple conspiracies) | Evidence showed an overarching conspiracy including Guerrero; in any event, any variance was not prejudicial. | Trial proved only a smaller conspiracy between Guerrero and Defendant One; conviction under broader indictment was a prejudicial variance. | No prejudicial variance: even if multiple conspiracies existed, low risk of guilt transference, strong evidence Guerrero conspired with Defendant One, so no reversible error. |
| Venue in Eastern District of Kentucky | Venue proper where any co‑conspirator acted in furtherance; Defendant One placed incoming calls into Kentucky to Agent Stout, establishing venue there. | Guerrero had no acts in Kentucky and did not conspire with co‑defendants whose acts occurred in Kentucky; thus Kentucky venue improper. | Venue proper: adopt rule that conspirator phone calls into a district to a government agent in that district (made in furtherance) establish venue there. |
| Sustaining Government objection to hub‑and‑spoke closing argument | Objection appropriate; any error harmless because jury heard concept, counsel continued, and jury instructions covered multiple conspiracies. | District court wrongly restricted closing argument on hub‑and‑spoke theory, infringing defense; counsel should have argued rim vs rimless hubs. | If error occurred, it was harmless: bench ruling made outside jury presence, defense continued argument, jury instructed, no demonstrated prejudice. |
| Denial of Sentencing reductions (Acceptance of Responsibility and Role Reduction) | Guerrero contested factual elements and thus was not entitled to acceptance reduction; his repeated, aware participation justified denial of minimal‑role reduction. | Guerrero admitted involvement and claimed he only disputed legal scope; he sought downward adjustments for acceptance and minimal role. | Affirmed: denial of acceptance reduction proper because Guerrero contested factual guilt; denial of role reduction not clearly erroneous given repeated trips, knowledge of amounts, identity checks, and comparable culpability to other couriers. |
Key Cases Cited
- Kotteakos v. United States, 328 U.S. 750 (1946) (framework for fatal‑variance/spillover prejudice review)
- Whitfield v. United States, 543 U.S. 209 (2005) (venue proper where an act in furtherance of conspiracy occurred)
- Rommy v. United States, 506 F.3d 108 (2d Cir. 2007) (calls by conspirator to a government actor in a district can establish venue there)
- Gonzalez v. United States, 683 F.3d 1221 (9th Cir. 2012) (adopting call‑into‑district logic for venue)
- United States v. Caver, 470 F.3d 220 (6th Cir. 2006) (prejudice standard for variance review)
- United States v. Williams, 612 F.3d 417 (6th Cir. 2010) (discussion of variance and related standards)
- United States v. Trevino, 7 F.4th 414 (6th Cir. 2021) (§3E1.1 acceptance‑of‑responsibility principles)
- United States v. Iossifov, 45 F.4th 899 (6th Cir. 2022) (venue review standard in conspiracy context)
- United States v. Swafford, 512 F.3d 838 (6th Cir. 2008) (example where variance caused prejudice due to many differing transactions)