UNITED STATES оf America, Plaintiff-Appellee, v. Antonio FARIAS, Defendant-Appellant.
No. 14-15804
United States Court of Appeals, Eleventh Circuit.
Date Filed: 09/01/2016
836 F.3d 1315
Before MARCUS and FAY, Circuit Judges, and FRIEDMAN,* District Judge.
MARCUS, Circuit Judge:
Over the course of about 10 months, Antonio Farias purchased more than 18 million unstamped Marlboro cigarettes from undercover agents of the Bureau of Alcohol, Tobacco, Firearms, and Explosives (“ATF“), at a significantly below-market price, and he arranged to have the cigarettes transported for sale on an Indian reservation in upstate New York. The agents told Farias they had stolen the cigarettes from cargo trucks. Farias was charged and convicted at trial of one count of conspiring, in violation of
I.
In 2005, special agents of the ATF began investigating Farias for unlawfully trafficking in cigarettes in Miami-Dade County, Florida, based on a tip they had received from a confidential informant. On June 20, 2006, a second confidential informant working with the special agents sold Farias more than one million unstamped Marlboro cigarettes.1 After that transaction, ATF placed the investigation on hold for about a year because the second confidential informant was serving a federal prison sentence. Thereafter, on seven separate occasions between June 23, 2008, and April 2, 2009, undercover ATF special agents Peter Alles and Richard Checo, working with the first confidential informant, sold Farias a total of more than 18 million unstamped Marlboro cigarettes. The agents sold Farias the cigarettes at a price per carton of only $19.50—significantly below the going list price, which was between $27 and $36 per carton. Generally, the list price, which includes federal but not state taxes, is the lowest possible price аt which a direct wholesaler can buy Marlboro cigarettes. During the course of each of the seven cigarette transactions, the agents recorded their conversations with the defendant, Farias.
After purchasing the cigarettes from the undercover agents, Farias immediately resold them to Stephen Valvo, who had arranged with his and Farias‘s mutual friend to haul the cigarettes to an Indian reserva
On June 21, 2013, a federal grand jury sitting in the Southern District of Flоrida initially indicted Farias and Valvo on one count of conspiring to traffic in contraband cigarettes, in violation of
Farias moved the district court to dismiss the superseding indictment because it was allegedly untimely under the governing five-year statute of limitations found in
Farias proceeded to trial. On the morning trial commenced, he moved the court
In its case-in-chief, the government played each of the agents’ recorded conversations with Farias for the jury, and also provided clarifying testimony. In the recordings, the undercover agents repeatedly indicated that they were dealing with stolen goods. Thus, for example, Special Agent Checo told Farias prior to the June 23, 2008 transaction that the conspirators’ cigarette supply was unpredictable because they could only get the product “[w]hen it falls” off the back of a truck. Checo explained that this terminology was designed and intended to convey that the undercover agents had stolen the cigarettes from cargo trucks that were transporting the merchandise. Notably, Farias responded: “Of course .... I know how it works.” An employee of Altria Group Distribution Company—Marlboro and Phillip Morris‘s parent company—testified that Phillip Morris maintains a consistent supply of Marlboro cigarettes, so that the product is always available for purchase through legitimate channels.
In another recording, made on October 31, 2008, Special Agent Alles told Farias that he wanted to change trucks and let everything “cool down a bit” before selling the cigarettes. Alles explained that he was speaking in code, telling Farias that “because the product is stolen, I have to move it ... basically to avoid detection by law enforcement.” Farias‘s response was: “Of course.” In fact, Farias then told the undercover agent that he didn‘t want to spend “too much time” at the warehouse, where the sale would take place. Special Agent Alles explained that Farias wanted to minimize his time at the warehouse because he was concerned that customs agents might come to inspect the warehouse and ask to see documentation for the cigarettes. In still another recording, made on November 6, 2008, Farias said he wanted to break up larger transactions into smaller shipments, which would be less likely to attract law-enforcement attention.
Farias had also explained to Special Agent Checo, prior to the July 24, 2008 transaction, that they would have nothing to worry about once the cigarettes made it onto the New York Indian reservation, where state and federal law-enforcement authorities couldn‘t investigate the cigarettes for sale. During that conversation, Farias specifically asked undercover agent Checo to confirm if the cigarettes he was purchasing were stolen. Checo responded, “You don‘t want to know the answer to that.” Farias then said: “Yeah, because I‘m afraid. I mean, so many cases. They‘re after that, you know.”
Valvo, who had entered a plea and agreed to cooperate with the government and to testify against Farias, explained that he knew the cigarettes he bought from Farias had been stolen, and that they were unstamped. At the time, Valvo did not know what price Farias had paid for the cigarettes, but he knew the price Farias was offering him for the contraband was “too cheap” by about $1.50-$1.65 per carton. Valvo added that Farias also told him the cigarettes “[w]eren‘t on board,” which he, too, took to mean that the cigarettes had been stolen.
Farias testified in his own defense. He flatly denied knowing that the cigarettes were stolen and maintained that he was
During the charging conference, defense counsel asked the district court to give a “buyer-seller” instruction, which the court denied.7 The district court noted that “there‘s some authority in the drug area [that] if there‘s an isolated buyer/seller relationship that that can‘t constitute a conspiracy,” but there was also authority indicating the instruction was unnecessary. The court found that the instruction was unnecessary and not supported by the evidence.
The district court, however, used a special verdict form, which asked the jury to find whether Farias was guilty or not of the conspiracy charge, and if guilty, whether the object of the conspiracy was to traffic in stolen goods, or to traffic in contraband cigarettes, or both. The jury found Farias guilty and that he had conspired both to traffic in stolen goods and to traffic in contraband cigarettes.
At the sentencing hearing, the government moved ore tenus for a forfeiture judgment in the amount of $719,538.60, which was a market-value estimate of the cigarettes Farias had purchased from the undercover agents, minus the amounts he had paid the agents. Farias objected, arguing that, pursuant to
Farias timely filed this appeal, challenging both his conviction and the district court‘s forfeiture order.
II.
Generally, we review the district court‘s denial of a motion to dismiss an indictment for abuse of discretion, but the interpretation and application of a statute of limitations is a legal question that we review de novo. United States v. Rojas, 718 F.3d 1317, 1319 (11th Cir. 2013). We also review the sufficiency of the evidence de novo, drawing all reasonable inferences and resolving all questions of credibility in favor of the government. United States v. Hasson, 333 F.3d 1264, 1270 (11th Cir. 2003). Under this standard, we are required to affirm the verdict “if a reasonble juror could conclude that the evidence establishes guilt beyond a reasonable doubt.” Id.
We review the legal correctness of a jury instruction de novo, but defer to the district court on questions of phrasing absent an abuse of discretion. United States v. Prather, 205 F.3d 1265, 1270 (11th Cir. 2000). We also review de novo whether the defense was entitled to a requested jury instruction. See United States v. Calderon, 127 F.3d 1314, 1329 (11th Cir. 1997). Finally, we review the district court‘s legal conclusions regarding forfeiture de novo, but its factual findings only for clear error. United States v. Puche, 350 F.3d 1137, 1153 (11th Cir. 2003).
Farias first argues that the district court erred in denying his motion to dismiss the indictment as being untimely under
The essential question, then, is whether the superseding indictment related back to the original indictment, which was timely. Our case law makes it abundantly clear that the filing of a timely indictment tolls the statute of limitations for purposes of a superseding or new indictment if the subsequent indictment does not “broaden or substantially amend the original charges.” United States v. Italiano, 894 F.2d 1280, 1282 (11th Cir. 1990). Here, the superseding indictment actually narrowed, rather than broadened, the original charges. For starters, the original indictment charged Farias with one conspiracy count and seven substantive offenses, whereas the superseding indictment charged him with only one conspiracy count, having droрped the seven
Farias maintains, nevertheless, that the conspiracy charge in the superseding indictment broadened the original conspiracy because it added as an object of the
Nor did the district court err in denying his due-process challenge. In order to establish that the government‘s delay in bringing the indictment—even if it had been filed in a statutorily timely manner—violated his due process rights, Farias was required to establish both (1) that the delay actually prejudiced his defense, and (2) that it resulted from a deliberate design by the government to gain a tactical advantage over him. United States v. Knight, 562 F.3d 1314, 1325 (11th Cir. 2009). Farias‘s vague allegation, stated at the highest order of abstraction, that the passage of time made it more difficult for him to reconstitute his records for the charged trаnsactions failed to explain how he suffered any actual prejudice. And he made absolutely no showing that the preindictment delay was the product of deliberate design by the government to gain a tactical advantage over him. Contrary to his claim, Farias was not entitled to an evidentiary hearing on his due-process claim because he failed to set forth any specific allegations in support of it. Cf. Blalock v. United States, 844 F.2d 1546, 1551 (11th Cir. 1988) (noting that a defendant must establish a prima facie case of improper disclosure of grand-jury matters to obtain an evidentiary hearing on such a claim); United States v. Silien, 825 F.2d 320, 322 (11th Cir. 1987) (discussing similar standard for evidentiary hearing on selective-prosecution claim).
B.
Farias also argues that the district court erroneously denied his motion to compel discovery of the ATF‘s dealings with Phillip Morris, or in the alternative to dismiss the indictment, purportedly based оn outrageous government misconduct. As we read this record, the district court properly denied these applications as well. In so far as Farias launches a challenge to the lawfulness of the sting operation conducted by special agents of the ATF, the Supreme Court and this Court have recognized the possibility that the nature and extent of the government‘s involvement in a criminal scheme may violate a defendant‘s due process rights, but only where the government‘s conduct “violates ‘fundamental fairness, [and is] shocking to the universal cause of justice.‘” Owen v. Wainwright, 806 F.2d 1519, 1521 (11th Cir. 1986) (quoting United States v. Russell, 411 U.S. 423, 432, 93 S.Ct. 1637, 36 L.Ed.2d 366 (1973)). Employing this standard, we have repeatedly rejected challenges to reverse-sting undercover investigations, whereby undercover officers have occasion to offer and sell contraband to suspected traffickers. See United States v. Sanchez, 138 F.3d 1410, 1413 (11th Cir. 1998) (citing United States v. Savage, 701 F.2d 867, 869-70 (11th Cir. 1983); United States v. Gianni, 678 F.2d 956, 960 (11th Cir. 1982); and United States v. Nicoll, 664 F.2d 1308, 1314-15 (5th Cir. Unit B 1982), rev‘d on other grounds by United States v. Henry, 749 F.2d 203, 206 & n.2 (5th Cir. 1984)).
The Supreme Court has also made it abundantly clear that “[t]he limitations of the Due Process Clause ... come into play only when the Government activity in question violates some protected right of the Defendant.” Hampton v. United States, 425 U.S. 484, 490, 96 S.Ct. 1646, 48 L.Ed.2d 113 (1976). Here, the evidence established that Farias was perfectly willing to repeatedly engage in unlawful cigarette transactions involving huge sums of money, and indeed he raised no entrapment argument at all. His allegations that the sting operation benefited the tobacco companies and harmed the public health
Farias says, however, that the tobacco companies’ involvement in the investigation somehow denied him the right to a disinterested prosecutor. We remain unconvinced. In Young v. U.S. ex rel. Vuitton et Fils, S.A., 481 U.S. 787, 810, 107 S.Ct. 2124, 95 L.Ed.2d 740 (1987), the Supreme Court recognized a criminal defendant‘s right to be tried by a disinterested prosecutor. But we‘ve explained that, while Young forbids an interested party from controlling the defendant‘s prosecution, it does not categorically forbid an interested party from having any involvement in the case. United States v. Siegelman, 786 F.3d 1322, 1329 (11th Cir. 2015), cert. denied, — U.S. —, 136 S.Ct. 798, 193 L.Ed.2d 765 (2016). In his motion to dismiss the indictment, Farias only alleged, and again only in the most general way, that the tobacco companies somehow benefit from ATF‘s efforts to impede or thwart unlawful distribution and sale of contraband cigarettes. The problem Farias has is that this claim in no way shows that the cigarette companies exercised any control over the conduct of the investigation or prosecution. The tobacco companies did not decide whеther to proceed with an undercover investigation, or how or when to do so. Nor did the tobacco companies have any control over what, if anything, would be sold to Farias. Nor, finally, is there even the remotest suggestion that the tobacco companies somehow affected the timing or nature of the prosecution itself.
Farias was not entitled to discovery on his misconduct claim. Plainly, the government is obliged to disgorge evidence or information that would be favorable to the defendant. See Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and its progeny. In his motion to dismiss the indictment, however, Farias has again failed to show how the tobacco companies’ claimed involvement in the sting operation was in any way relevant to establish his innocence or mitigate his punishment. We decline to consider an argument that he raised for the first time in his reply brief that evidencе of some benefit conferred on Phillip Morris would have been relevant to impeach the testimony from a representative of Phillip Morris. See United States v. Evans, 473 F.3d 1115, 1120 (11th Cir. 2006) (“[a]rguments raised for the first time in a reply brief are not properly before a reviewing court” (quotation omitted)).
But, in any event, Farias cannot show that he was prejudiced by the government‘s failure to turn over any claimed information about any alleged benefits conferred on Phillip Morris. The jury learned through Special Agent Alles‘s testimony that Phillip Morris provided the Marlboro cigarettes used in the sting operation and that the government agreed to pay Phillip Morris for the cigarettes with the money it recovered from Farias. Thus defense counsel had the opportunity to—and did—cross-examine the Phillip Morris representative with this information, and the representative testified that he had no knowledge of Phillip Morris‘s cooperation with the ATF.
C.
Farias also challenges the sufficiency of the evidence to establish a conspiracy either to traffic in stolen goods or a conspiracy to traffic in contraband cigarettes. In order to convict him, the government was only required to prove beyond a reasonable doubt that he conspired to do the one or the other. See United States v. McKinley, 995 F.2d 1020, 1025 (11th Cir. 1993) (“[I]t has always been the law that where
The elements necessary to establish a
For starters, Valvo testified that, when Farias sold him the cigarettes, Farias told him they “weren‘t on board,” which Valvo, among others, understood to mean the cigarettes were stolen. Thе evidence also established that the undercover agents told Farias on numerous occasions that the cigarettes they were selling him had been stolen, and Farias affirmed his understanding of this fact in various ways. Again, for example, undercover agent Checo and the confidential informant told Farias that their cigarette supply was unpredictable because they obtained the product “[w]hen it falls“—meaning they stole the cigarettes from cargo trucks—and Farias responded, “I know how it works.” Agent Checo also asked Farias if the confidential informant told him how they had gotten the cigarettes, and Farias responded: “I don‘t want to know.” On still another occasion, Farias specifically asked Checo if the cigarettes were stolen. Checo responded, “You don‘t want to know the answer to that,” which he intended to mean that they were stolen. And, in later transactions, undercover agent Alles told Farias that, before he could buy the cigarettes, they had to “let everything cool down a bit,” which Alles testified was a coded way of telling Farias the cigarettes were stolen.
What‘s more, the agents sold Farias the cigarettes at a substantial price disparity—at a price per carton of $19.50, while the list price per carton during the relevant time period was between $27 and $36—which would have given Farias substantial reason to believe that the undercover agents had not gotten the cigarettes from some legitimate source or channel. Finally, the jury was entitled to discredit Farias‘s testimony that he did not know the cigarettes had been stolen (which it plainly did), and to consider that testimony as substantive evidence of his guilt. See United States v. Jiminez, 564 F.3d 1280, 1285 (11th Cir. 2009).
Farias also contends that the evidence against him was insufficient becаuse the government failed to prove that his knowledge of the stolen nature of the cigarettes was based on an official representation,8 which he maintains was charged in the superseding indictment. In fact, the superseding indictment charged that Farias and Valvo conspired to “knowingly transport, transmit, and transfer in interstate and foreign commerce goods ... having a value of $5,000 or more, knowing the same
A constructive amendment occurs when “the essential elements of the offense contained in the [grand jury] indictment are altered to broaden the possible bases for conviction beyond what is contained in the indictment.” United States v. Augustin, 661 F.3d 1105, 1115-16 (11th Cir. 2011) (quotation omitted). However, “Congress defines the elements of an offense, not the charging document.” Id. at 1116 (quotation omitted). “[A]s long as the crime and the elements of the offense that sustain the conviction are fully and clearly set out in the indictment, the right to a grand jury is not normally violated by the fact that the indictment alleges more crimes or other means of committing the same crime.” Id. (quotation omitted).
The superseding indictment charged Farias with conspiring to violate
Nor did the district court err by denying Farias‘s request for a buyer-seller relationship instruction. We‘ve said that, “[a]s long as there is some basis in the evidence and legal support, the jury should be instructed on a theory of the defense.” United States v. Zlatogur, 271 F.3d 1025, 1030 (11th Cir. 2001). However, “[a] district court‘s refusal to give a requested instruction warrants reversal only if the requested instruction was correct, the charge actually given did not substantially address it, and the failure to give the instruction seriously impaired the defendant‘s ability to present an effective defense.” United States v. Jones, 933 F.2d 1541, 1544 (11th Cir. 1991).
The district court denied Farias‘s request for a buyer-seller instruction based, in part, on defense counsel‘s representation that Farias‘s primary theory of defense was that he was a broker, rather
Farias also challenges the jury‘s finding that he conspired, not just to traffic in stolen goods, but also to traffic in contraband cigarettes. Because we can discern no error in his conviction for conspiring to traffic in stolen goods, and the jury—on a special verdict form—specifically found that object had been proven beyond a reasonable doubt, we need not address whеther any error occurred with regard to the object of trafficking in contraband cigarettes. See McKinley, 995 F.2d at 1025.
D.
Lastly, Farias argues that the district court erred by failing to enter a preliminary forfeiture order after the jury rendered its verdict and before the sentencing hearing. We agree that the district court erred, but conclude after carefully reviewing the record that the error was harmless.
Here, the district court erred by failing to enter a preliminary forfeiture order after the jury rendered its verdict and before the sentencing hearing. See United States v. Marion, 562 F.3d 1330, 1339 (11th Cir. 2009) (“The Federal Rules of Criminal Procedure have the force and effect of law. Just as a statute, the requirements promulgated in these Rules must be obeyed.” (quotation omitted)). Notably, there is nothing in the record, and the government has pointed us to nothing, that would have rendered doing so impractical. See
The record unambiguously establishes that Farias had fair notice prior to the sentencing hearing that the government would seek forfeiture. For one thing, both the original and superseding indictments contained a forfeiture count. See
Upon conviction of a conspiracy to commit a violation of
Title 18, United States Code, Sections 2314 and2342 , as alleged in this Superseding Indictment, the defendant so convicted shall forfeit to the United States of America all of his respective right, title and interest in any property, real or personal, which constitutes or is derived from proceeds traceable to such violation, pursuant toTitle 18, United States Code, Section 981(a)(1)(C) .
Second, the government confirmed its intent to seek forfeiture at trial, when, in response to the court‘s inquiry whether there were any forfeiture issues for the jury, the government noted that it would be seeking a “monetary judgment on the amount of the profit,” which the parties аgreed was not a jury issue. What‘s more, at sentencing, both the government and defense counsel indicated that the parties had actually been negotiating the amount of the forfeiture prior to the sentencing hearing.
Farias also had notice of the specific amount ordered forfeited. At the trial, an ATF financial analyst, John Mark Crawford, testified that Farias‘s bank statements indicated that his profit from the seven charged transactions was approximately $320,000. The government also introduced a profit chart, which the defense did not dispute, showing the analyst‘s calculations. Then, at sentencing, when the government sought a higher forfeiture amount of $719,538.60 based on the market price of the cigarettes, defense counsel argued that, to the extent forfeiture was appropriate, Farias should be required to forfeit only the amount of his personal profit, which was $331,426. The court ultimately agreed with Farias, and entered a forfeiture judgment in the lesser amount, that is for $331,426. We also observe that Farias had a full opportunity to contest the forfeiture at the sentencing hearing. Thus, we cannot see how he was prejudiced in any way by the district court‘s failure to comply with
We are also unpersuaded by Farias‘s alternate claim that the district court erred by denying his request to make his forfeiture liability joint and several with
Nor, as Farias argues, did the government waive its right to seek forfeiture when it decided not to seize the cigarettes involved in the sting operation. The superseding indictment alleged that the proceeds of the offense were forfeitable under the civil forfeiture statute,
Accordingly, we affirm Farias‘s conviction for conspiracy and the district court‘s order that he forfeit $331,426.
AFFIRMED.
Notes
- On or about June 20, 2006, ANTONIO FARIAS purchased approximately 1,500,000 purportedly stolen cigarettes bearing no evidence of payment of applicable state cigarette taxes to the State of Florida, using a cashier‘s check in the amount of $112,500.
- On or about June 23, 2008 STEPHEN VALVO sent, through a company he controlled, a wire transfer to ANTONIO FARIAS in the amount of $42,144.
- On or about June 23, 2008, ANTONIO FARIAS purchased approximately 384,000 purportedly stolen cigarettes bearing no evidence of payment of applicable state cigarette taxes to the State of Florida, using a cashier‘s check in the amount of $37,440.
- On or about July 22, 2008, STEPHEN VALVO sent, through a company he controlled, a wire transfer to ANTONIO FARIAS in the amount of $84,288.
- On or about July 24, 2008, ANTONIO FARIAS purchased approximately 768,000 purportedly stolen cigarettes bearing no evidence of payment of applicable state cigarette taxes to the State of Florida, using a cashier‘s check in the amount of $74,880.
- On or about September 15, 2008, STEPHEN VALVO sent, through a company he controlled, two wire transfers to ANTONIO FARIAS totaling $250,864.
- On or about September 15, 2008, ANTONIO FARIAS purchased approximately 2,304,000 purportedly stolen cigarettes bearing no evidence of payment of applicable state cigarette taxes to the State of Florida, using two cashier‘s checks totaling $224,640.
- On or about September 26, 2008, STEPHEN VALVO sent, through a company he controlled, a wire transfer to ANTONIO FARIAS in the amount of $252,864.
- On or about September 30, 2008, ANTONIO FARIAS purchased approximately 2,304,000 purportedly stolen cigarettes bearing no evidence of payment of applicable state cigarette taxes to the State of Florida, using a cashier‘s check in the amount of $224,640.
- On or about October 24, 2008, STEPHEN VALVO sent, through a company he controlled, two wire transfers to ANTONIO FARIAS totaling $284,472.
- On or about October 27, 2008, ANTONIO FARIAS purchased approximately 2,592,000 purportedly stolen cigarettes bearing no evidence of payment of applicable state cigarette taxes to the State of Florida, using two cashier‘s checks totaling $252,720.
- On or about November 12, 2008, STEPHEN VALVO sent, through a company he controlled, a wire transfer to ANTONIO FARIAS in the amount of $210,720.
- On or about November 13, 2008, STEPHEN VALVO sent, through a company he controlled, a wire transfer to ANTONIO FARIAS in the amount of $168,577.
- On or about November 13, 2008, ANTONIO FARIAS purchased approximately 3,456,000 purportedly stolen cigarettes bearing no evidence of payment of applicable state cigarette taxеs to the State of Florida, using two cashier‘s checks totaling $336,960.
- On or about April 2, 2009, ANTONIO FARIAS purchased approximately 6,852,000 purportedly stolen cigarettes bearing no evidence of payment of applicable state cigarette taxes to the State of Florida, using a wire transfer in the amount of $668,070.
[A] mere buyer-seller relationship does not constitute proof of a conspiracy. A defendant who sells to another person merchandise while believing it to be illegal merchandise does not, merely by selling the merchandise, commit a violation of the federal conspiracy law ....