               Case: 14-14498       Date Filed: 08/30/2016       Page: 1 of 21


                                                                   [DO NOT PUBLISH]


                 IN THE UNITED STATES COURT OF APPEALS

                           FOR THE ELEVENTH CIRCUIT
                             ________________________

                                    No. 14-14498
                              ________________________

                         D.C. Docket Nos. 1:10-cv-21345-PAS,
                                1:99-cr-00583-PAS-1


SALVADOR MAGLUTA,

                                                         Petitioner–Appellant,

versus

UNITED STATES OF AMERICA,

                                                         Respondent–Appellee.

                              ________________________

                     Appeal from the United States District Court
                         for the Southern District of Florida
                           ________________________

                                     (August 30, 2016)

Before WILSON and JULIE CARNES, Circuit Judges, and MOORE, * District
Judge.


PER CURIAM:

*
 Honorable William T. Moore, Jr., United States District Judge for the Southern District of
Georgia, sitting by designation.
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      Salvador Magluta was convicted of one count of conspiracy to commit

money laundering and eight counts of money laundering. After two direct

appeals, he filed a § 2255 motion to vacate, set aside, or correct sentence. The

district court denied each of Magluta’s claims but granted a certificate of

appealability as to four claims, each of which is premised on the Supreme Court’s

decision in Regalado Cuellar v. United States, 553 U.S. 550 (2008). After

reviewing the record and the parties’ briefs, and having had the benefit of oral

argument, we affirm.

                               I. BACKGROUND

      A jury convicted Salvador Magluta of, among other crimes, one count of

conspiracy to commit money laundering in violation of 18 U.S.C. § 1956(h) and

eight counts of money laundering in violation of 18 U.S.C. § 1956(a)(1)(B)(i).

Each of the eight substantive counts corresponded to one of eight checks Magluta

paid to his criminal defense attorneys. The checks were drawn from an Israeli

bank account in the fictitious name of “Leonard Friedman.” The account funds

represented drug proceeds that had been transferred from Miami to New York,

and then from New York to Israel.

      Magluta appealed his convictions and sentence. The Eleventh Circuit

affirmed each of Magluta’s convictions other than his conviction for Count 8

(obstruction of justice through juror bribery), which conviction this Court vacated.
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See United States v. Magluta, 418 F.3d 1166, 1186 (11th Cir. 2005). On remand,

the district court resentenced Magluta on the remaining counts of conviction.

Magluta appealed his new sentence, and we affirmed. See United States v.

Magluta, 313 Fed. App’x 201 (11th Cir. 2008) (per curiam). The Supreme Court

thereafter denied Magluta’s petition for certiorari. See Magluta v. United States,

556 U.S. 1207 (2009).

      Magluta subsequently filed a counseled motion to vacate, set aside, or

correct his sentence under 18 U.S.C. § 2255. His motion contained 46 claims.

The district court denied each claim but granted a certificate of appealability

(“COA”) with respect to four of the claims, each of which turns on the effect of

the Supreme Court’s decision in Regalado Cuellar v. United States, 553 U.S. 550

(2008). Magluta now appeals the district court’s denial of those four claims.

                                II. DISCUSSION

      In reviewing a district court’s denial of a § 2255 motion, “we review legal

conclusions de novo and findings of fact for clear error.” Mamone v. United

States, 559 F.3d 1209, 1210 (11th Cir. 2009) (per curiam).




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       A. Claims Not Identified in the Certificate of Appealability

       Magluta argues that the district court committed various procedural errors.1

However, these procedural issues do not appear in the COA and therefore are not

properly before us. See Murray v. United States, 145 F.3d 1249, 1250–51 (11th

Cir. 1998) (per curiam) (“[A]ppellate review is limited to the issues specified in

the COA.”); Zakrzewski v. McNeil, 573 F.3d 1210, 1211 n.2 (11th Cir. 2009) (per

curiam) (“Petitioner contends that the district court abused its discretion by

finding facts without holding an evidentiary hearing. We doubt an abuse

occurred, but we decline to examine the arguments because they are beyond the

scope of the COA.”).

       B. Claims Identified in the Certificate of Appealability

       Magluta also argues that we should reverse the district court’s denial of the

four claims identified in his COA. Those claims can be summarized as follows:

           Claim 1(a)(2): Counts 2 and 34 through 41 of the indictment
           are constitutionally defective because the indictment fails to
           allege facts that, if established, would show that Magluta knew
           that the payments he made to his attorneys were intended to
           conceal the nature, location, source, ownership, or control of
           the drug proceeds, as required under Cuellar.

           Claim 4: In light of Cuellar, Magluta is actually innocent of
           Counts 2 and 34 through 41 because the payments at issue
           were made for the sole purpose of paying his attorneys, and not

1
  Magluta asserts as procedural errors the district court’s denial of his motion to amend his
§ 2255 motion, its denial of his request for an evidentiary hearing, and its undue deference to
the magistrate judge’s report and recommendation.
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           to conceal the nature, location, source, ownership, or control of
           the drug proceeds used to fund the defense.

           Claim 8: The Government’s theory of the design-to-conceal
           element was improper under Cuellar. The district court did
           nothing to correct this erroneous theory and thereby violated
           Magluta’s Fifth Amendment due process right and Sixth
           Amendment right to a jury trial.

           Claim 18: Trial counsel provided ineffective assistance by
           failing to argue that the Government had not proven that
           Magluta knew that the attorney’s fee payments were intended
           to conceal the relevant attributes of the drug proceeds, as
           required under Cuellar.

       Each of the claims identified in the COA turns on the Supreme Court’s

decision in Cuellar. Accordingly, a review of that decision is in order. At the

outset, we note that Cuellar involved a conviction for transporting funds derived

from an unlawful activity knowing that the transportation was designed at least in

part to conceal or disguise the nature or ownership of the proceeds, in violation of

18 U.S.C. § 1956(a)(2)(B)(i).2 Magluta was convicted of transactional money

laundering, in violation of 18 U.S.C. § 1956(a)(1)(B)(i),3 which prohibits a person


2
   Subsection (a)(2) prohibits the transportation, or attempted transportation, of funds to or
through some place outside the United States knowing that the funds involved in the
transportation represent the proceeds of some form of unlawful activity and “knowing that such
transportation . . . is 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.” 18 U.S.C. § 1956(a)(2)(B)(i). The transactional money laundering prong of the
statute has the identical design-to-conceal element set forth in the transportational money
laundering prong.
3
  The offense of transactional money laundering consists of four elements: “(1) knowingly
conduct[ing] a ‘financial transaction,’ (2) which [the defendant] knew involved funds that were
the proceeds of some form of unlawful activity, (3) where the funds involved in the financial
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from conducting a financial transaction with funds derived from an unlawful

activity knowing that the transaction was designed in part to conceal or disguise

the nature or ownership of the proceeds. The parties vigorously dispute whether

Cuellar’s teachings apply in the transactional money laundering context, as here.

Ultimately, we need not decide this question because assuming arguendo that

Cuellar does apply, Magluta’s claims still fail.

       The question presented in Cuellar was whether evidence that the defendant

had concealed drug money while transporting it from the United States to Mexico

was sufficient to prove the element of the offense requiring that the defendant

know that the transportation was designed to conceal the nature, location, or

ownership of the unlawful proceeds. The evidence showed that the defendant had

been pulled over in Texas about 100 miles from the Mexico border. The police

discovered a hidden compartment in the trunk containing $81,000 in cash,

bundled in plastic bags. Animal hair was spread in the rear of the car, and

although the defendant claimed that he had previously transported goats in the car,

the officer observed that the compartment was too small to accommodate goats.

There was also evidence that the compartment had been recently installed and that


transaction in fact were the proceeds of a ‘specified unlawful activity,’ and (4) that the
defendant engaged in the financial transaction knowing that the transaction was designed in
whole or in part to conceal or disguise the nature, location, source, ownership, or control of the
proceeds of such unlawful activity.” United States v. Tarkoff, 242 F.3d 991, 994 (11th Cir.
2001).


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it was deliberately concealed. Furthermore, the defendant had lied about where he

had been in the days prior to his arrest. Finally, an Immigration and Customs

Enforcement (“ICE”) agent testified that drug-trafficking organizations typically

bring money into Mexico for the purpose of paying the organization’s higher-ups.

      The Government argued that its evidence satisfied the statute’s design-to-

conceal element because “concealment during transportation . . . is circumstantial

evidence that the ultimate purpose of the transportation—i.e., its ‘design’—is to

conceal or disguise a listed attribute of the funds.” Cuellar, 553 U.S. at 562. The

Supreme Court disagreed, holding that “in this context, ‘design’ means purpose or

plan; i.e., the intended aim of the transportation.” Id. at 563. Put differently,

“how one moves . . . money is distinct from why one moves . . . money.” Id. at

566 (emphasis in original). In Cuellar, the defendant moved the money in a

concealed manner, but the Government had introduced no evidence that would

allow the jury to infer that the defendant had moved the money in order to conceal

its nature, location, source, ownership, or control. Id. at 567–68. With this

background in mind, we proceed to address Magluta’s arguments concerning the

district court’s dismissal of his Cuellar-related claims.

          1. Claim 4

      We begin with Claim 4, in which Magluta argues that he is “actually

innocent” of the charges in Count 2 (§ 1956(h) conspiracy count) and Counts 34


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through 41 (§ 1956(h) substantive counts) in light of Cuellar. Essentially,

Magluta argues that Cuellar clarified that secretly transferring drug proceeds is,

on its own, insufficient to prove that the defendant knew that the transaction was

designed to conceal the nature, source, or ownership of the underlying funds.

Magluta contends that the evidence did not show anything other than a transaction

conducted in a concealed manner and, accordingly, he is actually innocent of the

money laundering offenses.

      The district court denied Magluta’s claim because, “even post-Cuellar, the

jury still would have found Magluta guilty under Counts 34–41.” On appeal,

Magluta maintains that there was no intent to conceal any material attribute of the

funds. According to Magluta, the sole purpose of the transactions was to pay his

attorneys using an acceptable form of payment. The Government argues that it is

debatable whether freestanding actual innocence claims are allowable, but even if

they are, Magluta has not met the extraordinarily high threshold necessary to press

such a claim here.

      The Supreme Court has “not resolved whether a prisoner may be entitled to

habeas relief based on a freestanding claim of actual innocence.” McQuiggin v.

Perkins, 133 S. Ct. 1924, 1931 (2013) (citing Herrera v. Collins, 506 U.S. 390,




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404–05 (1993)). 4 On at least one occasion, the Supreme Court assumed, “for the

sake of argument . . . , that in a capital case a truly persuasive demonstration of

‘actual innocence’ made after trial would render the execution of a defendant

unconstitutional, and warrant federal habeas relief if there were no state avenue

open to process such a claim.” Herrera, 506 U.S. at 417 (emphasis added). Even

assuming that a freestanding actual innocence claim is cognizable in the present

non-capital case and even if Cuellar applies to transactional money laundering,

Magluta has not demonstrated his actual innocence.

       At bottom, Cuellar teaches that the Government cannot use the mere fact of

transportation of tainted funds to prove a design to conceal the source, nature, or

owner of those funds. See Cuellar, 553 U.S. at 568 (holding that the design-to-

conceal element “can[not] . . . be satisfied solely by evidence that a defendant

concealed the funds during their transport”). The defendant in Cuellar was a low-

level courier who was caught with $81,000 in cash in the trunk of the car he was

driving toward the Mexico border. According to testimony from an ICE agent,

drug-trafficking organizations’ couriers typically transported cash to Mexico to


4
  Moreover, “[t]he Supreme Court . . . has never decided what the precise burden of proof for a
freestanding actual innocence claim would be.” Mize v. Hall, 532 F.3d 1184, 1195 (11th Cir.
2008). But we know that the standard would be more stringent than the standard that applies
when a § 2255 petitioner argues that he is actually innocent in order to overcome procedural
default. In such cases, the standard is whether the § 2255 petitioner has shown that “‘in light of
all the evidence,’ ‘it is more likely than not that no reasonable juror would have convicted
him.’” Bousley v. United States, 523 U.S. 614, 623 (1998) (quoting Schlup v. Delo, 513 U.S.
298, 327–28 (1995) (internal quotation marks and citation omitted)).
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pay the higher-ups. The Supreme Court held that the evidence did not show that

the defendant knew that the transportation was designed to conceal some material

attribute of the money being transported. Id.

      The facts of this case are materially different from the facts of Cuellar.

Here, the evidence at trial showed that Richard Passapera, one of Magluta’s

associates, delivered $1.2 million in drug proceeds to Antonio Garcia, another

Magluta associate, in Miami. Magluta, 418 F.3d at 1175. Passapera and Magluta

were unaware, however, that Garcia had become an FBI informant. Id. Garcia

delivered the money to FBI agents, who transported it to New York and returned

it to Garcia to complete the transaction. Id. In New York, Garcia turned the

money over to two other Magluta associates, Harry Kozlik and Isaac Benatar. Id.

With the cash in hand, Kozlik boarded a plane to Israel. There, he deposited the

cash into an Israeli bank account under the fictitious name of “Leonard

Friedman.” Id. Kozlik later gave Garcia eight blank checks issued from the

Friedman account. Id. Garcia then transferred the checks to Passapera. Id.

Magluta used those checks to pay his lawyers. Id.

      The district court rightly concluded that, based on these facts, “a jury could

[] assume that how the money was moved had everything to do with why the

money was moved.” The fictitious name on the checks, in addition to the drug

proceeds’ path from Miami to New York to Israel and then back to Miami, would


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permit the jury to infer that Magluta’s intent in paying his attorneys was at least in

part to cover up the fact that the payments derived from Magluta’s drug proceeds;

that is, to conceal the source or owner of the funds.

       Magluta’s argument on appeal bolsters our conclusion that a jury could

infer based on the evidence in this case that the transactions were designed in part

to conceal some material attribute of the underlying funds. Magluta maintains

that the funds had to be transferred from Miami to New York to Israel because

this was the only way for him to pay his lawyers by check, as they had requested.5

But Magluta does not explain why he could not have paid his attorneys using

checks tied to a bank account in the United States or an account in a legitimate

name. Thus, unlike in Cuellar, the facts established at trial in this case permit the

inference that the funds were transferred, at least in part, to conceal the drug

proceeds’ nature, source, or ownership. See Cuellar, 553 U.S. at 569 (Alito, J.,

concurring); United States v. Faulkenberry, 614 F.3d 573, 586 (6th Cir. 2010)

(“[D]epending on context, proof that a transaction was structured to conceal a

listed attribute of the funds can yield an inference that concealment was a purpose

of the transaction.”); United States v. Slagg, 651 F.3d 832, 845 (8th Cir. 2011)

(“[T]he Government must show that concealment is an ‘intended aim’ of the

transaction, whether from direct evidence or circumstantial evidence.” (emphasis

5
  Secondarily, Magluta notes that he wanted the fact that he was paying criminal defense
attorneys to be private.
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added) (quoting Cuellar, 553 U.S. at 564)). In sum, then, even if freestanding

actual innocence claims are cognizable under § 2255, Magluta has fallen short of

establishing his innocence.6

           2. Claim 18

       In Claim 18, Magluta argues that he received ineffective assistance at trial

because his attorney failed to argue to the jury that “Magluta’s purpose in using

checks to pay his attorneys was directly pertinent to the Government’s burden to

establish the designed concealment component of the charged money laundering

offenses.” Essentially, Magluta contends that his attorney failed him by not

making a Cuellar-like argument to the jury. The district court dismissed

Magluta’s Claim 18 because “even if Cuellar is applicable to []

§ 1956(a)(1)(B)(i), the [G]overnment presented enough evidence to sustain the

conviction post-Cuellar.” Accordingly, Magluta cannot show prejudice from his

attorney’s failure to make a Cuellar-based argument.

       Magluta’s ineffective assistance claim “is governed by the Supreme Court’s

two-pronged test announced in Strickland v. Washington, 466 U.S. 668, 104 S. Ct.

2052, 80 L. Ed. 2d 674 (1984).” Puiatti v. Sec’y, Fla. Dep’t of Corr., 732 F.3d

1255, 1278 (11th Cir. 2013). “Under Strickland, to establish constitutionally

6
   To the extent Magluta argues that he is actually innocent based on 18 U.S.C. § 1957 because
the payments at issue here were attorney’s fees, his argument is foreclosed by Circuit precedent.
United States v. Elso, 422 F.3d 1305, 1309–10 (11th Cir. 2005) (noting that § 1957’s special
treatment of attorney’s fees does not carry over to the § 1956 context).
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ineffective counsel, a defendant must show that (1) his attorney’s performance

was deficient, and (2) the deficient performance prejudiced the defense.” Id.

(citing Strickland, 466 U.S. at 687). Magluta’s claim focuses on the failure of his

“trial attorney” to make an argument to the jury at trial. At the time of Magluta’s

trial, however, Cuellar had not yet been decided. So arguably, Magluta’s trial

lawyers were not ineffective by failing to advance a Cuellar-based argument. See

Spaziano v. Singletary, 36 F.3d 1028, 1039 (11th Cir. 1994) (“[R]easonably

effective representation cannot and does not include a requirement to make

arguments based on predictions of how the law may develop.” (internal quotation

marks and citation omitted)).

      We recognize that Magluta’s trial counsel also represented him on direct

appeal, and his final direct appeal was decided three days after Cuellar was

handed down. But even if we assume that Magluta’s attorney had the benefit of

Cuellar, the attorney did not render deficient representation by failing to raise a

Cuellar argument given that any such argument would have been futile in light of

the evidence adduced at trial, as set out above. Thus, Magluta’s lawyer’s

performance did not fall below objectively reasonable standards. See Lindsey v.

Smith, 820 F.2d 1137, 1152 (11th Cir. 1987) (“A habeas petitioner who proposes

[an] alternative trial strategy that would itself have proved futile has failed to

demonstrate that the representation at trial fell below an objective standard of


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reasonableness.”). Moreover, because a Cuellar-based argument would have

failed, Magluta has not carried his burden to show prejudice.

           3. Claim 1(a)(2)

       In Claim 1(a)(2), Magluta asserts that, in light of Cuellar, Counts 2 and 34

through 41 of the indictment “fail to specify facts sufficient to establish . . . a

design to conceal.”7 The district court held that Claim 1(a)(2) was procedurally

barred, but that even if it were not, Claim 1(a)(2) would fail on the merits.

       Under the procedural default rule, a defendant generally must raise an

available challenge to a conviction or sentence either before the district court or

on direct appeal, “or else the defendant is barred from presenting that claim in a

§ 2255 proceeding.” Lynn v. United States, 365 F.3d 1225, 1234 (11th Cir. 2004)

(per curiam). Magluta did not challenge the sufficiency of the indictment’s

allegation of the design-to-conceal element at trial or on direct appeal. In fact, he

raised this issue for the first time in his § 2255 motion. Thus, Claim 1(a)(2) is

procedurally barred unless Magluta demonstrates that one of two exceptions to the

procedural default rule applies: (1) cause and prejudice, or (2) a miscarriage of



7
  Regarding alleged defects in the indictment, the COA is limited to the issue whether the
indictment adequately alleges the design-to-conceal element in light of Cuellar. Thus, this
Court is not empowered to address the following arguments raised in Magluta’s brief: (1) “[t]he
mere writing of checks” does not amount to a financial transaction within the meaning of
§ 1956; (2) the indictment does not state that the checks were written on different occasions, yet
charges each check as a single count; and (3) the indictment does not set forth facts showing the
effect of the transaction on interstate commerce.
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justice, or actual innocence. McKay v. United States, 657 F.3d 1190, 1196 (11th

Cir. 2011).

      Despite the district court’s conclusion in its denial of Magluta’s § 2255

motion that Magluta had procedurally defaulted Claim 1(a)(2), Magluta failed to

address procedural default in his opening brief before us. In his reply brief,

Magluta does suggest that his procedural default should be excused, but “[o]ur

longstanding case law rule is that an appellant who does not raise an issue in his

opening brief may not do so in his reply brief, in a supplemental brief, in a

rehearing petition, or on a remand from the Supreme Court . . . .” United States v.

Durham, 795 F.3d 1329, 1330 (11th Cir. 2015) (en banc) (per curiam).

      In any event, Magluta’s arguments concerning procedural default fail. He

asserts that his claims are not procedurally barred because (1) he is actually

innocent in light of Cuellar and (2) he received ineffective assistance because his

lawyer did not raise a Cuellar-like argument, and therefore he had cause for not

raising a challenge to the indictment at an earlier juncture. We have already

addressed Magluta’s arguments concerning actual innocence and ineffective

assistance, and we concluded that they are losing arguments. Although the

standard for a so-called gateway actual innocence claim is lower than the standard

for a freestanding actual innocence claim, Magluta cannot satisfy even the lower

threshold.


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      To briefly recapitulate, Magluta argues that Cuellar narrowed the scope of

the design-to-conceal element in § 1956(a)(1)(B)(i), and his conduct no longer

satisfies that element of a money laundering offense. But even accepting that

Cuellar narrowed the scope of the design-to-conceal element, and even if Cuellar

applies to transactional money laundering, Magluta would not be able to establish

actual innocence in this case because he cannot show that “‘in light of all the

evidence,’ ‘it is more likely than not that no reasonable juror would have

convicted him.’” Bousley, 523 U.S. at 623 (quoting Schlup, 513 U.S. at 327–28

(internal quotation marks and citation omitted)); see also House v. Bell, 547 U.S.

518, 538 (2006) (“A petitioner’s burden at the gateway stage is to demonstrate

that more likely than not, in light of the new evidence, no reasonable juror would

find him guilty beyond a reasonable doubt.”). This is because, as explained

above, the evidence adduced at trial would allow a jury to convict even after

Cuellar.

      Even if Magluta were able to overcome his procedural default as to Claim

1(a)(2), his argument that his indictment was constitutionally infirm fails on the

merits. “To pass constitutional muster, an indictment must be sufficiently specific

to inform the defendant of the charge against him and to enable him to plead

double jeopardy in any future prosecutions for the same offense.” United States v.

Yonn, 702 F.2d 1341, 1348 (11th Cir. 1983) (citing Hamling v. United States, 418


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U.S. 87, 117 (1974)). “Those requirements are satisfied by an indictment that

tracks the wording of the statute, as long as the language sets forth the essential

elements of the crime.” Id.

      Here, the indictment tracked the language of the statute and also set forth

facts allowing Magluta to ascertain the basis for the charges against him and plead

double jeopardy in future cases for the same offenses. In relevant part, the

indictment provided that Magluta:

          [D]id knowingly conduct, and attempt to conduct, and cause to
          be conducted, financial transactions affecting interstate and
          foreign commerce, that is, the writing of the checks described
          below, on an account at Israel General Bank Ltd., in the name
          of “Leonard Friedman,” payable to the attorneys identified
          below, in the approximate amounts set forth below, such
          checks being subsequently transferred to the attorneys
          identified below, which financial transactions involved the
          proceeds of a specified unlawful activity, that is, the receiving,
          concealing, buying, selling, and otherwise dealing in a
          controlled substance, punishable under the laws of the United
          States, knowing that the transactions were designed in whole
          and in part, to conceal and disguise the nature, location,
          source, ownership and control of the proceeds of said specified
          unlawful activity, and that while conducting and attempting to
          conduct such financial transactions, knew that the property
          involved in the financial transactions as described below,
          represented the proceeds of some form of unlawful activity.

(emphasis added).

      Following this paragraph, the indictment set forth a table detailing the

particular payment that gave rise to each count. For each check/count, the table

listed a payment date, a check number, the amount payed, the attorney involved,
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and the property involved in the transaction. As such, the indictment passed

constitutional muster. See United States v. Sharpe, 438 F.3d 1257, 1264 (11th

Cir. 2006) (holding that the indictment was sufficient because “the counts

contained all of the elements of the offenses charged and informed the defendants

of the charges they faced”).

           4. Claim 8

       In Claim 8, Magluta argues that the Government’s case ran afoul of Cuellar

by suggesting that the design-to-conceal element is satisfied by the mere fact of a

concealed transaction. Magluta contends that the district court did nothing to

correct this erroneous theory, and so the jury’s conviction was in violation of

Magluta’s Fifth Amendment right to due process and Sixth Amendment right to a

jury trial. The district court held that Claim 8 is procedurally defaulted because

Magluta could have raised the claim on direct appeal but did not. Even if the

claim was not procedurally defaulted, the district court held that it failed on the

merits.

       Magluta did not raise his argument concerning the Government’s theory of

prosecution and the district court’s jury instructions during trial or on direct

appeal. 8 Accordingly, Claim 8 is procedurally defaulted because neither default


8
  Magluta did challenge the sufficiency of the evidence supporting his substantive money
laundering convictions in his first direct appeal. But Magluta’s arguments on direct appeal were
different than the argument he now advances. On direct appeal, Magluta first argued that
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exception applies, for the same reasons provided above with respect to Claim

1(a)(2). But even if Magluta had not procedurally defaulted Claim 8, that claim

would not provide a basis for relief. The Government elicited extensive testimony

during trial showing that Magluta and his associates concocted a complicated

scheme to funnel drug proceeds from Florida to New York to Israel to a fictitious

bank account, and then to Magluta’s attorneys. Again, a jury could infer based on

this evidence that Magluta knew that a purpose of the payments was to conceal the

nature, source, or ownership of the funds, and Magluta has not explained why

such a complex scheme was necessary if his only goal was to pay his attorneys by

check rather than cash. Whereas in Cuellar the evidence demonstrated that the

funds were being transported to Mexico to pay higher-ups, here, the money was

transferred in a roundabout way from Miami to Israel, only to come back to

Miami. This, in combination with the fictitious name on the checks, distinguishes



“because the proceeds had been under the control of law enforcement before he used them to
pay his lawyers, the money had lost its ‘tainted’ character and was no longer proceeds of a
specified illegal activity.” Magluta, 418 F.3d at 1175. Second, Magluta argued that “allowing
actual drug proceeds [that] have been in the possession of the government to form the basis for
a conviction . . . would make the money laundering ‘sting’ statute . . . superfluous.” Id. at
1175–76. And third, “by the time he wrote the checks to his lawyers the money had already
been laundered; therefore, he says, his acts amounted to mere spending for his personal benefit,
not laundering.” Id. at 1176. Magluta’s third argument is related to but ultimately different
from the Cuellar argument he now advances concerning the Government’s theory of
prosecution. In short, Magluta’s argument now is not that the money was laundered before he
paid his attorneys but rather that he lacked knowledge of a design to conceal some material
attribute of the funds. But even if Magluta had previously raised the argument he now advances
in Claim 8, thereby avoiding procedural default, Claim 8 would still fail on the merits, as we
explain below.
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the Government’s theory concerning concealment in this case from the theory that

the Supreme Court rejected in Cuellar.

       In attacking the Government’s theory of concealment, Magluta homes in on

the Government’s closing argument. But the unmistakable theme of the

Government’s closing argument was consistent with Cuellar. The prosecutor

twice reminded the jury that Defendant could not be convicted simply for

“[s]pending drug money.” The prosecutor explained that, to the contrary,

Defendant had been charged with “utilizing the proceeds from an unlawful

activity to engage in certain financial transactions that affect interstate or foreign

commerce with the intent to conceal or disguise the location, source, ownership,

[or] nature of the proceeds.” (emphasis added). The prosecutor reiterated that

“[i]t is utilizing these tainted funds in a manner that hides its origins, hides its

nature, its ownership, [or] the control of those funds” that is proscribed by

§ 1956(h)(a)(1)(B)(i). And he went on to catalogue the evidence suggesting that

Magluta and his associates sought to conceal the source and owner of the drug

proceeds. Thus, the prosecutors closing remarks clearly comport with Cuellar’s

strictures.

       Furthermore, the district court’s jury instruction was clear that the design-

to-conceal element required the Government to prove beyond a reasonable doubt

“[t]hat [Magluta] engaged in the financial transaction knowing that the transaction


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was designed in whole or in part to conceal or disguise the nature, location,

source, ownership, or the control of the proceeds of such specified unlawful

activity.” And the instructions stated that “[t]he statute does not make it an

offense merely to conduct financial transactions with the proceeds of narcotics

trafficking. The Government must also show that [Magluta] conducted the

charged transaction with the intent to conceal the nature, location, source,

ownership or control of the proceeds.” Thus, there is no question that the district

court’s instructions were a correct statement of the law, even as set out in Cuellar.

                              III. CONCLUSION

      The district court’s denial of Magluta’s § 2255 motion is AFFIRMED.




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