                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


7-21-2006

USA v. Flores
Precedential or Non-Precedential: Precedential

Docket No. 05-1271




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                                            PRECEDENTIAL

          UNITED STATES COURT OF APPEALS
               FOR THE THIRD CIRCUIT


                         No. 05-1271


              UNITED STATES OF AMERICA

                               v.

                      LUIS A. FLORES,

                                    Appellant


          Appeal from the United States District Court
                  for the District of New Jersey
           (D.C. Criminal Action No. 04-cr-00021-1)
          District Judge: Honorable Ann E. Thompson


                    Argued March 7, 2006

      Before: RENDELL and AMBRO, Circuit Judges,
                SHAPIRO,* District Judge



      *
       Honorable Norma L. Shapiro, Senior District Judge for
the Eastern District of Pennsylvania, sitting by designation.
                (Opinion filed: July 21, 2006)

Mark A. Berman, Esquire (Argued)
Claudia Van Wyk, Esquire
Gibbons, Del Deo, Dolan, Griffinger & Vechione
One Riverfront Plaza
Newark, NJ 07102-5497

      Counsel for Appellant

Christopher J. Christie
  United States Attorney
George S. Leone
  Chief, Appeals Division
Caroline A. Sadlowski (Argued)
  Assistant U.S. Attorney
Office of United States Attorney
970 Broad Street, Room 700
Newark, NJ 07102

Norman J. Gross, Esquire
Office of United States Attorney
Camden Federal Building & Courthouse
401 Market Street
P.O. Box 2098, 4th Floor
Camden, NJ 08101

      Counsel for Appellee



                              2
                OPINION OF THE COURT


AMBRO, Circuit Judge

       Luis Flores was convicted by a jury of one count of
conspiracy to commit money laundering in violation of 18
U.S.C. § 1956, three counts of money laundering in violation of
18 U.S.C. § 1957, and one count of conspiracy to structure
currency transactions in violation of 18 U.S.C. § 371. The
United States District Court for the District of New Jersey
sentenced Flores to a 32-month term of imprisonment. He
timely appeals and, for the reasons provided below, we affirm.1

I.    Factual and Procedural Background

       Flores is an attorney who, after graduating from Fordham
Law School, opened his own solo practice in the Queens
Borough of New York City. In 1998, he was visited in his
office by German Osvaldo Altamirano-Lean (“Altamirano”).
Altamirano presented himself as an Ecuadorian businessman

       1
       This appeal is from the judgment in a criminal case
imposed by the United States District Court for the District of
New Jersey. The District Court had jurisdiction under18 U.S.C.
§ 3231 and we have jurisdiction pursuant to 28 U.S.C. § 1291.


                              3
eager to establish his flower, fruit, and seafood import/export
business in the United States. According to Flores, a
naturalized American citizen and native of Chile, he was
persuaded that Altamirano was who he purported to be. Flores
had recently finished work on a matter for the Republic of
Argentina, and was interested in developing a practice assisting
South American businessmen.

        Over the next several years, Flores opened several
corporations for Altamirano, ultimately naming himself as the
nominal president of those companies. He also established
several business checking accounts for each of the corporations
at different banks, signed myriad blank checks drawn on those
accounts, and authorized numerous wire-transfers from the
accounts to various foreign and domestic recipients. Ultimately,
Altamirano, Flores and others were indicted for conspiracy to
commit money laundering and other offenses. Altamirano
cooperated with the Government and testified at Flores’ trial.
The Government’s theory of the case was that Flores was
“willfully blind” to Altamirano’s unlawful activities. The
defense, on the other hand, argued that Altamirano had
deceived Flores into believing that he was a legitimate
businessman and that Flores was Altamirano’s unknowing
victim and not his co-conspirator.

       The following evidence was presented at trial. Flores
assisted Altamirano in incorporating nine companies between
December 1998 and June 1999, and opening bank accounts on

                               4
behalf of those corporations. In January 1999, Flores attempted
to obtain tax identification numbers for three corporations using
first one and then another social security number provided by
Altamirano, but in each instance Flores was informed that the
numbers were false. He warned Altamirano about the
unlawfulness of using invalid social security numbers, and
offered to take steps to obtain valid numbers. Instead,
Altimirano removed the corporate books from Flores and gave
them to co-conspirator Victoria Hernandez. Altamirano paid
Hernandez $2,000 per week to open corporations and manage
his relationships with the banks. In April 1999, Altamirano
learned that Hernandez had been stealing from him. Altamirano
thus decided to return the books to Flores, who agreed to open
and oversee bank accounts for the corporations in exchange for
the $2,000 weekly salary that Hernandez had received. Flores
was paid the $2,000 each week in cash.

       In early May 1999, Flores arranged for the incorporation
of three new companies and opened an account for each of them
at four banks: Republic National Bank, European American
Bank, Chase Manhattan Bank, and Citibank. As noted
previously, Flores held himself out as the president of these
corporations, and was the only person authorized to sign
checks, transfer money, and act on behalf of the entities. For
each checkbook, Flores signed about 25 to 30 blank checks;
Altamirano retained two or three of these checks to make
transfers from one account to another, and sent the remaining
checks to Columbia. As soon as the accounts were opened,

                               5
multiple cash deposits were made and money began to be wired
in and out of the accounts and between accounts. Individual
deposits were always less than $10,000, but on any given day
the aggregate amount deposited in any account could exceed
$10,000.

       Just weeks after he had opened the new accounts, Flores
received a letter from Republic National Bank (1) explaining
what “structured” transactions are and why they are illegal, and
(2) informing him that “when an account receives a large
incoming wire [transfer of money] and immediately sends an
outgoing wire or wires for approximately the same amount,
without apparent commercial justification, it mirrors the activity
of an account opened by money launderers.” Flores and
Altamirano were asked to attend an in-person meeting at
Republic National Bank in late May 1999, at which they were
expected to supply documentation of the source of the funds in
the bank accounts. When they failed to do so, a bank employee
requested they speak with the bank manager, Thomas Grippa.
In response to Grippa’s questions concerning the number of
accounts and seemingly “structured” cash transactions,
Altamirano stated that he maintained multiple accounts to create
the appearance for his Ecuadorian suppliers that he had many
profitable businesses and to get certain credits from the
government of Ecuador. He also explained that he was paid in
cash by a customer at the Hunts Point produce market and that
he had lost a lot of money after a hurricane delayed his ship and
a large shipment of food spoiled. Grippa testified that he did

                                6
not accept any of these excuses. Ultimately, both Republic
National Bank and European American Bank closed the
accounts. Flores told Altamirano that he felt more comfortable
working with Citibank and Chase, where he had personal
contacts.

       Flores’ accountant, Israel Rivera, who was hired to
perform work for Altamirano in April 1999 due to the
increasing difficulty of balancing Altamirano’s books, testified
that he asked Flores for copies of invoices to document the
source of funds in the accounts. He also reported that he had
voiced concern to Flores about large payments to European
companies that bore no apparent relationship to the
import/export of fruit, flowers, and fish from Ecuador.
According to Rivera, he received neither an explanation nor
copies of invoices in response to his requests.

        Flores remained the sole signor and receiver of the
companies’ multiple account statements for several additional
months, during which approximately $1,288,085 passed
through the companies’ remaining bank accounts. It is
undisputed that the cash was transferred via checks and wire
transfers signed by Flores to recipients in Columbian-operated
brokerage houses on the Black Market Peso Exchange. As a
result of these activities, the Government charged Flores with
conspiracy to launder money, money laundering, and conspiracy
to structure currency transactions. A jury convicted Flores on
all counts. Before the jury was discharged, the parties entered

                               7
into a stipulation limiting the issues presented for the District
Court’s determination at sentencing. Moreover, Flores filed a
motion for acquittal and/or a new trial, which was denied. In
January 2005 the District Court sentenced Flores to a 32-month
term of imprisonment. This appeal followed.

II. Merits

        A. Was the evidence produced by the Government at
trial sufficient to prove that Flores was willfully blind to the
money laundering scheme?

        We review the grant or denial of a motion for judgment
of acquittal de novo, applying the same standard as the District
Court. United States v. Brodie, 403 F.3d 123, 133 (3d Cir.
2005). We must “sustain the verdict if there is substantial
evidence, viewed in the light most favorable to the government,
to uphold the jury’s decision.” United States v. Gambone, 314
F.3d 163, 169-70 (3d Cir. 2003). As we have made clear, a
court “must be ever vigilant in the context of Fed. R. Crim. P.
29 not to usurp the role of the jury by weighing credibility and
assigning weight to the evidence, or by substituting its judgment
for that of the jury.” Brodie, 403 F.3d at 133; see also United
States v. Jannotti, 673 F.2d 578, 581 (3d Cir. 1982) (en banc)
(trial court usurped jury function by deciding contested issues
of fact).

       Flores argues that the Government failed to prove

                               8
beyond a reasonable doubt that he knew or was willfully blind
to the fact that the money laundered by Altamirano either
“represent[ed] the proceeds of some form of illegal activity,” 18
U.S.C. § 1956(a)(1), or was “criminally derived property,” 18
U.S.C. § 1957(a). According to Flores, “[t]he only form of
unlawful activity identified at trial was drug trafficking. Yet the
evidence the Government presented was wholly insufficient to
establish [his] knowledge of, or willful blindness to, the fact
that the funds originated in drug trafficking or any other crime.”

      To prove conspiracy to commit money laundering, the
Government was required to show, inter alia, that Flores
consorted with others in a money laundering scheme,

       knowing that the property involved in a financial
       transaction represent[ed] the proceeds of some
       form of unlawful activity [and] conduct[ed] or
       attempt[ed] to conduct such a financial
       transaction which in fact involves the proceeds of
       specified unlawful activity.

18 U.S.C. § 1956(a)(1). It is undisputed that the financial
transactions Flores conducted on behalf of Altamirano “in fact
involve[d] the proceeds of specified unlawful activity,” to wit,
narcotics trafficking. Thus, the only question is whether the
Government produced evidence that Flores knew of or was
willfully blind to the fact that the funds originated in some form
of unlawful activity, sufficient to obtain a conviction under §

                                9
1956(h). See 18 U.S.C. § 1956(c)(1) (stating that it is sufficient
if “the person knew the property involved in the transaction
represented proceeds from some form, though not necessarily
which form, of activity that constitutes a felony under State,
Federal, or foreign law”) (emphasis added). Accordingly, the
defense’s argument that the Government needed to prove that
Flores knew of, or was willfully blind to, the fact that the funds
originated in drug trafficking is off point.

       To prove money laundering, the Government was
required to show that Flores,

       knowingly engage[d] or attempt[ed] to engage in
       a monetary transaction in criminally derived
       property of a value greater than $10,000 and is
       derived from specified unlawful activity.

18 U.S.C. § 1957(a). Again, because the monetary transactions
that Flores conducted on behalf of Altamirano were “derived
from specified unlawful activity,” the only question is whether
the Government produced sufficient evidence that Flores knew
that the monetary transactions represented the proceeds of
criminally derived property. For the same reasons provided
above, the defense’s argument—that the Government needed to
prove that Flores knew of, or was willfully blind to, the fact that
the funds originated in drug trafficking to obtain a money
laundering conviction—fails. See 18 U.S.C. § 1957(c) (“[T]he
Government is not required to prove that the defendant knew

                                10
that the offense from which the criminally derived property was
derived was specified unlawful activity.”).

        Our remaining task is to determine whether there is
substantial evidence in the record, viewed in the light most
favorable to the Government, that Flores knew that the property
involved in the financial transactions represented the proceeds
of some form of unlawful activity and/or criminally derived
property. Knowledge may be demonstrated by showing that a
defendant either had actual knowledge or “deliberately closed
his eyes to what otherwise would have been obvious to him
concerning the fact in question.” United States v. Stewart, 185
F.3d 112, 126 (3d Cir. 1999). The Government establishes
willful blindness by proving that a defendant “was objectively
aware of the high probability of the fact in question,” Brodie,
403 F.3d at 148 (citation omitted), and “could have recognized
the likelihood of [illicit acts] yet deliberately avoided learning
the true facts.” Stewart, 185 F.3d at 126.

       Here, the jury reasonably concluded that Flores
participated in the money laundering conspiracy either
knowingly or with willful blindness. The following record
evidence, inter alia, created in Flores objective awareness of the
high probability that Altamirano was involved in money
laundering: (1) one of Flores’ initial interactions with
Altamirano involved the supply of two false social security
numbers; (2) as soon as Flores opened multiple bank accounts
for the corporations, large amounts of cash began flowing in

                               11
and out of the accounts, despite the fact that the corporations
had just opened for business and had no physical location other
than Flores’ own offices; (3) Flores received a letter from the
Republic National Bank explaining what “structured”
transactions are and why they are illegal, and informing him that
“when an account receives a large incoming wire and
immediately sends an outgoing wire or wires for approximately
the same amount, without apparent commercial justification, it
mirrors the activity of an account opened by money launderers”;
(4) the manager of Republic National Bank disbelieved
Altamirano’s explanation concerning his numerous accounts
and financial transactions and told Altamirano and Flores that
the accounts were “evidently” being used for “money
laundering”; (5) Flores’ accountant, Rivera, testified that he had
sought invoices documenting the source of the funds but never
received the documentation he requested; and (6) Rivera also
questioned Flores about why the funds were being sent to
foreign companies with no apparent relationship to the
Ecuadorian fruit, fish or flower trade.

       In response to the substantial evidence that Altamirano
was involved in some sort of illegal activity, Flores willfully
blinded himself to the truth. He never requested any proof of
the legitimacy of the transactions from Altamirano or even any
further explanation addressing either the bank manager’s or
accountant’s concerns. That Flores “did not ask the natural
follow-up question[s] to determine the source of those funds
could reasonably be considered by a jury to be evidence of

                               12
willful blindness.” United States v. Wert-Ruiz, 228 F.3d 250,
257 (3d Cir. 2000). Indeed, when faced with the above-detailed
evidence, instead of making obvious inquiries, Flores engaged
in additional money laundering transactions. For example, he
continued to sign checks and wire transfers and to receive
account statements documenting the flow of over $1,200,000
through the accounts. Moreover, Flores dissuaded Altamirano
from discontinuing suspicious financial transactions after the
meeting with Republic National, and instead opened accounts
at other banks, stating that he needed the $2,000 per week he
was being paid in cash to oversee the bank accounts. Thus, the
jury could have inferred that Flores was motivated to avoid
learning the truth because the money laundering operation was
profitable to him. See Brodie, 403 F.3d at 158.

        In sum, the jury’s verdict reflects that it reasonably
concluded, based on the evidence before it, that Flores was
willfully blind to the illegal source and disposition of the funds
in the accounts of the corporations he formed. “This is not to
say that [Flores] did not proffer alternative explanations, but the
verdict indicates that the jury did not credit them. Because
[substantial] evidence supports that verdict, we [should] not
second guess that decision.” Wert-Ruiz, 228 F.3d at 258.

       B. Did the District Court properly instruct the jury on
the law of willful blindness?

       We generally exercise plenary review in determinating

                                13
“whether the jury instructions stated the proper legal standard,”
and review the refusal to give a particular instruction or the
wording of instructions for abuse of discretion. United States v.
Khorozian, 333 F.3d 498, 507-08 (3d Cir. 2001) (internal
quotation omitted). Here, however, Flores failed to raise his
objection to the willful blindness instruction at trial. As a
result, his claim can be reviewed only for plain error. See Fed.
R. Crim. P. 30 (providing that “[n]o party may assign as error
any portion of the charge or omission therefrom unless he
objects thereto before the jury retires to consider its verdict,
stating distinctly the matter to which he objects and the grounds
of his objection”); Gov’t of the Virgin Islands v. Knight, 989
F.2d 619, 631 (3d Cir. 1993) (without a “clearly articulated
objection,” “a trial judge is not appraised sufficiently of the
contested issue and the need to cure a potential error to avoid a
new trial”).

        Under the plain error standard, before an appellate court
can correct an error not raised at trial, it must find: (1) an error;
(2) that is plain; and (3) that affected substantial rights. United
States v. Olano, 507 U.S. 725, 733-35 (1993); United States v.
Davis, 407 F.3d 162, 164 (3d Cir. 2005) (en banc); United
States v. Syme, 276 F.3d 131, 143 n.4 (3d Cir. 2002). If all
three conditions are met, we may in our discretion grant relief,
but only if “‘the error seriously affects the fairness, integrity, or
public reputation of [the] judicial proceedings.’” United States
v. Haywood, 363 F.3d 200, 206-07 (3d Cir. 2004) (quoting
Johnson v. United States, 520 U.S. 461, 467 (1997)).

                                 14
        Flores argues that the District Court’s willful blindness
instruction erroneously (1) failed to require a jury finding that
he was willfully blind to the specific money laundering and
structuring activity charged in the indictment, as opposed to
some other uncharged or unspecified “illegal activity” (or
“something amiss”), and (2) shifted the burden to him of
proving that he “actually believed” that Altamirano was not
engaged in any money laundering or structuring activity when,
as a matter of due process, it was the Government’s burden to
disprove that contingency beyond a reasonable doubt. In
response, the Government submits that the language stating that
Flores needed to know that “illegal activity was going on,” or
that “something was amiss,” is standard language of a willful
blindness charge and, in any event, “there was no other illegal
activity in which Flores was accused of participating” besides
money laundering and structuring currency transactions. The
Government further maintains that the fact that the District
Court substituted “if the defendant shows” for “if the evidence
shows” in its oral charge did not affect the jury’s deliberations
because the written jury instruction, read by the jurors and used
by them in their deliberations, includes the correct language and
the instruction made clear, both in general and with respect to
willful blindness, that the Government bore the burden of proof.

       The Government’s arguments are persuasive. “Jury
instructions must be read as a whole,” and the jury in this case
was specifically charged to do just that. E.E.O.C. v. Del. Dept.
of Health and Soc. Servs., 865 F.2d 1408, 1418 (3d Cir. 1989).

                               15
It is uncontested that the jury was properly charged as to all of
the essential elements of the money laundering and currency
structuring counts. Those counts required the jury to find
beyond a reasonable doubt the elements that the defendant
“knowingly” committed or conspired to commit money
laundering and currency structuring. Moreover, the District
Court repeatedly and expressly referred to money laundering
and money structuring within the willful blindness instruction.
Considered with the totality of the relevant instructions, the
Court’s instruction only permitted a finding of Flores’ guilty
knowledge if that finding was based on his willful blindness
that he was engaged in money laundering and structuring, and
not some other illegal activity. The instruction also makes clear
that the only purpose of applying willful blindness to a fact is if
the Government had a “burden of proving the element of
knowledge of that fact.”2

       2
        The Court of Appeals for the Eleventh Circuit rejected
a similar claim to the one presented here, also raised in the
context of a prosecution for money laundering based on a
violation of 18 U.S.C. § 1956. The Court there explained that,
given the instructions as a whole, particularly the court’s
instructions on the elements of the crime, the fact that the court
did not define the “specified unlawful activity” in the willful
blindness instruction did not constitute plain error. United
States v. Starke, 62 F.3d 1374, 1381 (11th Cir. 1995). The
same reasoning applies here, given the District Court’s overall
instruction and its specific instruction on the elements of the
offense.

                                16
       As indicated at the beginning of this section, Flores
further contends that the District Court’s instruction on willful
blindness impermissibly shifted the burden to him of
“show[ing]” that he “actually believed” that Altamirano was not
engaged (or that Flores “positively did not know” he was
involving himself) in money laundering or structuring activity.
Although the District Court properly stated the burden of proof
in its written jury instruction, it orally charged the jury as
follows:

       If the defendant shows you that he actually
       believed that money laundering was not taking
       place, he cannot be convicted. . . . However, a
       defendant’s knowledge of a fact may be inferred
       from willful blindness to the existence of facts
       which indicate that there is a high probability that
       illegal activity is going on.

                              ***

       To repeat, again, if the evidence shows that he
       positively did not know he was involving himself
       in money laundering or money structuring, then,
       of course, he must be acquitted. . . . But, if the
       evidence shows that there was a high probability
       that he knew something was amiss and that he




                               17
       failed to take steps to investigate, to find out
       whether that was true or not, then you may find
       that he had the guilty knowledge which must be
       shown for the conviction of the offense of money
       laundering or structuring currency transactions.

(Emphasis added.)

       On the one hand, Flores is correct that, contrary to the
District Court’s instruction, he was not required to demonstrate,
in order to avoid conviction, that he “actually believed” that
money laundering and structuring were not taking place.
Rather, it was the Government alone that was required to
disprove that fact beyond a reasonable doubt. See United States
v. Simon, 995 F.2d 1236, 1243 (3d Cir. 1993) (reversing
conviction where District Court’s instruction on alibi may have
shifted burden to defendant, who “need only raise a reasonable
doubt in the jurors’ minds as to whether he was present at the
scene of the charged offense at the time the offense was
committed”). On the other hand, given that the correct burden
of proof was articulated by the District Court in its written jury
instructions to which the jurors referred during deliberations, it
is apparent that the substitution of “defendant” for “evidence”
was merely a one-word slip of the tongue on the part of the
District Judge in her oral charge. In any event, this is where
defense counsel’s failure to object contemporaneously becomes
significant–as the mistake could have been resolved
immediately. Indeed, counsel’s failure to object leaves us with

                               18
the impression that the misstatement in the oral charge was
hardly noticeable.

       Moreover, as the Government points out, the District
Court gave general instructions regarding the Government’s
burden of proof, specific detailed instructions regarding the
Government’s burden of proof with respect to each element of
the crime, and specific references to the Government’s burden
of proof in the willful blindness charge itself. The Court
generally instructed the jury:

       The burden is always upon the prosecution to
       prove guilt beyond a reasonable doubt. This
       burden never shifts to a defendant; for the law
       never imposes upon a defendant in a criminal
       case the burden or duty of calling any witnesses
       or testifying himself or producing any evidence.

(Emphasis added.) The Court’s charge on the defendant’s
knowledge indicated: “The Government must prove beyond a
reasonable doubt that the defendant acted knowingly and
willfully with respect to each and every count in the
indictment.” Further, in reciting the elements of the crime, the
Court again indicated that the Government alone bears the
burden of proof. Finally, in the willful blindness charge,
immediately prior to its oral misstatement the District Court
indicated that the Government bears the burden of proof with
respect to Flores’ knowledge:

                              19
       So with respect to the issue of the defendant’s
       knowledge, if you find, beyond a reasonable
       doubt, from all the evidence in the case, that the
       defendant was subjectively aware of a high
       probability of the existence of a fact and
       deliberately tried to avoid learning whether the
       fact was true, you may find that the Government
       has satisfied its burden of proving the element of
       knowledge of that fact.

At the risk of “piling on,” the Court’s willful blindness charge
included repeated references that the jury could not find
knowledge based on a willful blindness theory unless there was
“proof beyond a reasonable doubt” that Flores “was personally
aware of a high probability of the existence of a particular fact,
and then deliberately failed to take action to determine whether
or not the fact existed.”

       All of this was more than sufficient to dispel any possible
misconception that Flores bore a burden to prove that he was
not willfully blind. See United States v. Lee, 991 F.2d 343,
349-50 (6th Cir. 1993) (willful blindness instruction did not
improperly shift the burden of proof to the defendant, even
though it did not instruct that the Government had the burden
to prove beyond a reasonable doubt the factual predicates for
willful blindness); United States v. Cincotta, 689 F.2d 238,
243-44 (1st Cir. 1982) (no plain error regarding the district
court’s willful blindness instruction that appeared to shift the

                               20
burden of proof to a defendant, given the totality of court’s
instructions); United States v. Ciampaglia, 628 F.2d 632, 642
(1st Cir. 1980) (willful blindness instruction, read in totality,
would not have been construed by a reasonable juror to impose
a burden on defendants to disprove criminal knowledge).3

       Because the instructions imposed the burden of proof on
the Government generally, emphasized that the Government
bore the burden of proving guilty knowledge, and repeatedly
imposed the burden of proving willful blindness on the
Government, Flores has failed to demonstrate that the District
Court’s willful blindness instruction amounted to plain error.

      C. Was the District Court’s non-testifying defendant
charge legally sufficient?

        At trial, Flores exercised his right under the Fifth
Amendment to remain silent by choosing not to testify in his
own defense. As a result, the defense asked the Court to charge
the jury that “[a] defendant in a criminal case . . . has an
absolute right under our Constitution not to testify,” that “the
fact that the defendant did not testify must not be discussed by
you, or considered by you, in any way when deliberating and in


       3
       Moreover, the portion of the instruction that Flores now
challenges did not affirmatively require him to make a showing,
but only indicated that if he did make a showing, he could not
be found guilty.

                               21
arriving at your verdict,” and that “to consider the fact that the
defendant did not testify against the defendant would be a
violation of your oath as a juror, and of the defendant’s
constitutional rights.” The District Court’s non-testifying
defendant instruction provided:

       The law does not require a defendant in a
       criminal action to take the witness stand and
       testify. No inferences of guilt may be drawn from
       the decision of a defendant not to testify. This is
       his constitutional right. Furthermore, the law
       never places upon a defendant in a criminal case
       the burden or duty of calling any witnesses or
       producing any evidence.

        Flores argues that this instruction fails to explain to the
jury the full significance of his Fifth Amendment privilege and
failed to clarify the constitutional prohibition against
consideration of his silence for any purpose. We disagree. This
instruction spells out for the jury not only that Flores has a
privilege against self incrimination, but that the jury may draw
no inference from his decision not to testify. Portuondo v.
Agard, 529 U.S. 61, 67 (2000); Griffin v. California, 380 U.S.
609, 615 (1965) (holding that a criminal defendant must not pay
any court-imposed price for the exercise of his right not to
testify in his own defense). The instruction further reiterates
that the defendant does not bear the burden of producing
evidence and calling witnesses. Therefore, it more than fulfills

                                22
the requirement that, upon request of a defendant, a court
should instruct the jury that no adverse inferences may be drawn
from his decision not to testify. Because the District Court’s
statement of the law is effective, its choice of wording was not
an abuse of discretion.

      D. Did the District Court properly charge the jury
regarding the theory of Flores’ defense?

       Flores argues that the District Court erred in failing to
charge the jury regarding the theory of his defense. That theory
was that Flores had been deceived by Altamirano and thus he
was not willfully blind to Altamirano’s unlawful activities.
Consequently, Flores specifically asked the District Court to
charge the jury regarding the theory of the defense by
explaining to the jury that

       [a]n act is done “knowingly” if done voluntarily
       and intentionally, and not because of deception,
       mistake or accident or some other innocent
       reason. The purpose of adding the word
       “knowingly” is to ensure that no one will be
       convicted for an act done because he was
       deceived, or by mistake or accident, or because of
       some other innocent reason.

The District Court did not include the emphasized language in
its charge to the jury. Instead, the District Court instructed:

                              23
       An act is done knowingly, if done voluntarily and
       intentionally, and not because of mistake or
       accident, or other innocent reason. The purpose
       of adding the word knowingly . . . is to insure that
       no one will be convicted for an act done because
       of mistake, accident, or other innocent reasons.

In the motion for acquittal hearing, the District Court explained
its decision to omit the word “deception” from the charge
regarding Flores’ knowledge, stating:

       I appreciate [the defense’s] desire to have
       deception as one of the strings of circumstances
       which could be an innocent encounter with
       criminal culpability. But, deception is not as
       clear a term as the language that I did use.
       Deception is a slight nuance because initially Mr.
       Flores was deceived, I dare say initially there’s no
       question when he met Altamirano he thought
       Altamirano was a legitimate businessman. At
       least that was the evidence. But somewhere
       along the way the jury was convinced, and the
       Government argued he acquiesced and joined Mr.
       Altamarino’s venture, criminal venture.

              So the fact that he may have been deceived
       at one point does not dispose of the fact finding
       that the jury had to do. I thought that the

                               24
       language I used was clearer and more specific.
       But certainly the jury had the opportunity
       listening to the very eloquent and thorough
       arguments of counsel in summation. They knew
       what the defense theory was. It was not a very
       difficult theory. It was quite simple as [defense
       counsel] explained it. It was that Mr. Flores
       didn’t know, did not know what Mr. Altamirano
       was up to. That he was duped.

             The jury rejected that perspective. But it
       was certainly clear as day what the defense theory
       was.

        It is well-settled that the trial judge retains discretion to
determine the language of the jury charge. See United States v.
Goldblatt, 813 F.2d 619, 623 (3d Cir. 1987) (“It is within the
sound discretion of the trial judge to determine the particular
language to be employed when charging the jury.”). So long as
the court conveys the required meaning, the particular words
used are irrelevant. United States v. Bailey, 451 F.2d 181,
183-84 (3d Cir. 1971) (per curiam). “The district court is not
obligated to use the language the defendant proffers.” United
States v. Kapp, 781 F.2d 1008, 1013 (3d Cir. 1986) (declining
to include in the instruction on knowledge that “suspicion does
not amount to knowledge”).

       Moreover, the District Court’s choice of language is

                                 25
entirely unlike those cases cited by Flores, in which the trial
court failed to instruct a jury at all with respect to a defendant’s
theory of defense—such as justification, United States v.
Paolello, 951 F.2d 537, 543-544 (3d Cir. 1991); entrapment,
Mathews v. United States, 485 U.S. 58, 63 (1988); good faith
when bad faith is an element of the offense, United States v.
Murdock, 290 U.S. 389, 396 (1933), overruled on other
grounds by Murphy v. Waterfront Comm’n, 378 U.S. 52
(1964)); or intoxication as inhibiting intent, United States v.
Davis, 183 F.3d 231, 254-55 (3d Cir. 1999). Likewise, this is
not a case in which the jury would otherwise not recognize the
significance of the evidence of Flores’ lack of knowledge.

        On point here is our decision in United States v. Kapp,
which addresses a challenge to a jury instruction much like
Flores’ challenge. There, a defendant sought a gloss on the
District Court’s standard knowledge instruction that would
address his contention that he suspected, but did not know, that
he was involved in a conspiracy. 781 F.2d at 1013.
Specifically, he sought inclusion of the phrase “suspicion does
not amount to knowledge.” Id. We held that, in refusing the
additional language, the District Court did not abuse its
discretion. Id. By giving the general instruction on knowledge
three times, the Court satisfied the requirement that it charge the
jury on the defendant’s theory of his defense; it was not
required to employ the specific language sought by the
defendant. Id. Likewise, in our case the District Court clearly
instructed the jury multiple times on what would and would not

                                26
constitute knowledge on the part of Flores. It was not required
to employ the synonym selected by Flores to describe his state
of mind, but only to state the law effectively, as it did.

      E. Did the District Court commit error in sentencing
Flores?

        At sentencing, the District Court determined that Flores’
applicable Guidelines provision for the offenses of conviction
was U.S.S.G. § 2S1.1, and thus Flores’ base offense level was
20. The parties stipulated that the value of the laundered funds
attributable to Flores for sentencing purposes was $1,288,085,
resulting in a five-level increase pursuant to § 2S1.1(b)(2)(F).
In addition, the Court applied a two-level upward adjustment
pursuant to § 3B1.3 because Flores used a special skill or
abused his position of public and private trust as an attorney.
Moreover, the Court declined to grant a two-level downward
adjustment for minor role pursuant to § 3B1.2. A total offense
level of 27, combined with Flores’ category I criminal history,
resulted in an advisory Guidelines range of 70 to 87 months
imprisonment. Nonetheless, the District Court sentenced Flores
to 32 months imprisonment – a term 38 months (and more than
50 percent) below the bottom of the Court’s calculated advisory
Guidelines range.

       Despite this, Flores argues that the Court erroneously
calculated his exposure under the Sentencing Guidelines three
ways: (1) by using § 2S1.2 instead of § 2S1.1 to calculate his

                               27
Guidelines range, (2) by imposing a two-level abuse of trust
enhancement under § 3B1.3, and (3) by refusing to apply a four-
level mitigating role reduction under § 3B1.2(a). We need not
reach the merits of any of these contentions, however, because
even if we rule that the District Court erred in calculating the
advisory Guidelines range in any of the respects asserted by
Flores, the error was harmless. Indeed, had Flores received a
minor role adjustment or not been held liable for abuse of trust
or use of a special skill, the bottom of his Guidelines range
would have been 57 months. If Flores’ Guidelines range had
been calculated under § 2S1.2 instead of § 2S1.1, the bottom of
his Guidelines range would have been 51 months. Finally, if
Flores had received a minimal role adjustment, the bottom of his
Guidelines range would have been 46 months. Even if the
District Court erred in all the respects asserted by Flores, his
Guidelines range would have been 27-33 months, thus
surrounding his 32-month sentence. Moreover, the District
Court clearly considered all the factors in 18 U.S.C. § 3553(a)
in reaching its sentence and used its discretion in light of these
factors, rather than in the application of a specific downward
departure, to go below his advisory Guidelines range to identify
the appropriate sentence for Flores. In this context, there is no
conceivable way Flores can prevail in challenging his sentence.

      F. Was the sentence imposed by the District Court
unreasonable under Booker?

       Flores’ final argument is that his sentence was

                               28
unreasonable under United States v. Booker, 543 U.S. 220
(2005). As mentioned above, the District Court adopted the
recommendation of the PSR and determined that there was a
“presumptive incarceration sentence of 70 to 87 months” under
the Sentencing Guidelines. The Court concluded, however, that
this “kind of sentence was unduly harsh,” and opted to impose
“something that would be fair in the overall scheme of things.”
It also acknowledged that “the Supreme Court’s Booker decision
was just last week and the Court is not constrained or harnessed
by the Guidelines,” and expressed its intent to treat Flores more
like his co-defendant, Victoria Hernandez.

       Quite properly, the District Court was concerned about
sentencing disparities among co-defendants. Section 3553(a)(6)
specifically requires the Court to take into consideration “the
need to avoid unwarranted sentence disparities among
defendants with similar records who have been found guilty of
similar conduct.” Nonetheless, Flores argues that he was
harmed because the District Court erroneously felt bound by the
Guidelines as they had been applied to Hernandez, who received
a 30-month term of imprisonment prior to the Booker decision.
The crux of Flores’ argument here is that it is possible that had
Hernandez been sentenced after Booker, similar to himself, she
would have received a sentence less than the 30 months the
Court imposed for her under the then-mandatory Guidelines.

        There is no evidence in the record that the Court
identified Flores’ sentence under the misapprehension that

                               29
Hernandez’s Guidelines range was in any way binding upon it.
Nor was the District Court unaware that Hernandez’s sentence
had been calculated before Booker. Instead, the District Court
compared Flores with his co-defendants and decided to give him
a break by reducing his sentence by more than 50 percent to
create parity with a far less culpable co-defendant “regardless of
the Sentencing Guidelines.” Moreover, Flores and Hernandez
were not similarly situated because, inter alia, Hernandez had
been involved in the conspiracy for a shorter time, opened fewer
corporations, was not an attorney, and had accepted
responsibility and pled guilty rather than going to trial.
Furthermore, Hernandez pled to conspiracy to commit money
laundering under 18 U.S.C. § 1957, which resulted in a lower
base offense level than that of Flores, who was convicted of
conspiring to violate 18 U.S.C. § 1956. Thus, to the extent the
District Court “erred,” it most certainly did so in Flores’ favor,
and he can hardly complain.

                            *****

       For the reasons provided above, the District Court’s
ruling on Flores’ motion for acquittal/new trial is affirmed and
the sentence imposed by the District Court on Flores is
reasonable and thus affirmed.




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