                  NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                            File Name: 08a0007n.06
                             Filed: January 7, 2008

                                                 06-2016

                            UNITED STATES COURT OF APPEALS
                                 FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA,                             )
                                                      )
        Plaintiff-Appellee,                           )
                                                      )
v.                                                    )    ON APPEAL FROM THE UNITED
                                                      )    STATES DISTRICT COURT FOR THE
MARCO ANTONIO GARCIA,                                 )    WESTERN DISTRICT OF MICHIGAN
                                                      )
        Defendant-Appellant.                          )




        Before: DAUGHTREY and COOK, Circuit Judges; VINSON,* District Judge.


        PER CURIAM.           The defendant, Marco Garcia, was convicted of conspiracy to

distribute marijuana, in violation of 21 U.S.C. § 841(a)(1); engaging in a continuing criminal

enterprise (CCE), in violation of 21 U.S.C. § 848; and conspiracy to launder money, in

violation of various sections of 18 U.S.C. § 1956. At sentencing, the district judge

recognized that the marijuana conspiracy was a lesser-included offense of the CCE charge

and, therefore, held the sentence on this conviction “in abeyance,” and sentenced the

defendant to 240 months on each of the other two convictions, to be served concurrently.

The defendant now appeals both his convictions and his sentence on the grounds that (1)

the money-laundering conspiracy is also a lesser included offense of the CCE charge, (2)


        *
         The Hon. C. Roger Vinson, United States District Judge for the Northern District of Florida, sitting
by designation.
06-2016
United States v. Garcia

the CCE charge should not have been submitted to the jury, (3) the CCE jury instruction

was improper, and (4) the district court committed various trial errors that together

constituted cumulative error affecting his substantial rights. We find no reversible error and

affirm.


                      FACTUAL AND PROCEDURAL BACKGROUND


          The indictment in this case alleged that Marco Garcia and several of his family

members, including his mother, Sandra Riojas Garcia, his father, Antonio Garcia, his

brother, Victor Garcia, his sister, Paty Garcia, another sister, Sandra Garcia Leal, and his

brother-in-law, Jose Juan Ramses Garcia, were all involved in a drug operation in which

they imported large quantities of marijuana from Miguel Aleman, Mexico, to Roma, Texas,

and then transported it to Lansing, Michigan, where they sold it to street dealers. The

investigation into the Garcia family’s drug operation became known to the family sometime

in October 1994, when law enforcement executed search warrants at some of their

residences.     In December 1994, arrest warrants were issued for all of the indicted

defendants and, that same month, Marco’s mother, father, and sister Paty were arrested.

They were tried and convicted in 1995.


          Between the time the search warrants were executed and the arrest warrants were

issued, Marco and his brother Victor had traveled to Miguel Aleman, where they heard

about their parents’ and sister Paty’s arrests. As a result, they resided in Mexico from that

time on. Marco’s sister Sandra and her husband, Jose, were in the United States when

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United States v. Garcia

they heard about the arrests, and they immediately fled to Miguel Aleman to join the Garcia

brothers. Marco, Victor, Sandra and Jose continued to live in Miguel Aleman from 1994

to 2005. In February of that year, Sandra and Victor were extradited from Mexico to face

charges in Michigan.      Both entered guilty pleas to the drug and money-laundering

conspiracy counts. Later in 2005, Marco was extradited and went to trial.


       Marco’s trial was lengthy, with 34 witnesses and over 500 exhibits. Among the

witnesses were his three siblings, Sandra, Victor, and Paty, all three of whom described

how the Garcia family’s drug operation worked and Marco’s leadership role in it. The

supplier of marijuana in Mexico was a man named Sergio Flores. Marco and his brother-

in-law Jose were the only two members of the family to deal with Sergio Flores directly.

Once Marco or Jose obtained the marijuana from Sergio and brought it into Roma, Texas,

various family members arranged for the drugs to be transported to Lansing, Michigan,

where other family members would arrange for it to be unpacked and sold. Payment for

the drugs often would be wired from Lansing to Roma via Western Union, and Garcia

family members sometimes paid third parties to make the Western Union transactions in

order to avoid having the Garcia name associated with large amounts of money. Marco

took part in all aspects of the business, including arranging for vehicles and drivers to

transport the drugs, arranging for storage of the marijuana in Lansing, speaking with the

family’s main buyer in Lansing, and receiving drug money via Western Union.




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       As noted above, Marco was convicted by a jury of conspiracy to distribute

marijuana, engaging in a continuing criminal enterprise, and conspiracy to commit money-

laundering. At sentencing, the district court recognized that under Rutledge v. United

States, 517 U.S. 292, 297 (1996), the marijuana conspiracy was a lesser included offense

of the CCE charge. Although the judge initially intended to vacate the conviction on the

marijuana-conspiracy count, at the request of the U.S. Attorney’s Office, he ordered that

sentencing for that conviction be held “in abeyance unless the conviction and sentencing

on [the other two convictions] are overturned.” The court then sentenced the defendant

to 240 months on each of the other convictions, to be served concurrently.


                                        DISCUSSION


1. The Money-Laundering Conspiracy Conviction


       The defendant contends that the district court should also have held that conspiracy

to commit money laundering is either a lesser-included offense, or is factually

indistinguishable from, the charge of engaging in a continuing criminal enterprise and,

therefore, that one of those two counts should have been vacated. Because the defendant

failed to raise this issue in the district court, pursuant to Federal Rule of Criminal Procedure

52(b) we may review this issue for only plain error. We conclude that under the long-

standing Blockburger test, the two counts constitute separate offenses.




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       In Blockburger v. United States, 284 U.S. 299, 304 (1932), the Supreme Court

announced the rule for determining whether two statutory provisions define only one crime,

so that conviction under both provisions would violate the Double Jeopardy Clause of the

Fifth Amendment: “the test to be applied to determine whether there are two offenses or

only one, is whether each provision requires proof of a fact which the other does not.” In

the case of a conspiracy count and a CCE count, the pertinent question thus becomes

“whether the . . . conspiracy offense requires proof of any element that is not part of the

CCE offense.” Rutledge, 517 U.S. at 298 (citing Blockburger, 284 U.S. at 304).


       To establish that a defendant has engaged in a continuing criminal enterprise in

violation of 21 U.S.C. § 848, the government must prove:


       (1) that the defendant committed a felony violation of federal narcotics laws
       [21 U.S.C. §§ 801 et. seq.]; (2) that the violation was part of a continuing
       series of three or more drug offenses committed by the defendant; (3) that
       the defendant committed the series of offenses in concert with five or more
       persons; (4) that the defendant acted as an organizer, supervisor, or
       manager with regard to these five or more persons, and (5) that the
       defendant obtained substantial income and resources from this series of
       violations.


United States v. Avery, 128 F.3d 966, 973 (6th Cir. 1997). To establish conspiracy to

distribute controlled substances in violation of 21 U.S.C. § 846, “the government must

prove that the conspiracy existed, that the accused knew of the conspiracy, and that he

knowingly and voluntarily joined in it.” Id., at 970 (internal quotations marks and citation

omitted). Because conspiracy to distribute marijuana is a felony drug offense under 21


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06-2016

U.S.C. § 846, proof of all three of the elements of such a conspiracy establishes the first

element of a CCE count, and the offense is completely subsumed within the definition of

CCE as a lesser-included offense. In other words, the drug-trafficking conspiracy count

does not require proof of any element that is not part of the CCE count.


       It is a different situation, however, when, as in this case, the conspiracy charge at

issue is not itself a felony violation of the federal narcotics laws. Cf. Avery, 128 F.3d at

970, 972 (vacating § 846 drug conspiracy as lesser included offense of CCE charge but

letting stand Avery’s conviction for money-laundering conspiracy under 18 U.S.C. § 371).

In order to convict a defendant of conspiracy to launder money under 18 U.S.C. § 1956,

the government must prove: (1) that two or more persons conspired to commit the crime

of money laundering, and (2) that the defendant knowingly and voluntarily joined the

conspiracy. See Sixth Circuit Pattern Jury Instructions - 3.01A; Whitfield v. United States,

543 U.S. 209, 212 (2005) (§ 1956 conspiracy does not require proof of an overt act).

Unlike a drug conspiracy, proof of these two elements of a money-laundering conspiracy

does not have any relation to the first element of CCE. Moreover, although some of the

same evidence may be relevant in establishing both a money laundering conspiracy and

the last element of CCE, to the extent that the evidence establishes that the defendant

obtained substantial income and resources from violation of the drug laws, this last

element clearly does not require that the elements of a money-laundering conspiracy be

proven. Indeed, the final element of CCE does not require that the profits be laundered

at all, let alone that the defendant take part in a conspiracy to do so. See United States

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USA v. Garcia
06-2016

v. DeCarlo, 434 F.3d 447, 455-56 (6th Cir. 2006) (“The Double Jeopardy Clause is not

violated merely because the same evidence is used to establish more than one statutory

violation if discrete elements must be proved in order to make out a violation of each

statute”). Because conspiracy to commit money-laundering requires proof of elements that

are not required to prove CCE and, thus, is not a lesser-included offense of CCE, there

was no double jeopardy violation in Garcia’s convictions for both offenses.


2. Jury Consideration of CCE Count


       The defendant contends that it was error for the district court to submit the CCE

count to the jury because “there was no evidence as to any substantial sums of money

being paid to Marco Garcia,” as required by the fifth element of CCE. That element of the

offense requires proof that the defendant obtained substantial income and resources from

the series of narcotics violations. Because the defendant failed to raise this issue in district

court, under Federal Rule of Criminal Procedure 52(b), we review this issue only for plain

error and find none.


       To establish the fifth element of CCE, it is sufficient for the government to show that

the defendant obtained gross income of a considerable amount; the government need not

show that the defendant made an actual net profit. See United States v. Jeffers, 532 F.2d

1101, 1116-17 (6th Cir. 1976), reversed on other grounds, 432 U.S. 137 (1977). At trial,

a number of witnesses testified that Marco Garcia was one of the heads of the drug

distribution business and that substantial amounts of money were exchanged, often via

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Western Union, in relation to various aspects of the operation. Additionally, several

witnesses testified specifically about money paid to Marco in relation to the sale of

marijuana. The jury could certainly conclude from this evidence that the fifth element of

CCE was met.


3. Jury Instruction on CCE


       The defendant next complains that the district court erred in failing to submit special

interrogatories to the jury regarding the second and third elements of CCE, requiring that

the government establish a series of three or more drug offenses and five or more people

with whom the defendant committed drug-trafficking. In support of this contention, the

defendant cites Richardson v. United States, 526 U.S. 813 (1999). Because he failed to

raise this issue in the district court, pursuant to Rule 52(b), we review it only for plain error

and, once again, find none.


       In Richardson, the Supreme Court held that in determining guilt on a CCE charge,

the jury must unanimously agree on which three violations make up the continuing series

of three or more drug offenses. However, nothing in the opinion requires that the jury be

given a special interrogatory on the issue. See Richardson, 526 U.S. at 824. The

Richardson Court did not reach the issue of unanimity on proof of the number of people

with whom the defendant committed the violations, assuming without deciding that

unanimity was not required on this aspect of the crime. See id. The Court did note,

however, that the five person requirement was “significantly different from the [series]

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provision . . . in respect to language, breadth, tradition, and other factors we have

discussed.” Id. Indeed, the Court’s analysis hinged largely on the statutory language

describing the predicate series of drug offenses as “violations,” language that is not present

with respect to the five-person requirement. See id. at 818. In his dissent, Justice

Kennedy noted that “[w]ith respect to the requirement of action in concert with five or more

other persons, every Court of Appeals to have considered the issue has concluded that the

element aims the statute at enterprises of a certain size, so the identity of the individual

supervisees is irrelevant.” Id. at 829 (Kennedy, J. dissenting). At least one court of

appeals has confirmed, post-Richardson, that the jury need not be unanimous regarding

the identity of the five persons. See United States v. Stitt, 250 F.3d 878, 885-887 (4th Cir.

2001) (holding that the jury need not unanimously agree on the five persons requirement

of CCE and likening the requirement to unnamed co-conspirators under the law of

conspiracy), sentence reversed on post-conviction relief, 475 F.Supp.2d 571 (E.D. Va.

2007).


         In this case, the jury was instructed in conformity with Richardson. In the jury

charge the court stated:


         The defendant is charged in Count 3 of the indictment with conducting a
         continuing criminal enterprise in violation of federal law. It is a crime for
         anyone to engage in what is called a continuing criminal enterprise involving
         controlled substances. For you to find the defendant guilty of this crime, you
         must be convinced that the government has proven each of the following
         elements beyond a reasonable doubt:



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06-2016

         First, that the defendant violated the Controlled Substances Act as charged
         in Count 1 or 2 of the indictment.
         Second, that the violations were part of a continuing series of violations,
         which means at least three violations of the Controlled Substances Act.
         These violations must be connected together as a series of related or
         ongoing activities as distinguished from isolated and disconnected acts. You
         must unanimously agree on which of these underlying violations has been
         proven.
         Third, that the defendant obtained substantial income or resources from the
         series of violations.
         Fourth, that the defendant undertook such violations in concert with five or
         more persons with respect to whom the defendant occupied a position of
         organizer, supervisor, or manager. The five other persons need not have
         acted at the same time or in concert with each other. You need not
         unanimously agree on the identity of any other persons acting in concert with
         the defendant as long as each of you finds that there was five or more such
         persons. (Emphasis added)


As the italicized language indicates, the jury was given the unanimity instruction required

by Richardson with regard to the series of drug violations. We conclude that the lack of a

unanimity instruction with regard to the five-person requirement is simply not error under

Richardson or under relevant circuit case law, and the defendant has failed to make a

reasoned argument that would alter this conclusion.1


         1
           Although the defendant did not request, and the jury was not given, any special interrogatories
regarding the elem ents of CCE, and although nothing in Richardson indicates that any such interrogatory is
necessary, at least one court of appeals has concluded that special interrogatories m ay be advisable in
com plex CCE cases. Here, however, the defendant has sim ply failed to show why this is such a case and,
m oreover, even if it were, the decision of “whether and how to utilize special interrogatories in such cases”
is within “the broad discretion of the district court.” United States v. Ogando, 968 F.2d 146, 148-49 (2nd Cir.
1992) (suggesting that notwithstanding the law’s traditional distaste for special interrogatories, in com plex
CCE cases, as in com plex RICO cases, courts m ay be well-advised to use special interrogatories, but
concluding that such a decision is soundly within the discretion of the court); see also United States v.
Shrumpert Hood, 210 F.3d 660, 662 (6th Cir. 2000). In reviewing the jury instructions in this case for plain
error, we cannot fault the district court’s failure to exercise its discretion to em ploy special interrogatories sua
sponte.

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4. Various Trial Errors


       The defendant contends that an accumulation of errors at trial resulted in such

serious prejudice that he was denied a fair hearing. We have reviewed each of these

assignments of error and reach the opposite conclusion.


       For example, the defendant now complains that he was forced to appear in prison

garb in front of the jury. From the record, it appears that for the first three days of his trial,

the defendant appeared in court in an outfit that was issued to him when he was

incarcerated in Mexico, consisting of a khaki shirt and pants that looked much like a

janitor’s uniform. Because the outfit was not the customary orange jumpsuit issued in

many jails in this country, apparently neither the court nor the attorneys realized that the

defendant was in prison garb until, on the third day of trial, in the process of identifying the

defendant for the record, a witness stated that it looked like Marco was wearing “federal

inmate clothes.” Neither the defendant nor his counsel had objected to his attire up to that

point, nor did the attorney raise any objection in response to the witness’s comment.

Instead, it was the district judge, sua sponte, who soon thereafter raised the issue with

counsel out of the presence of the jury and instructed the defendant’s attorney that he

could obtain funds to buy the defendant street clothing if he wished. The defendant was

dressed in appropriate street clothing for the remainder of the trial.


       We review this issue for plain error under the Supreme Court’s analysis in Estelle

v. Williams, 425 U.S. 501 (1976), in which the Court held that “the State cannot,

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06-2016

consistently with the Fourteenth Amendment, compel an accused to stand trial before a

jury while dressed in identifiable prison clothes.” 425 U.S. at 512 (emphasis added). The

Court also held, however, that “the failure to make an objection to the court as to being

tried in such clothes, for whatever reason, is sufficient to negate the presence of

compulsion necessary to establish a constitutional violation.” Id. at 512-13. Here, it is

uncontested that the defendant made no objection and, therefore, there is no constitutional

violation.


       Even less compelling is the defendant’s argument that the district court erred in

permitting the introduction, without objection, of the plea agreements of several of the

prosecution’s witnesses.     The defendant argues that this was error because “such

documents are filled with hearsay and irrelevant prejudicial information,” including

“particularly prejudicial . . . references ... that the witnesses are making ‘deals for truthful

testimony’ which has a substantial vouching effect.” However, we rejected this same

argument in United States v. Tocco, 200 F.3d 401, 416 (6th Cir. 2000).


       The defendant further contends that the court’s jury instruction on flight to avoid

prosecution was not supported by the evidence at trial. However, the instruction was the

result of an agreed compromise between defense counsel and the government. He also

challenges as prejudicial the district court’s mention of an earlier trial involving a number

of the Garcia family members, but there is no developed argument or citation of case law

in his appellate brief to support this contention. The district court allowed the introduction


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06-2016

of the defendant’s tax returns for the years 1991 through 1993 and testimony that he had

not filed tax returns from 1983 through 1990, all without objection. If the admission of this

evidence violated Federal Rule of Evidence 404(b), as the defendant now belatedly

argues, it was harmless error at most, given the overwhelming nature of the other evidence

of the defendant’s guilt. Finally, we note that the defendant’s allegation of misconduct on

the part of the government prosecutor is not sufficiently developed to permit review on

appeal.


                                      CONCLUSION


       For the reasons set out above, we AFFIRM both the defendant’s convictions for

engaging in a continuing criminal enterprise and conspiracy to commit money laundering

and the sentencing order of the district court. However, the case must be REMANDED to

the district court to permit the entry of an order vacating the defendant’s conviction for

conspiracy to distribute marijuana, which – as pointed out above – is subsumed within the

CCE conviction. See Rutledge, 517 U.S. at 302, 305 (rejecting government’s argument

that the defendant’s drug-conspiracy conviction should be allowed to stand as a “backup”

in case his CCE conviction was later reversed and noting that the mere fact of a conviction

has the potential for “adverse collateral consequences” beyond the actual sentence

imposed for CCE); see also DeCarlo, 434 F.3d at 457 (concluding that conviction on the

lesser-included offense must be vacated).




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