                                                                  [DO NOT PUBLISH]

                        IN THE UNITED STATES COURT OF APPEALS

                               FOR THE ELEVENTH CIRCUIT           FILED
                                ________________________ U.S. COURT OF APPEALS
                                                                 ELEVENTH CIRCUIT
                                       No. 10-10070                MARCH 9, 2011
                                                                     JOHN LEY
                                   Non-Argument Calendar               CLERK
                                 ________________________

                            D.C. Docket No. 0:97-cr-06007-FAM-6

UNITED STATES OF AMERICA,

lllllllllllllllllllll                                                    Plaintiff-Appellee,




                                            versus

FRITZ LAFONTANTE,
a.k.a. Guy,

lllllllllllllllllllll                                              Defendant-Appellant.

                                ________________________

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

                                       (March 9, 2011)

Before WILSON, PRYOR and KRAVITCH, Circuit Judges.

PER CURIAM:
      Fritz LaFontante appeals his convictions and sentence for conspiracy to

import cocaine; conspiracy to possess with intent to distribute cocaine; and

conspiracy to launder money. He was charged, along with a number of co-

defendants, as a member of a large-scale drug organization that established a

cocaine transportation and distribution network from Colombia to the United

States from June 1987 to November 1996. LaFontante absconded after the jury

was seated, and the jury convicted LaFontante in absentia. In 2009, LaFontante

was apprehended and sentenced to a total of 240 months’ imprisonment.

LaFontante raises three issues on appeal, and we affirm for the following reasons.

                                         I.

      First, LaFontante argues that we should vacate his convictions because the

government’s evidence established multiple, independent conspiracies, a material

and prejudicial variance from the single unified conspiracy charged in each count

of the indictment. According to LaFontante, the evidence showed that he had split

from co-defendant Jacques Ketant and had opened his own smuggling route in

Curacao that was a “wholly separate conspiracy, not related to Ketant and the

conspiracy charged in the indictment.” LaFontante asserts that there were at least

three separate distribution routes: his own, which shipped cocaine through

Curacao; co-defendant Ketant’s, which shipped cocaine through Haiti; and co-

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defendant Luckner Guillaume’s, which shipped cocaine through Canada into New

York and Chicago. To the extent he and other smugglers used the same corrupt

officials, LaFontante asserts this was akin to a “rimless wheel,” which was

insufficient to demonstrate a single conspiracy. He notes that he did not attend the

initial meeting with members of the Medellin Cartel and used different couriers

than his co-defendants. LaFontante argues that for a chain conspiracy, the

government would need to establish interdependence, which it could not do

simply by showing that the distributors used the same routes. He alleges this

variance was prejudicial because it allowed the government to introduce

irrelevant, but highly inflammatory, evidence.

      “‘We will not reverse a conviction because a single conspiracy is charged in

the indictment while multiple conspiracies may have been revealed at trial unless

the variance is [1] material and [2] substantially prejudiced the defendant.’”

United States v. Richardson, 532 F.3d 1279, 1284 (11th Cir. 2008) (quoting

United States v. Edouard, 485 F.3d 1324, 1347 (11th Cir. 2007)). “‘Because the

jury determines the question of fact as to whether the evidence establishes a single

conspiracy, the arguable existence of multiple conspiracies does not constitute a

material variance from the indictment if, viewing the evidence in the light most

favorable to the Government, a reasonable trier of fact could have found that a

                                          3
single conspiracy existed beyond a reasonable doubt.’” Id. (quoting United States

v. Moore, 525 F.3d 1033, 1042 (11th Cir. 2008)). We will not disturb a jury’s

conclusion that a single conspiracy existed as long as it is supported by the

evidence. Id. “A material variance will only result if there is no evidentiary

foundation for the jury’s finding of a single conspiracy, and only then will it need

to be determined whether the variance requires reversal, i.e., whether it

substantially prejudiced [LaFontante].” Id.

      To determine whether the evidence supports a finding of a single

conspiracy, we evaluate: “‘(1) whether a common goal existed; (2) the nature of

the underlying scheme; and (3) the overlap of participants.’” Id. (quoting Moore,

525 F.3d at 1042). “The government must establish interdependence amongst the

co-conspirators.” United States v. Seher, 562 F.3d 1344, 1366 (11th Cir. 2009).

We have explained that:

             The existence of separate transactions does not have to
             imply separate conspiracies if the co-conspirators acted in
             concert to further a common goal. Courts typically define
             the common goal element as broadly as possible, with
             “common” being defined as “similar” or “substantially the
             same.” If a defendant’s actions facilitated the endeavors of
             other coconspirators, or facilitated the venture as a whole,
             then a single conspiracy is shown. Each co-conspirator
             thus does not have to be involved in every part of the
             conspiracy.



                                          4
Id. (citations omitted) (internal quotation marks omitted).

      Applying this standard, the jury could reasonably conclude, beyond a

reasonable doubt, that the evidence established a large criminal organization

whose interconnected members imported cocaine from Haiti into the United States

using corrupt airport officials in each country. The cocaine was then sold in the

United States, and the profits were flown back to Haiti. LaFontante’s counsel

argued extensively at trial that the government had proved multiple conspiracies,

rather than the unified conspiracies charged in the indictment, and the district

court gave a multiple conspiracy jury instruction. But the evidence supports the

jury’s decision that LaFontante participated in a larger conspiracy with respect to

importing cocaine, possessing it with the intent to distribute, and laundering the

drug proceeds.

      It is true, as LaFontante argues, that there was evidence tending to establish

multiple conspiracies. For example: Evens Gourgue stated that his dealings with

LaFontante and Ketant were different; LaFontante made an independent decision

to import drugs through Curacao; and Ketant had an independent partnership with

Guillaume and another individual to import drugs into New York. But there was

also evidence tending to establish the existence of the single conspiracies charged

in the indictment. The various participants continued to have the same common

                                          5
goal: the importation of cocaine into the United States. Although the locations

differed, the method remained constant: safe passage of cocaine through departing

and arriving airports using couriers and corrupt officials. The fact that other co-

defendants participated in smuggling attempts without LaFontante’s participation

does not justify overturning the jury’s verdict and finding that there were multiple

conspiracies with respect to each charged count.

      LaFontante was identified as Ketant’s “partner,” at least up until 1993.

Even though LaFontante may have stopped working directly with Ketant, there is

no evidence that he ever formally withdrew from the conspiracy itself, or ever

terminated his relationship with other co-conspirators. See United States v.

Finestone, 816 F.2d 583, 589 (11th Cir. 1987) (“A mere cessation of activity in the

conspiracy is not sufficient to establish withdrawal.”). Even after the partnership

ended, LaFontante and Ketant continued to use common couriers, including Junie

Jean and her husband. The jury heard evidence indicating that Ketant interacted

with co-defendants Joseph Francois and Marc Valme regarding drug distribution,

and a witness testified that he saw LaFontante with Francois twice. To deliver

cocaine to Jean, LaFontante used Claudie Adam, Ketant’s mother-in-law.

LaFontante and Ketant also continued to rely on Valme in Haiti and Gourgue in

America. While LaFontante did not participate in every transaction, these

                                          6
significant overlapping relationships between the parties were sufficient to infer

LaFontante’s awareness of the organization’s common goals.

      Additionally, for the reasons discussed in Part II, the evidence likewise

showed that LaFontante and his co-defendants engaged in similar transactions

indicative of money laundering. The co-defendants all gave or accepted bribes to

ensure the safe passage of cocaine through international borders. LaFontante

transported $80,000 in cash from the United States to Curacao, paid Jean and

Gourgue for their smuggling services, and paid travel and hotel expenses for

couriers in order to promote and successfully carry on the organization’s cocaine

trafficking activities. From this evidence, the jury could infer a single conspiracy

to launder the drug trafficking proceeds.

      Accordingly, no material variance existed between the evidence presented at

trial and the single conspiracy charged in each count. LaFontante now admits on

appeal that he participated in drug transactions, and although he argues that he did

so independently, the jury was entitled to find otherwise. Because we hold that a

material variance did not exist in this case as to any of the charged conspiracies,

there is no need to address the prejudice prong. See Richardson, 532 F.3d at 1284.

                                            II.

      LaFontante next argues that the evidence was insufficient to sustain his

                                            7
conviction for conspiracy to commit money laundering. LaFontante claims that

the evidence did not support this conviction because the only evidence linking him

to the money laundering was that he took $80,000 in cash to Curacao. He argues

that there was no explanation as to what he did with the money, and there is no

indication that he entered into a criminal agreement with his co-defendants as to

what to do with those funds. He also asserts that, even if there were sufficient

evidence to prove that he committed money laundering, there was no evidence that

he entered into an unlawful agreement with anyone else to do so.

      We review challenges to the sufficiency of the evidence de novo, viewing

the evidence in the light most favorable to the government. United States v.

Knight, 562 F.3d 1314, 1322 (11th Cir.), cert. denied, 130 S. Ct. 192 (2009). We

will uphold the conviction unless the jury could not have found LaFontante guilty

under any reasonable construction of the evidence. See United States v. Chastain,

198 F.3d 1338, 1351 (11th Cir. 1999). Stipulated facts are sufficient to prove

elements of the charged offenses. Knight, 562 F.3d at 1328. We will reverse only

if “‘no trier of fact could have found guilt beyond a reasonable doubt.’” United

States v. Yost, 479 F.3d 815, 818–19 (11th Cir. 2007) (per curiam) (quoting United

States v. Lyons, 53 F.3d 1198, 1202 (11th Cir. 1995)).

      We are bound by the jury’s credibility determinations unless the testimony

                                          8
is “‘incredible as a matter of law.’” United States v. Calderon, 127 F.3d 1314,

1325 (11th Cir. 1997) (quoting United States v. Hewitt, 663 F.2d 1381, 1385–86

(11th Cir. 1981)), modified on other grounds by United States v. Toler, 144 F.3d

1423, 1427 (11th Cir. 1998). Testimony is incredible only if it relates to “‘facts

that [the witness] physically could not have possibly observed or events that could

not have occurred under the laws of nature.’” Id. (alteration in original) (quoting

United States v. Rivera, 775 F.2d 1559, 1561 (11th Cir. 1985)).

      To convict LaFontante of conspiracy, the government had to prove (1) that a

conspiracy existed; (2) that LaFontante knew about the conspiracy; and (3) that

LaFontante knowingly and voluntarily joined the conspiracy. See United States v.

Molina, 443 F.3d 824, 828 (11th Cir. 2006). The defendant’s knowing

participation may be proven by direct or circumstantial evidence. United States v.

Miranda, 425 F.3d 953, 959 (11th Cir. 2005). Such circumstantial evidence

includes “‘inferences from the conduct of the alleged participants or from

circumstantial evidence of a scheme.’” Id. (quoting United States v. Garcia, 405

F.3d 1260, 1270 (11th Cir. 2005) (per curiam)). For example, acts done in

furtherance of the purpose of the conspiracy may be evidence of the underlying

agreement. United States v. Moore, 525 F.3d 1033, 1040 (11th Cir. 2008).

      “Section 1956(h) subjects anyone who conspires to commit a crime under §

                                          9
1956 to the same penalties as the offense conduct.” United States v. Frazier, 605

F.3d 1271, 1281 (11th Cir. 2010). To prove money laundering pursuant to 18

U.S.C. § 1956(a)(1)(A)(i), the government must show that: “(1) the defendant

conducted or attempted to conduct a financial transaction; (2) the defendant knew

the property involved in the transaction represented the proceeds of unlawful

activity; (3) the property involved was in fact the proceeds of the specified

unlawful activity; and (4) the defendant conducted the financial transaction ‘with

the intent to promote the carrying on of [the] specified unlawful activity.’” United

States v. Williamson, 339 F.3d 1295, 1301 (11th Cir. 2003) (per curiam)

(alteration in original) (quoting § 1956(a)(1)(A)(i)). A defendant may also commit

money laundering by transporting or transferring money to and from the United

States with the intent promote a specified unlawful activity. See § 1956(a)(2)(A).

And “[t]he government need not prove that the funds came from a specific illegal

action.” Frazier, 605 F.3d at 1282. Proof that the funds were drug proceeds, or a

defendant’s knowledge of such, may be established by circumstantial evidence.

Id.

      Looking at the evidence in the light most favorable to the government, there

was sufficient evidence for a jury to conclude beyond a reasonable doubt that

LaFontante knowingly and willfully agreed to launder drug proceeds. This comes

                                         10
primarily in the form of circumstantial evidence of an agreement. See United

States v. Baptista-Rodriguez, 17 F.3d 1354, 1369 (11th Cir. 1994) (“Direct

evidence of an illegal agreement is not necessary; circumstantial evidence may

suffice.”). LaFontante bribed officials in order to allow cocaine to pass through

security checkpoints at airports, and he was caught taking $80,000 into Curacao.

The evidence showed that LaFontante paid for the expenses and the salaries of

drug couriers. He paid for the couriers’ lodging around the same time that the

couriers were caught transporting cocaine, so the jury could infer that the lodging

was meant to promote the drug trafficking scheme. See § 1956(a)(1)(A)(i);

Frazier, 605 F.3d at 1282. He also gave a jet ski and an all-terrain vehicle to

Gourgue in exchange for Gourgue’s assistance in importing cocaine, and he

offered to have a friend launder Gourgue’s drug proceeds to conceal the income

source. Notably, co-defendant Ketant engaged in similar conduct by exchanging

vehicles for drug-related services with couriers. Moreover, LaFontante’s

expenditures could not be explained adequately by his reported legitimate income.

      Viewing this evidence in the light most favorable to the government, the

jury could reasonably infer that LaFontante both engaged in money laundering and

entered into an agreement to do so. Accordingly, we hold that there was

sufficient evidence to support LaFontante’s conviction for conspiracy to commit

                                         11
money laundering.

                                         III.

      Finally, LaFontante challenges the district court’s imposition of a four-level

aggravating role enhancement, asserting that he did not qualify as a leader or

organizer. A defendant’s role as an organizer or leader is a factual finding that we

review for clear error. See United States v. Jiminez, 224 F.3d 1243, 1250–51 (11th

Cir. 2000). We will not find clear error unless “‘we are left with a definite and

firm conviction that a mistake has been committed.’” United States v. Crawford,

407 F.3d 1174, 1177 (11th Cir. 2005) (quoting Glassroth v. Moore, 335 F.3d

1282, 1292 (11th Cir. 2003)). When a defendant objects to a fact in the PSI, the

government must prove that fact by a preponderance of the evidence, by

presenting “reliable and specific evidence.” See United States v. Martinez, 584

F.3d 1022, 1027 (11th Cir. 2009).

       To assess whether a defendant was an “organizer or leader of a criminal

activity,” we consider several factors, including:

             (1) the exercise of decision making authority, (2) the nature
             of participation in the commission of the offense, (3) the
             recruitment of accomplices, (4) the claimed right to a larger
             share of the fruits of the crime, (5) the degree of
             participation in planning or organizing the offense, (6) the
             nature and scope of the illegal activity, and (7) the degree
             of control and authority exercised over others.

                                          12
United States v. Gupta, 463 F.3d 1182, 1197–98 (11th Cir. 2006) (citing U.S.S.G.

§ 3B1.1 cmt. n.4). Not all of these considerations need to be present. United

States v. Ramirez, 426 F.3d 1344, 1356 (11th Cir. 2005) (per curiam). “‘Section

3B1.1 requires the exercise of some authority in the organization, the exertion of

some degree of control, influence, or leadership.’” United States v. Yates, 990

F.2d 1179, 1182 (11th Cir. 1993) (per curiam) (quoting United States v. Brown,

944 F.2d 1377, 1385 (7th Cir. 1991)).

      “There can, of course, be more than one person who qualifies as a leader or

organizer of a criminal association or conspiracy.” U.S.S.G. § 3B1.1 cmt. n.4. A

role enhancement requires that “the defendant exerted some control, influence or

decision-making authority over another participant in the criminal activity.”

Martinez, 584 F.3d at 1026. A defendant’s management of the assets of the

conspiracy, on its own, is insufficient to support a § 3B1.1 enhancement. Id.

      After careful review, we affirm. Although LaFontante may not have been

the kingpin of the overall conspiracy, he organized and led the opening and

operation of the Haiti-Curacao-United States route. Moreover, LaFontante

employed and directed the affairs of multiple couriers. In addition to recruiting

and overseeing these couriers, he made their travel plans, paid them, and paid for

their travel and hotel expenses. LaFontante also recruited corrupt public officials

                                         13
into his personal service. LaFontante’s actions consisted of more than merely

managing the assets of the conspiracy. LaFontante coordinated and controlled the

movements of drug couriers across international borders, which involved a

significant amount of planning and coordination. A four-level role enhancement

was appropriate.

      AFFIRMED.




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