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No. 08-731

 

In the Supreme Court of the United States

SALVADOR MAGLUTA, PETITIONER

v.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT

 

BRIEF FOR THE UNITED STATES IN OPPOSITION

ELENA KAGAN
Solicitor General
Counsel of Record
RITA M. GLAVIN
Acting Assistant Attorney
General
JOSEPH C. WYDERKO
Attorney
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217

QUESTIONS PRESENTED

1. Whether petitioner's convictions for money laun dering were barred by collateral estoppel.

2. Whether the district court correctly sentenced petitioner in part on the basis of acquitted conduct.

In the Supreme Court of the United States

No. 08-731

SALVADOR MAGLUTA, PETITIONER

v.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

 

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 1a-16a) is unreported. An earlier opinion of the court of appeals (Pet. App. 17a-51a) is reported at 418 F.3d 1166. An other earlier opinion of the court of appeals (Pet. App. 52a-54a) is unreported. The order of the district court (Pet. App. 55a-59a) is unreported.

JURISDICTION

The judgment of the court of appeals was entered on June 5, 2008. A petition for rehearing was denied on August 5, 2008 (Pet. App. 60a-61a). On October 15, 2008, Justice Thomas extended the time within which to file a petition for a writ of certiorari to and including Decem ber 3, 2008, and the petition was filed on that date. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1).

STATEMENT

Following a jury trial in the United States District Court for the Southern District of Florida, petitioner was convicted of conspiring to obstruct justice and dis obey a court order (Count 1), in violation of 18 U.S.C. 371; conspiring to launder drug proceeds (Count 2), in violation of 18 U.S.C. 1956(h); obstructing justice through witness bribery (Count 6), in violation of 18 U.S.C. 1503; obstructing justice through juror bribery (Count 8), in violation of 18 U.S.C. 1503; and eight counts of money laundering (Counts 34-41), in violation of 18 U.S.C. 1956(a)(1)(B)(i). The district court sen tenced him to 205 years of imprisonment, ordered him to forfeit $15 million and certain real property, and fined him $62,997,915. 03-10694 Gov't C.A. Br. 2. The court of appeals affirmed in part, reversed in part, vacated in part, and remanded. Pet. App. 17a-51a. On remand, the district court sentenced petitioner to 195 years of im prisonment, reduced the fine by $250,000, and imposed the same forfeiture orders. 06-16473 Gov't C.A. Br. 4. The court of appeals affirmed. Pet. App. 1a-16a.

1. Petitioner and his longtime friend Augusto Guill ermo Falcon were two of South Florida's most prolific and notorious drug traffickers. Beginning in the late 1970s, petitioner embarked on a lengthy cocaine traf ficking career that resulted in the distribution of tens of thousands of kilograms of cocaine. See 03-10694 Gov't C.A. Br. 3.

Petitioner and Falcon maintained their drug traffick ing enterprise notwithstanding various run-ins with law enforcement officers. In 1980, petitioner and Falcon pleaded guilty to Florida state drug charges. They re mained free on bond pending appeal and continued to distribute cocaine. In 1985, they were arrested on Cali fornia state drug charges, but they absconded to south Florida. See 03-10694 Gov't C.A. Br. 3.

After exhausting their appeals for their 1980 Florida convictions, petitioner and Falcon were ordered to sur render in August 1987 to begin serving their sentences. Neither surrendered, warrants were issued, and peti tioner was arrested in 1988. Several days after his ar rest, however, petitioner was erroneously released from jail and again became a fugitive. He later told Marilyn Bonachea, his longtime girlfriend, that someone had returned a favor by releasing him from jail. As a fugi tive, petitioner rented luxury homes on Miami Beach, which he paid for with drug proceeds, and he continued to distribute cocaine. See 03-10694 Gov't C.A. Br. 3-4.

In April 1991, a federal grand jury returned a sealed narcotics and continuing criminal enterprise (CCE) in dictment, No. 91-6060, against petitioner, Falcon, and eight associates. Shortly thereafter, the district court entered an order freezing approximately $2 billion in purported drug proceeds and requiring the defendants to obtain court approval before expending funds or dissi pating assets, including those set aside for legal fees. See 03-10694 Gov't C.A. Br. 4.

Petitioner was captured in October 1991. A search of his home uncovered more than $200,000 in cash and sev eral day-timer books that memorialized the distribution of 9367 kilograms of cocaine, worth approximately $149,520,000. See 03-10694 Gov't C.A. Br. 4.

While petitioner was a fugitive, and later an incar cerated defendant awaiting trial in No. 91-6060, Mark Dachs, an attorney and co-conspirator, discovered the identities of certain persons who were cooperating with the government. Petitioner enlisted the aid of Eduardo Lezcano, his wife's brother-in-law, to coordinate hit men from Colombia to murder persons who might testify against petitioner; the prospective victims included attorney Juan Acosta and six former drug associates. Acosta had set up offshore corporations for petitioner to use in laundering drug proceeds; Colombian hit men murdered him in 1988, shortly before he was to appear before a federal grand jury to produce documents re lated to petitioner's offshore interests. Hit men later murdered two of the six drug associates, and tried un successfully to murder the other four. Petitioner told Bonachea that he had directed the three murders and one of the unsuccessful assassination attempts. See 03-10694 Gov't C.A. Br. 5-6.1

While in jail and awaiting trial in No. 91-6060, peti tioner recruited associates to bribe and discourage po tential witnesses from testifying against him; he also recruited fellow prisoners to testify on his behalf. For their loyalty, the prisoners or their families received large cash payments from drug proceeds. See 03-10694 Gov't C.A. Br. 7.

Oscar Mas was one of the inmates recruited and paid to testify against government witnesses in No. 91-6060. Through associates, petitioner paid Mas $87,000 to tes tify falsely against government witness Pedro Rosello. Mas ultimately refused to lie at trial, despite being pres sured by Richard Martinez, a local attorney who was also petitioner's brother-in-law and co-defendant. Out of loyalty to petitioner and financial dependence on him, Bonachea falsely testified in No. 91-6060 by claiming that petitioner had stopped drug trafficking by 1980. See 03-10694 Gov't C.A. Br. 7-8.

Through associates, petitioner also laundered drug proceeds to circumvent the protective order in No. 91-6060 and to pay legal fees, reward associates, wit nesses, and inmates, and maintain the organization's assets. The laundering methods included transporting cash to New York for deposit in overseas banks and sub sequent transfer back to the United States by wire transfers and checks from nominee accounts; transfer ring cash to Latin American exchange houses for the issuance of foreign third-party checks; delivering cash payments through Bonachea and co-conspirator Jorge Hernandez; and delivering cash payments through Co lombian couriers using false identification. While the protective order was in effect, petitioner paid approxi mately $19.5 million in laundered drug proceeds to at torneys and investigators representing members of his organization and other associates; he also paid several million dollars to inmates, associates, and family mem bers. See 03-10694 Gov't C.A. Br. 8-9.

After their co-defendants pleaded guilty, petitioner and Falcon proceeded to trial in No. 91-6060. At the start of the trial, petitioner told Bonachea that his long- time associate Jose Fernandez had recognized a female acquaintance on the jury panel and had, for more than $1 million, recruited her to vote for acquittals and to persuade other jurors to do the same. The jury's fore person, Miguel Moya, a schoolmate of one of petitioner's lawyers and of petitioner's cousin, also accepted a bribe to perform the same functions. See 03-10694 Gov't C.A. Br. 9.2

The jury was sequestered during deliberations. Moya insisted on acquitting and refused to deliberate, saying that he could remain sequestered indefinitely. Pressured by Moya and fearing retribution from peti tioner and Falcon, the jurors favoring conviction re lented and in February 1996 acquitted petitioner and Falcon of all charges. The district court lifted the pro tective order in March 1996. See 03-10694 Gov't C.A. Br. 10.

Following the verdict, a juror who favored conviction but yielded to petitioner's tactics reported his suspicions about Moya to the authorities. An investigation showed that Moya had extensive telephone contact with one of petitioner's associates during the trial. In the 27 months following the trial, Moya and his relatives, who were all persons of modest means, made more than $330,000 in cash expenditures and bank deposits. Following the verdict, petitioner expressed concern to Bonachea that Moya's spending of the bribe money might attract law enforcement attention. See 03-10694 Gov't C.A. Br. 10.

In 1996, after his acquittal in No. 91-6060, petitioner was indicted in the Southern District of Florida in an other case on charges relating to the acquisition, posses sion, and sale of false identification documents. During the trial, he remained free on bond, but fled shortly be fore a verdict was returned. In April 1997, federal mar shals arrested petitioner in Palm Beach. A search of petitioner's car yielded handwritten instructions to asso ciates to assist him in remaining at large by accessing large amounts of cash, supplying cars, finding hiding places for false identification documents, tracking media reports, and locating property suitable for establishing a compound. See 03-10694 Gov't C.A. Br. 10-11.

Petitioner stored more than $50 million in drug pro ceeds to be used in funding his criminal enterprises with at least six associates. Approximately $15 million was hidden in garage floor safes on a property owned by Luis Valverde, a co-defendant and petitioner's long-time associate. In 1995, a fire erupted in the garage where the money was stored. Petitioner's associates salvaged the cash, dried it, and stored it in Valverde's home. A 1999 search of the home uncovered $6 million, some of which had been fire- and water-damaged. See 03-10694 Gov't C.A. Br. 11-12.

At petitioner's direction, Bonachea maintained a led ger documenting $7.7 million that she had laundered for him while he was incarcerated. Following his release from jail in 1996, petitioner pressured Bonachea to give the ledger to him. In October 1996, officers stopped Bonachea while she was in transit to deliver the ledger to petitioner. Officers seized the ledger and other docu ments related to petitioner, including letters directing associates to hide and launder money for him. Petition er then persuaded Bonachea to flee in order to prevent the authorities from compelling her to testify against him. Petitioner's associates delivered tens of thousands of dollars to Bonachea to keep her in hiding in upstate New York. See 03-10694 Gov't C.A. Br. 12-13.

Bonachea was arrested in April 1988. She agreed to cooperate, and, in September 1998, she met with co-defendant Jorge Hernandez while wearing a hidden re corder. During their second meeting, Bonachea ex pressed concern that the bribed female juror from No. 91-6060 might be exposed and endanger the organiza tion. Hernandez assured Bonachea that the juror was "under control" and was not spending her bribe money ostentatiously. See 03-10694 Gov't C.A. Br. 13.

2. The 24-count indictment in No. 91-6060 had charged that, between January 1978 and April 1991, petitioner had engaged in a CCE, in violation of 21 U.S.C. 848; conspired to import cocaine, in violation of 21 U.S.C. 963; and conspired to possess with intent to distribute cocaine, in violation of 21 U.S.C. 846. That in dictment had also charged petitioner with seven counts of importing cocaine, in violation of 21 U.S.C. 952, and 14 counts of possession of cocaine with the intent to distrib ute it, in violation of 21 U.S.C. 841(a), and had alleged that those offenses occurred between mid-1986 and July 1989. 03-10694 Gov't C.A. Br. 16 & n.5.

The indictment in this case charged petitioner with conspiracy and other offenses involving obstruction of justice at his trial in No. 91-6060 through tampering with witnesses, bribing witnesses and jurors, and com mitting murder. See Fifth Superseding Indictment 1-31. In addition, the indictment charged petitioner with con spiring to launder drug proceeds, in violation of 18 U.S.C. 1956(h); and 32 counts of money laundering, in violation of 18 U.S.C. 1956(a)(1)(B)(i). The money laun dering counts alleged that petitioner engaged in finan cial transactions involving the proceeds of drug traffick ing. The money laundering conspiracy charged in Count 2 covered the period from January 1979 to December 2001, and the substantive money laundering offenses were alleged to have occurred between September 1994 and December 1998. See Fifth Supeseding Indictment 25-26, 31-38.

Petitioner moved to dismiss the money laundering charges on grounds of double jeopardy and collateral es toppel; he claimed that his acquittal on drug trafficking charges in No. 91-6060 established that he had not en gaged in drug trafficking after 1980 and precluded the current money laundering charges. The government countered that petitioner's corruption of the jury in No. 91-6060 by bribing its foreperson barred his challenges to the money laundering charges. In the alternative, the government argued that because the jury in the earlier case had returned a general verdict and petitioner had raised multiple defenses, it was impossible to determine the basis for the jury's verdict. The government also ar gued that proof of petitioner's personal involvement in drug trafficking was not an essential element of the money laundering charges. See 03-10694 Gov't C.A. Br. 17.

After a hearing, a magistrate judge recommended that petitioner's collateral estoppel claims be rejected because petitioner had not shown that the jury in No. 91-6060 had necessarily determined that petitioner had completely ceased his drug trafficking after 1980. See 03-10694 Gov't C.A. Br. 17-18.

The district court adopted the magistrate judge's recommendation. See Pet. App. 55a-59a. The court no ted that petitioner's defense in No. 91-6060 had "three principal thrusts": (1) the charges were not supported by sufficient credible evidence; (2) petitioner had ceased any drug activity after 1980; and (3) if the drug distribu tion and importation activity occurred before April 10, 1986, the charges were barred by the five-year statute of limitations. Id. at 56a. Based on the record, the court agreed with the magistrate judge that it was "not clear which defense provided the basis for the acquittal." Id. at 56a-57a. Petitioner appealed, but the court of appeals refused to consider his evidentiary estoppel claims on interlocutory appeal. Id. at 52a-54a.

After a trial, the jury found petitioner guilty of con spiring to obstruct justice, as well some of the money laundering and obstruction charges. With respect to the money laundering charges, the jury found petitioner guilty on the conspiracy count (Count 2) and on eight substantive counts involving financial transactions that occurred in October and December 1998 (Counts 34-41). See Verdict Form 2-3; Fifth Supeseding Indictment 36- 37. The jury acquitted petitioner on the other 25 sub stantive counts (Counts 11-33, 42-43). Verdict Form 1-3. The jury also returned a special verdict finding that $15 million and certain real property were subject to forfei ture. Special Jury Verdict on Forfeiture 1.

At sentencing, the district court found that peti tioner's Sentencing Guidelines range was life imprison ment, based on a total offense level of 43 and a criminal history category of V. Presentencing Report para. 274 (PSR). In calculating the offense level for the money laundering offenses, the court applied an 11-level en hancement under Sentencing Guidelines § 2S1.1(b)(2)(L) (1998) after finding that the value of the laundered funds exceeded $35 million. PSR para. 182. The court based that valuation on the laundered funds involved in the money laundering counts on which petitioner was acquit ted as well as those counts on which he was convicted. The court rejected petitioner's argument that the spe cial forfeiture verdict limited the valuation of the laun dered funds to $15 million, which would have reduced his total offense level to 41. See 03-10694 Gov't C.A. Br. 57- 59.

The district court imposed consecutive sentences totaling 205 years of imprisonment, to be followed by a three-year term of supervised release. See 03-10694 Gov't C.A. Br. 2. The district stated that, if its Guide lines calculations were erroneous, it would nonetheless upwardly depart from the guideline range under Guide lines § 5K2.0 to impose the same sentence because of "the anomaly created by the obstruction in case 91- 6060." 03-10694 Gov't C.A. Br. 63. The court stated that "the bribery of jurors, the bribery of witnesses, so goes to the heart of our criminal justice system * * * that the egregious nature of the offense here could only be recognized by an upward departure." Pet. App. 46a (in ternal quotation marks omitted).

3. The court of appeals affirmed in part, reversed in part, vacated in part, and remanded. Pet. App. 17a-51a. The court affirmed petitioner's convictions on the money laundering counts. Without addressing the govern ment's argument that petitioner's corruption of the jury in No. 91-6060 extinguished his collateral estoppel claim, see 03-10694 Gov't C.A. Br. 18-21, the court rejected peti tioner's argument that collateral estoppel barred those convictions, see Pet. App. 19a-24a. The court acknow ledged (id. at 20a-21a), that the government had intro duced evidence of criminal activity for which petitioner had been acquitted in the earlier case in order to show that the money petitioner was accused of laundering was the proceeds of "specified unlawful activity," an essen tial element of the money laundering offense, see 18 U.S.C. 1956(a)(1)(B)(i). The court then noted that "[c]ol lateral estoppel 'bars a subsequent prosecution only where a fact or issue necessarily determined in the de fendant's favor in the former trial is an essential ele ment of conviction at the second trial.'" Pet. App. 21a- 22a (quoting United States v. Brown, 983 F.2d 201, 202 (11th Cir. 1993)). To apply the collateral estoppel doc trine, the court said, requires a two-step analysis: first, a court must determine whether "the jury's verdict of acquittal was based upon reasonable doubt about a sin gle element of the crime which the court can identify"; and, second, the court must determine "whether that element is also an essential element of the crime for which the defendant was convicted in the second trial." Id. at 22a (quoting Brown, 983 F.2d at 202).

The court of appeals assumed without deciding that petitioner was correct that the basis for his 1996 acquit tal was his cessation of all drug trafficking activity in May 1980, and that the first step of the collateral es toppel test was thus satisfied. See Pet. App. 22a-23a. The court found, however, that petitioner had not satis fied the second step because he had not shown that the elements of the drug offenses of which he was acquitted in the earlier trial were essential elements of the money laundering offenses of which he was convicted in this case. Id. at 23a-24a. The court reasoned that petition er's personal involvement in the criminal activity at is sue in the earlier case was not an element of the money laundering offenses of which he was convicted in this case. Ibid. The government, the court said, had to prove that petitioner had, with the requisite knowledge and intent, conducted a financial transaction involving the proceeds of some felony drug offenses; it did not have to show that petitioner had committed those felony drug offenses. Ibid. The court observed that "[a]s far as the money laundering statute is concerned, launder ing someone else's illegal proceeds is just as bad as laun dering your own-there is no help-thy-neighbor excep tion to § 1956(a)(1)(B)(i)." Id. at 24a.3

The court of appeals reversed petitioner's conviction on Count 8 for obstruction of justice through bribery in No. 91-6060. The court concluded that the conviction rested, at least in part, on inadmissible hearsay state ments admitting the acceptance of the bribe made by the bribed jury foreman, Miguel Moya, to an undercover FBI agent two and one-half years after the trial in No. 91-6060. Pet. App. 30a-36a. The court found that the error was not harmless. Id. at 36a-38a.

As a result of the reversal of that conviction, the court of appeals remanded for resentencing. The court rejected, however, petitioner's claims that the district court had otherwise erred at sentencing. Pet. App. 44a- 51a. The court of appeals found it unnecessary to con sider the merits of petitioner's contention that the dis trict court had erred in enhancing his sentence based on its own determination that the amount of the money he laundered was at least $35 million. Id. at 44a-48a. The court held that, even if the district court had erred in not using the $15 million figure reflected in the jury's special forfeiture verdict, the error was harmless be cause the district court had stated its intention to depart upward to a life sentence in the event it was found to have incorrectly calculated the amount of laundered funds. Id. at 47a-48a.

The court of appeals noted that the district court had concluded that an upward departure was warranted be cause petitioner, "through his illegal conduct," had "es caped the punishment he deserved for the criminal con duct he was tried for in his 1996 trial." Pet. App. 46a. The court of appeals acknolwedged that it had over turned petitioner's conviction for obstructing justice by bribing the earlier jury because that conviction had rested at least in part on inadmissible hearsay evidence of a bribed juror. But the court held that that reversal did not affect the validity of the district court's reliance on the bribery at sentencing, because it is "well-estab lished that, in sentencing, a district court can consider hearsay * * * so long as there are sufficient indicia of reliability" and "[t]he tape-recorded statements of the juror to the undercover agent clearly have sufficient indicia of reliability." Id. at 47a n.8. The court of ap peals also concluded that the district court had not abused its discretion in upwardly departing. See id. at 47a-48a.

The court of appeals ordered that the case be re manded, so that the government could decide whether to retry petitioner on the charge of obstructing justice by bribing jurors. Pet. App. 51a. The court noted that, if the government did not retry petitioner on that charge, or if petitioner was acquitted after a retrial, the district court could, at its discretion, "either reimpose [peti tioner's] sentence but with a reduction of 120 months as a result of there being no conviction [on the reversed count], or * * * resentence [petitioner] on all the other counts for which he remain[ed] convicted." Ibid.

Petitioner filed a petition for a writ of certiorari, which this Court denied. 548 U.S. 903 (2006) (No. 05-952).

4. On remand, the government decided not to retry petitioner on the reversed count. At resentencing, the district court observed that "none of the facts ha[d] changed," and again determined that petitioner's advi sory Guidelines range was life imprisonment, based on a total offense level of 43 and a criminal history category of V. 11/29/06 Tr. 57; see id. at 17. Consistent with United States v. Booker, 543 U.S. 220 (2005), the district court expressly considered the factors under 18 U.S.C. 3553(a) before imposing sentence, 11/29/06 Tr. 57-63, and it sentenced petitioner to a total term of 195 years of imprisonment, to be followed by a three-year term of supervised release. Id. at 62-64.

5. The court of appeals affirmed. Pet. App. 1a-16a. The court rejected petitioner's claim that the district court violated his Fifth and Sixth Amendment rights by enhancing his sentence based on acquitted, unproven, or uncharged conduct underlying the drug offenses charged in No. 91-6060, the obstruction of justice through jury bribery charged in the reversed Count 8, or its own determination that the value of the laundered funds exceeded $35 million. Id. at 2a n.1; see Pet. 31 n.13; 06-16473 Pet. C.A. Br. 55-58.4

ARGUMENT

1. Petitioner contends (Pet. 11-26) that the colla teral estoppel doctrine of Ashe v. Swenson, 397 U.S. 436 (1970), mandates reversal of his money laundering convictions. That claim does not merit further review.

Under the collateral estoppel doctrine that is applied in criminal cases, a jury's acquittal of a defendant on one charge precludes the government from proceeding against him later on a second charge only if the first jury necessarily found a fact in the defendant's favor that is essential to the second charge (i.e., a fact that the government must prove beyond a reasonable doubt). See Ashe, 397 U.S. at 443-445; Dowling v. United States, 493 U.S. 342, 347-348, 350-352 (1990). If the prior "ac quittal did not determine an ultimate issue in the [sec ond] case," there is no bar. Id. at 348; cf. Yates v. United States, 354 U.S. 298, 338 (1957) ("The normal rule is that a prior judgment need be given no conclusive effect at all unless it establishes one of the ultimate facts in issue in the subsequent proceeding."). Facts that are merely of evidentiary significance in the second case, but that the jury need not find beyond a reasonable doubt in order to convict, may be proved to the second jury, even if the jury in the prior case found that the government had failed to establish them beyond a rea sonable doubt. See Dowling, 493 U.S. at 348-349.

Under the money laundering statute, the govern ment must show that the defendant, "knowing that the property involved * * * represents the proceeds of some form of unlawful activity," conducted a financial transaction "which in fact involve[d] the proceeds of specified unlawful activity," a term that includes drug trafficking. 18 U.S.C. 1956(a)(1). As petitioner acknowl edges (Pet. 15), the government does not have to prove the particular drug transaction whose proceeds were laundered or the defendant's involvement in that trans action; it need only show that the funds were proceeds of some drug transaction. See, e.g., United States v. Phillips, 219 F.3d 404, 415-416 (5th Cir. 2000); United States v. Gabel, 85 F.3d 1217, 1224 (7th Cir. 1996).

Petitioner contends (Pet. 14) that the "unlawful activ ity" whose proceeds were the subject of the money laun dering counts in this case was, in fact, the same drug transactions that he claims the jury's 1996 acquittal es tablishes that he did not commit. Petitioner argues (Pet. 9-10, 13-17) that the court of appeals erred in basing its collateral estoppel analysis on what the government was theoretically required to prove on the money laundering counts, rather than asking whether the government in fact met its burden by proving facts already decided against it by the 1996 jury.

a. It is far from clear that the Eleventh Circuit has adopted the view, attributed to it by petitioner, that the government may "prove a crime using allegations a jury previously rejected, so long as it hypothetically could prove the charge with different evidence." Pet. 25. Peti tioner focuses on a few sentences in the court's opinion that in his view suggest the "hypothetical facts" position. Pet. 14 (citing Pet. App. 23a-24a). The court of appeals, however, nowhere stated a rule that the application of collateral estoppel turns on hypothetical facts that the government in theory could have attempted to prove, ra ther than the actual facts presented to the jury. To the contrary, the court stated that petitioner's collateral estoppel claim "fail[ed] because [petitioner's] personal involvement in, or guilt of, the criminal activity charged in the earlier case [was] not an element of the money laundering charge he was convicted of in this case." Pet. App. 23a. In other words, the court may have viewed this case as one in which the prior acquittal did not "de termine an ultimate issue in the present case," Dowling, 493 U.S. at 348, but instead was relevant to what was a mere evidentiary fact in the present case-i.e., who was involved in the prior drug activity. Under that view, the court's ruling would not rest, as petitioner contends (Pet. 14, 19), on wholly theoretical speculation that peti tioner could have laundered the proceeds of someone else's unlawful activity.

In addition, the court of appeals' decision in this case quoted and cited two of its prior decisions-both written by Judge Carnes, who wrote the opinion for the court in this case as well-for the proposition that, for collateral estoppel to apply, "[t]here * * * has to be such factual identity of the issues that [t]he subsequent verdict of conviction [is] rationally inconsistent with the prior ver dict of acquittal." Pet. App. 22a (internal quotation marks omitted; emphasis added) (citing United States v. Brown, 983 F.2d 201, 202 (11th Cir. 1993), and United States v. Garcia, 78 F.3d 1517, 1521 (11th Cir. 1996)). In Brown and Garcia, the Eleventh Circuit made clear that application of the collateral estoppel doctrine depends on whether the actual facts that the jury must find in order to convict the defendant at the second trial were found adversely to the government at the first trial. As the court explained in Brown, "identity of overlapping elements required for collateral estoppel must extend beyond the legal definition of the elements" and "[t]here must also be a factual identity of issues to such an ex tent that a jury rationally could not have a reasonable doubt about * * * [the element] involved in the first trial without also having a reasonable doubt about * * * [the element] involved in the second trial." 983 F.2d at 204 (emphases added); see ibid. ("The subse quent verdict of conviction must be rationally inconsis tent with the prior verdict of acquittal."). The court in Brown ultimately concluded that collateral estoppel did not apply after conducting a detailed analysis of the ac tual facts that the government proved to support the conviction in the second case, see id. at 204-205,5 while the court in Garcia reached the contrary conclusion, see Garcia, 78 F.3d at 1521-1522.6 Both cases, however, demonstrate that the law in the Eleventh Circuit is that a court applying the collateral estoppel doctrine must look beyond the abstract definitions of the elements to be proved and consider the actual facts that, if found by the jury, would preclude a conviction.

The court of appeals in this case relied on-and cer tainly did not purport to disagree with-Brown and Garcia. And any tensions within the Eleventh Circuit's decisions in this area would not warrant further review by this Court. See Wisniewski v. United States, 353 U.S. 901, 902 (1957) (per curiam).

b. In any event, this case would not be a suitable vehicle for considering petitioner's collateral estoppel claim because that claim also fails for two other, and independent, reasons.

First, petitioner's collateral estoppel claim rests on the premise that "the basis of his 1996 acquittal was that he had ceased all drug trafficking activities in May 1980," on the theory that this "was the only defense he put forward to the crimes alleged in his 1996 trial." Pet. App. 22a-23a. As the district court explained, however, petitioner's acquittal on the 1996 charges could have rested on an alternative, statute-of-limitations defense, under which petitioner could not have been found guilty if his "narcotics importation or distribution activities oc curred solely before April 10, 1986." Id. at 56a. Thus, "assuming the acquittal rested on the statute of limita tions defense, * * * such finding would not preclude the finding that [petitioner] derived proceeds from [his] earlier trafficking activities" and that he engaged in the post-1986 money laundering transactions charged in this case using the proceeds of pre-1986 drug transactions. Id. at 57a.7

The district court determined that "it [was] not clear which defense provided the basis for the acquittal." Pet. App. 56a-57a. Accordingly, the district court found that petitioner had not established the predicate for his col lateral estoppel claim: "that the cessation of [petition er's] drug trafficking activities after 1980 was the sole rational basis for [his] acquittal" in 1996. Id. at 57a.8 That ruling was correct, and the court of appeals did not disagree with it, but simply "assume[d] without decid ing" that petitioner's prior acquittal did establish that he had ceased drug trafficking after 1980. Id. at 23a.

Second, the 1996 verdict should not be given collat eral estoppel effect in any event, because it was the re sult of a process that has been determined to have been corrupted. The collateral estoppel doctrine rests on a determination of what "a rational jury" found. Ashe, 397 U.S. at 444; see United States v. Powell, 469 U.S. 57, 68 (1984) (collateral estoppel rests on "the assumption that the jury acted rationally"). Here, petitioner was con victed of conspiring to obstruct justice and obstructing justice through juror bribery in the 1996 case, which including paying the jury foreperson at least $300,000. See Pet. App. 30a n.4. Although the court of appeals reversed that conviction on the ground that the hearsay statements of the bribed foreperson were mistakenly admitted in evidence, the trial court independently found that petitioner had in fact bribed the jury fore person when it adopted the relevant portions of the pre sentence report. See PSR paras. 103-109; 1/16/03 Tr. 378;9 see also Pet. App. 46a-47a & n.8 (noting district court properly relied on petitioner's bribery of prior jury to support upward departure). Moreover, the fore person and two other jurors were themselves convicted in separate cases of obstruction, conspiracy, and bribery offenses in connection with the 1996 trial. See note 2, supra. Accordingly, even taking into account the rever sal of petitioner's conviction of obstruction of justice through bribery of the 1996 jury, it has been established that petitioner corrupted the jury in the 1996 case, and it has been proved beyond a reasonable doubt that, re gardless of who did it, that jury was in fact corrupted.

In these circumstances, where there is clear evidence that the process by which the jury reached its verdict was tainted, the verdict in the 1996 case should not be given collateral estoppel effect. In Aleman v. Honorable Judges of the Circuit Court, 138 F.3d 302, 308 (7th Cir.), cert. denied, 525 U.S. 868 (1998), the defendant bribed a judge at his first murder trial and then claimed that double jeopardy principles barred a second prosecution on the same charge. The state court ruled that, where a defendant has bribed a judge in a prior case, he was never truly in jeopardy in that proceeding such that he can assert an acquittal in that case as a bar to further prosecution. On the defendant's habeas petition, the Seventh Circuit affirmed that ruling as not "contrary to, or an unreasonable application" of this Court's prece dent. Ibid. As the court explained, "[t]o allow [the de fendant] to profit from his bribery and escape all punish ment for the * * * murder would be a perversion of justice, as well as establish an unseemly and danger ous incentive for criminal defendants." Id. at 309. The same principle applies with even greater force here, given that the collateral estoppel doctrine "is pre mised upon an underlying confidence that the result achieved in the initial litigation was substantially cor rect," Standefer v. United States, 447 U.S. 10, 23 n.18 (1980), and no such confidence can attach to a verdict secured by bribery.

c. The question presented by petitioner also does not warrant further review because the collateral estop pel principle on which he relies rarely arises and is even more rarely litigated in federal court. Petitioner cites (Pet. 19-23) seven decisions of five courts of appeals that in his view conflict with the court of appeals' decision in this case and establish that collateral estoppel applies to ultimate facts actually litigated in the second trial. The oldest of those decisions date from 1979, and all date from 1997 or earlier. Similarly, of the six decisions of state courts of last resort cited by petitioner (Pet. 23- 26), all but one date from the period from 1978 to 1992. Petitioner has failed to show that the question he pres ents arises with any frequency, as revealed by the age of all but one of the cases he cites. Further review of peti tioner's collateral estoppel claim is therefore unwar ranted for that reason as well.10

2. Petitioner contends (Pet. 26-34) that the district court erred in relying in part on conduct for which he was acquitted in No. 91-6060 in imposing sentence in this case. Specifically, petitioner asserts that consider ation of acquitted conduct at sentencing "violates (1) the Fifth and Sixth Amendments in general; (2) the Fifth and Sixth Amendments at least when the sentence would be substantively unreasonable but for the truth of the acquitted conduct; or (3) the requirement in United States v. Booker, 543 U.S. 220 (2005), that sentences be 'reasonable.'" Pet. 26. Those contentions do not warant further review.

a. The district court did not err in considering ac quitted conduct in imposing sentence. In United States v. Watts, 519 U.S. 148 (1997) (per curiam), this Court held that "a jury's verdict of acquittal does not prevent the sentencing court from considering conduct underly ing the acquitted charge, so long as that conduct has been proved by a preponderance of the evidence." Id. at 157.11 The Court noted that, "under the pre-Guidelines sentencing regime, it was 'well established that a sen tencing judge may take into account facts introduced at trial relating to other charges, even ones of which the defendant has been acquitted,'" id. at 152 (citation omit ted), and that "[t]he Guidelines did not alter this aspect of the sentencing court's discretion," ibid. Although Watts specifically addressed a challenge to consider ation of acquitted conduct based on double jeopardy principles, its clear import is that sentencing courts may take acquitted conduct into account at sentencing with out offending the Constitution. See id. at 157. That principle pre-dated the Sentencing Guidelines, see id. at 152, and it fully applies to the advisory Guidelines re gime put into place by Booker.

This Court's decisions in Booker and subsequent cas es confirm that there is no constitutional infirmity in a judge basing the defendant's sentence, within the statu tory maximum, on conduct that was not found by the jury. That is true whether the conduct was not charged at all or whether it formed the basis of charges on which the jury did not find the defendant guilty. As the Court explained in Booker:

We have never doubted the authority of a judge to exercise broad discretion in imposing a sentence within a statutory range. * * * For when a trial judge exercises his discretion to select a specific sen tence within a defined range, the defendant has no right to a jury determination of the facts that the judge deems relevant.

543 U.S. at 233 (citations omitted). This Court reaf firmed in Cunningham v. California, 549 U.S. 270 (2007), that "there was no disagreement among the Jus tices" that judicial fact-finding under the Sentencing Guidelines "would not implicate the Sixth Amendment" if the Guidelines were advisory. Id. at 285. And, in Rita v. United States, 127 S. Ct. 2456 (2007), the Court again confirmed that its "Sixth Amendment cases do not auto matically forbid a sentencing court to take account of factual matters not determined by a jury and to increase the sentence in consequence." Id. at 2465-2466; see id. at 2467 (noting Booker's recognition that fact-finding by federal judges in application of the Guidelines would not implicate the constitutional issues confronted in that case if the Guidelines were not "binding") (quoting Booker, 543 U.S. at 233).

In discussing the type of information that the sen tencing court could consider under an advisory Guide lines regime, Booker made no distinction between ac quitted conduct and other relevant conduct. See, e.g., 543 U.S. at 252 (emphasizing the need to consider all relevant conduct to achieve "the sentencing statute's basic aim of ensuring similar sentences for those who have committed similar crimes in similar ways"). To the contrary, after emphasizing the judge's "broad discre tion in imposing a sentence within a statutory range," id. at 233, Booker cited Watts for the proposition that "a sentencing judge could rely for sentencing purposes upon a fact that a jury had found unproved (beyond a reasonable doubt)," id. at 251. As the Court recognized in Watts, such consideration is not unfair to a defendant because "consideration of information about the defen dant's character and conduct at sentencing does not re sult in 'punishment' for any offense other the one of which the defendant was convicted." 519 U.S. at 155 (quoting Witte v. United States, 515 U.S. 389, 401 (1995)). The rationale of Watts-that an acquittal estab lishes only that certain facts were not proved beyond a reasonable doubt, while facts may be considered at sen tencing without satisfying that standard of proof-re mains fully valid after Booker.

Consistent with those principles, the district court was allowed to find, in calculating petitioner's offense level under Guidelines § 2S1.1(b)(2)(L) (1998), that the value of the laundered funds exceeded $35 million. PSR para. 182. The district court was also allowed to con sider, in applying the factors in 18 U.S.C. 3553(a), peti tioner's long history of involvement in drug trafficking and his role in bribing jurors in No. 91-6060. 11/29/06 Tr. 60 (finding bribery of jury was "the most egregious evidence of obstruction of justice" in court's experience); id. at 61 (noting petitioner's drug-trafficking history "goes back to the '70s").12

Petitioner's alternate contention (Pet. 34) that his sentence violates the remedial portion of Booker that requires a sentence to be "reasonable" under the stan dard set forth in 18 U.S.C. 3553(a) is likewise without merit. Contrary to petitioner's contention (Pet. 34) that Congress's use of the word "offense" at various points in Section 3553(a) restricts the district court's consider ation to "the offense of conviction," the Court's remedial opinion in Booker makes clear that sentencing courts may continue, consistent with prior practice, to look to a defendant's "real conduct" when imposing sentence. 543 U.S. at 223 (discussing 18 U.S.C. 3661, which pro vides that "[n]o limitation shall be placed on the infor mation concerning the background, character, and con duct" of a defendant that a sentencing court "may re ceive and consider for the purpose of imposing an appro priate sentence").

b. Further review of petitioner's acquitted conduct claim would be particularly unwarranted because, as petitioner acknowledges (Pet. 31-32), there is no conflict among the courts of appeals on this issue.13 Since Booker, every court of appeals with criminal jurisdiction has held that a district court may consider acquitted conduct at sentencing.14 This Court recently denied a petition for a writ of certiorari raising that issue, see Toepfer v. United States, 129 S. Ct. 1000 (2009) (No. 08- 469), just as it has repeatedly denied other similar peti tions for writs of certiorari,15 including those denied af ter the Court's decisions in Rita, supra, and Gall v. Uni ted States, 128 S. Ct. 586 (2007).16 The Court has like wise denied numerous petitions for writs of certiorari that raised claims similar to petitioner's alternate claim (see Pet. 33-34) that his Sixth Amendment rights were violated because his sentence would be unreasonable absent the district court's reliance on the acquitted, un proven and uncharged conduct.17 There is no reason for a different result in this case.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfullysubmitted.

ELENA KAGAN
Solicitor General
RITA M. GLAVIN
Acting Assistant Attorney
General
JOSEPH C. WYDERKO
Attorney

MARCH 2009

1 The jury in this case acquitted petitioner of the witness tampering through murder offenses charged in Counts 3-5, but convicted him of the obstruction conspiracy charged in Count 1, which incorporated the same allegations. Lezcano was convicted separately. See United States v. Ramirez, 324 F.3d 1225 (11th Cir.), cert. denied, 540 U.S. 881, and 540 U.S. 928 (2003); see generally 03-10694 Gov't C.A. Br. 6 n.1.

2 Moya was ultimately convicted of accepting a bribe, as well as con spiracy to commit that offense, obstruction of justice, money laundering and conspiracy to commit that offense, witness tampering and conspir acy to commit that offense, and making a false statement in a tax re turn. He was sentenced to 210 months of imprisonment. See Judgment at 3, United States v. Moya, No. 1:98-CR-00626-001 (S.D. Fla. Mar. 10, 2000) (Docket entry No. 403), aff'd, 252 F.3d 440 (11th Cir. 2001) (Table). Juror Gloria Alba pleaded guilty to obstruction of justice by accepting a bribe, and juror Maria Penalver pleaded guilty to conspir acy to commit that offense. Judgment at 1, United States v. Alba, No. 03-CR-20700-002 (S.D. Fla. Jan. 15, 2004) (Docket entry No. 101); Judg ment at 1, United States v. Penalver, No. 03-CR-20700-004 (S.D. Fla. Jan. 15, 2004) (Docket entry No. 99). They were each sentenced to five years of imprisonment.

3 The court of appeals also rejected petitioner's challenge to the suf ficiency of the evidence supporting his money laundering convictions. See Pet. App. 24a-30a.

4 The court of appeals also rejected petitioner's claims that the dis trict court incorrectly calculated the advisory Guidelines range, Pet. App. 5a-8a; that his 195-year sentence was procedurally and substan tively unreasonable, id. at 8a-12a; and that the district court violated his Fifth Amendment privilege against self-incrimination, id. at 12a- 16a.

5 The court in Brown examined the basis for conviction at the second trial, 983 F.2d at 204-205, before concluding that collateral estoppel did not apply because "there were differences between the two financing schemes" such that the earlier acquittal did not preclude conviction in the second trial, id. at 205. See id. at 204 (noting that in Ashe, collateral estoppel applied "not merely because identity was the only element at issue" in both the first and second trials, but also "because the six hap less poker players were robbed by the same robbers at the same time, and there was no rational way to reconcile the second jury's finding that there was no reasonable doubt [the defendant] was one of the robbers with the first jury's finding that there was a reasonable doubt whether he was").

6 The defendant in Garcia was convicted of traveling in interstate commerce with intent to facilitate importation of cocaine following his earlier acquittal on conspiracy and substantive cocaine charges. The court found that the acquittal on a motion under Federal Rule of Crim inal Procedure 29 established "that [the defendant] was not knowingly involved in the charged [cocaine] conspiracy at any time during the specified period," 78 F.3d at 1521, while the later conviction, as the case was presented to the jury, rested on proof that he was. See id. at 1522 ("To accept the government's attempted reconciliation of the results of the two trials, we would have to believe it logical for [the defendant] to have travelled with the intent to promote the conspiracy, and then a few days later to have had no knowledge of that same conspiracy.").

7 Petitioner himself argued in the 1996 prosecution that his consider able, unexplained wealth was the result of drug trafficking in the early 1980's and that the jury need not concern itself with his financial trans actions. 03-10694 Gov't C.A. Br. 24. Accordingly, the convictions for money laundering in this case are consistent with petitioner's own de fense in the 1996 prosecution.

8 The court also discussed a third possible basis for the 1996 acquit tal, under which there was a "lack of sufficient credible evidence to sup port each element of the charges in the indictment beyond a reasonable doubt." Pet. App. 56a. Insofar as the jury acquitted petitioner of the substantive counts in the 1991 indictment, all of which involved post- 1986 activity, based on that defense, the acquittal would establish only that the government had not proved petitioner's involvement in those particular drug transactions. Such an acquittal would not bar the in stant money laundering counts, because the government did not have- and did not in fact-tie the money laundering counts in this case to any particular drug transactions. Accordingly, that ground for acquittal too would not have a collateral estoppel effect on the money laundering counts on which petitioner was convicted in this case.

9 The district court found that the allegations that petitioner bribed the foreperson were "amply supported by the record beyond a reason able doubt," before noting that "[f]or the purposes of this, I need simply to say by a preponderance of the evidence." 1/16/03 Tr. 378.

10 Petitioner suggests (Pet. 24 & n.10) that this case should be held if the Court grants certiorari in Ohio v. Wade, No. 08-585. The Court de nied certiorari in Wade on January 12, 2009. See 129 S. Ct. 921.

There is likewise no need to hold this petition for a writ of certiorari pending Yeager v. United States, cert. granted, No. 08-67 (Nov. 14, 2008) (to be argued Mar. 23, 2009), which involves the very different is sue of whether a jury's verdict of acquittal on some counts may collater ally estop the government from retrying the defendant on other counts on which the jury was unable to reach a verdict at the same trial.

11 Petitioner's alternate assertion (Pet. 28) that a sentencing court may not "consider[] alleged conduct the jury refused to find" unless such conduct is "proved * * * beyond a reasonable doubt" is thus squarely inconsistent with Watts, and petitioner does not cite any court of appeals decison adopting such a view.

12 Petitioner lumps together the "unproven facts" in his challenge to his sentence. See Pet. 31 n.13. As discussed above, however, the only "unproven fact[]" relied upon by the district court in the calculation of the Guidelines range was the valuation of the laundered funds. The dis trict court considered the other two "unproven facts" only as reasons not to vary below the Guidelines range of life imprisonment.

13 Petitioner's reliance (Pet. 26-30) on various district court decisions and separate concurring and dissenting opinions in the courts of ap peals does not warrant further review.

14 See United States v. White, 551 F.3d 381, 386 (6th Cir. 2008) (en banc); United States v. Jimenez, 513 F.3d 62, 88 (3d Cir.), cert. denied, 128 S. Ct. 2460 (2008); United States v. Ashworth, 247 Fed. Appx. 409, 409-411 (4th Cir. 2007), cert. denied, 128 S. Ct. 1738 (2008); United States v. Hurn, 496 F.3d 784, 788 (7th Cir. 2007), cert. denied, 128 S. Ct. 1737 (2008); United States v. Mercado, 474 F.3d 654, 656-658 (9th Cir. 2007), cert. denied, 128 S. Ct. 1736 (2008); United States v. Gobbi, 471 F.3d 302, 314 (1st Cir. 2006); United States v. Farias, 469 F.3d 393, 399 & n.17 (5th Cir. 2006), cert. denied, 127 S. Ct. 1502 (2007); United States v. Dorcely, 454 F.3d 366, 371 (D.C. Cir.), cert. denied, 127 S. Ct. 691 (2006); United States v. High Elk, 442 F.3d 622, 626 (8th Cir. 2006); United States v. Vaughn, 430 F.3d 518, 525-527 (2d Cir. 2005), cert. denied, 547 U.S. 1060 (2006); United States v. Magallanez, 408 F.3d 672, 683-685 (10th Cir.), cert. denied, 546 U.S. 955 (2005); United States v. Duncan, 400 F.3d 1297, 1304-1305 (11th Cir.), cert. denied, 546 U.S. 940 (2005).

15 See, e.g., Edwards v. United States, 127 S. Ct. 1815 (2007) (No. 06-8430); Dorcely v. United States, 127 S. Ct. 691 (2006) (No. 06-547); Armstrong v. United States, 549 U.S. 819 (2006) (No. 05-1548); Lynch v. United States, 549 U.S. 836 (2006) (No. 05-10945).

16 See, e.g., Morris v. United States, 128 S. Ct. 2502 (2008) (No. 07-1094); Douglas v. United States, 128 S. Ct. 1875 (2008) (No. 07-8765); Hurn v. United States, 128 S. Ct. 1737 (2008) (No. 07-605); Mercado v. United States, 128 S. Ct. 1736 (2008) (No. 07-5810); Smith v. United States, 128 S. Ct. 1737 (2008) (No. 07-7432); Wemmering v. United States, 128 S. Ct. 1737 (2008) (No. 07-7739); Ashworth v. United States, 128 S. Ct. 1738 (2008) (No. 07-8076); Freeman v. United States, 128 S. Ct. 1750 (2008) (No. 07-9368).

17 See, e.g., Marlowe v. United States, 129 S. Ct. 450 (2008) (No. 07-1390); Bradford v. United States, 128 S. Ct. 1446 (2008) (No. 07- 7829); Alexander v. United States, 128 S. Ct. 1218 (2008) (No. 07-6606).

In addition, petitioner did not raise an "as-applied" Sixth Amendment claim until his reply brief in the court of appeals in his current appeal. See 06-16473 Pet. C.A. Br. 47-58; 06-16473 Pet. C.A. Rep. Br. 23-24. The Eleventh Circuit has a well-settled rule that a defendant may not raise an issue for the first time in a reply brief, see, e.g., United States v. Britt, 437 F.3d 1103, 1104 (2006), and, consistent with that practice, the court of appeals did not address petitioner's as-applied Sixth Amendment claim. This Court's "traditional rule * * * precludes a grant of certiorari * * * when the question presented was not pressed or passed upon below." United States v. Williams, 504 U.S. 36, 41 (1992); see, e.g., Zobrest v. Catalina Foothills Sch. Dist., 509 U.S. 1, 8 (1993); Adickes v. S.H. Kress & Co., 398 U.S. 144, 147 n.2 (1970).