US v. Humberto Rojas-Diaz

Filing

UNPUBLISHED AUTHORED OPINION filed. Originating case number: 7:12-cr-00088-BO-2. Copies to all parties and the district court. [999788660]. [14-4441]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 14-4441

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
HUMBERTO ROJAS-DIAZ, a/k/a Negro, a/k/a Bruce, a/k/a Lopez,
a/k/a/ Jose,
Defendant - Appellant.

Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington.
Terrence W. Boyle,
District Judge. (7:12-cr-00088-BO-2)

Argued:

December 10, 2015

Before GREGORY
Circuit Judge.

and

SHEDD,

Decided:

Circuit

Judges,

and

April 5, 2016

DAVIS,

Senior

Affirmed in part, reversed in part, and vacated and remanded
with instructions by unpublished opinion.
Senior Judge Davis
wrote the opinion, in which Judge Gregory joined.
Judge Shedd
wrote a separate opinion concurring in the judgment.

ARGUED: Michael W. Patrick, LAW OFFICE OF MICHAEL W. PATRICK,
Chapel Hill, North Carolina, for Appellant. Kristine L. Fritz,
OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina,
for Appellee.
ON BRIEF: Thomas G. Walker, United States
Attorney, Jennifer P. May-Parker, Assistant United States

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Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North
Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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DAVIS, Senior Circuit Judge:
A

jury

convicted

Appellant

Humberto

Rojas-Diaz

of

conspiring to traffic illegal drugs, conspiring to commit money
laundering,

substantive

distribution.

money

laundering,

and

attempted

drug

He now appeals, challenging the district court’s

denial of his motion for judgment of acquittal, contending that
his convictions for money laundering conspiracy and substantive
money laundering are not supported by sufficient evidence.

He

also argues that the district court committed multiple errors in
its jury instructions.
of

error,

we

agree

Having fully considered his assertions
with

Rojas-Diaz

that

the

evidence

was

insufficient to prove his knowing participation in the charged
money laundering conspiracy.
no error.

In all other respects, we discern

Accordingly, we affirm in part, reverse in part, and

remand for the entry of a judgment of acquittal as to the charge
of money laundering conspiracy.
I.
A.
This

case

arises

from

a

Drug

Enforcement

Administration

(“DEA”) investigation of Rojas-Diaz’s drug trafficking activity
in late 2010.

During the investigation, Special Agent Joseph E.

Carucci identified James Edward Cox as a courier for Rojas-Diaz,
whom Cox knew as “Bruce.”

On September 8, 2010, Special Agent

Carucci surveilled Cox as he travelled to McAllen, Texas, to
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deliver a boat that had been modified to hold large amounts of
marijuana.

Once in Texas, Cox delivered the boat to Manuel

Tabares-Castillo (“Castillo”).

Castillo then gave Cox a cooler

lined with ten kilograms of cocaine.

DEA agents pulled over Cox

in Georgia on September 14, 2010, as he returned from Texas.
They searched Cox’s vehicle, recovered the cooler, and arrested
Cox after discovering the cocaine.
A few weeks after his arrest, Cox agreed to cooperate with
the

DEA

Special

as

a

Agent

capacity.

confidential
Carucci,

who

informant,
would

be

working

acting

in

closely
an

with

undercover

The duo made two trips to Texas as part of the Rojas-

Diaz investigation.

For the first trip, Rojas-Diaz had asked

Cox to retrieve the boat and leave a Fifth Avenue trailer, a
type

of

recreational

vehicle,

modified to carry marijuana.

with

Castillo

so

it

could

be

Cox, at Special Agent Carucci’s

direction, agreed to make the delivery.

Rojas-Diaz then gave

Cox $50,000 in cash to pay Castillo for the drugs in the boat.
As planned, Cox and Special Agent Carucci left for Texas
with the Fifth Avenue trailer on October 30, 2010, tailed by a
surveillance team of DEA agents.

They stopped briefly along the

way so Cox could meet an unidentified Castillo associate who
gave Cox a cooler that had been modified to conceal the $50,000
in its lining.

Two days later, Cox and Special Agent Carucci

delivered the Fifth Avenue trailer to Castillo at Castillo’s
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house in Texas.

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In a hotel parking lot on November 2, 2010, Cox

gave Castillo the cooler lined with $50,000.

Cox and Special

Agent Carucci returned to North Carolina without the boat, but
they

had

observed

several

men

loading

it

with

marijuana

at

another location in Texas.
The second trip occurred about a week later.

On November

10, 2010, Rojas-Diaz gave Cox $19,010 to buy a Fleetwood trailer
so that it too could be modified and loaded with marijuana.

The

intention was to use the Fifth Avenue and Fleetwood trailers in
rotation to deliver drugs to North Carolina.

Cox purchased the

Fleetwood trailer as directed, then he and Special Agent Carucci
delivered it to Castillo in Texas.

While there, Cox and Special

Agent Carucci retrieved the boat and began towing it back to
North Carolina.

On November 14, 2010, they stopped in Houston,

Texas, where Special Agent Carucci confirmed the boat contained
marijuana by drilling a hole in its stern.
Because the DEA had planned to use the boat to make a
controlled delivery the following day, after which the recipient
of the boat would be arrested, Cox and Special Agent Carucci
carried out a plan to maintain their cover: Cox got approval
from Rojas-Diaz and Castillo to remove sixty pounds of marijuana
from the boat with the intention to report back later that he
and Special Agent Carucci had sold it.

5

With the plan underway,

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Cox and Special Agent Carucci hoped to avert any suspicion that
might arise from the anticipated arrests.
Cox and Special Agent Carucci left the boat and remaining
marijuana with an associate of Rojas-Diaz in Lumberton, North
Carolina.
that

Cox then called Rojas-Diaz and Castillo to confirm

the

boat

had

been

delivered.

Law

enforcement

officers

stayed behind and surveilled the boat, observing men unloading
marijuana from it.

As the officers moved in to seize the boat

and marijuana, the men fled.
On November 19, 2010, Cox, as planned, told Rojas-Diaz that
he

and

Special

marijuana.
and

Agent

Agent

Carucci

had

sold

their

share

of

the

To make it appear that the sale had occurred, Cox
Carucci

lined

a

cooler

with

$15,000

of

government

currency and, on November 20, 2010, delivered the cooler to an
associate

of

Castillo

in

South

Carolina.

Later,

in

January

2011, DEA agents found 1300 kilograms of marijuana hidden in the
Fifth Avenue trailer in Texas.

The Fleetwood trailer was never

recovered.
B.
On July 2, 2012, and March 21, 2013, respectively, a grand
jury

in

the

Eastern

District

of

North

Carolina

returned

an

indictment and a superseding indictment charging Rojas-Diaz and
two

codefendants

with

drug-trafficking-related

offenses.

On

April 17, 2013, the grand jury returned a twelve-count second
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superseding indictment against Rojas-Diaz and five codefendants,
Kelly Ray Chavis, James Howell Oxendine, David Prado, William
Gerardo Alvarado Parra, and Shane Lorenzo Stewart.
The

second

superseding

indictment

charged

Rojas-Diaz,

specifically, with conspiracy to distribute and to possess with
the intent to distribute five kilograms or more of cocaine and
1000 kilograms or more of marijuana in violation of 21 U.S.C.
§ 846; conspiracy to commit money laundering in violation of 18
U.S.C. § 1956(h); substantive money laundering in violation of
18 U.S.C. § 1956(a)(1)(A)(i); and attempted possession with the
intent to distribute 100 kilograms or more of marijuana, and
aiding and abetting, in violation of 21 U.S.C. § 846 and 18
U.S.C. § 2. *

Rojas-Diaz pled not guilty and proceeded to a four-

day jury trial.
At

trial,

government

Cox

and

witnesses

investigation.

Special
about

Agent
their

Carucci

testified

involvement

in

as
the

Castillo also testified as a government witness.

Castillo admitted that he had supervised the filling of the boat
with marijuana, and he acknowledged that he had worked closely
with Cox and that Cox had helped him transport drugs to North
*

The second superseding indictment also charged Rojas-Diaz
with attempted possession with the intent to distribute five
kilograms or more of cocaine, and aiding and abetting, in
violation of 21 U.S.C. § 846 and 18 U.S.C. § 2. That charge was
dismissed prior to trial.

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Carolina.

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But Castillo was adamant that he had never met or

spoken to Rojas-Diaz until he was asked to testify in this case.
All but one of the codefendants, David Prado, testified at
trial, describing their drug trafficking activities with RojasDiaz, whom they knew by different names.
Rojas-Diaz

as

“Bruce,”

testified

Kelly Chavis, who knew

that

he

had

been

buying

marijuana, and occasionally cocaine, from Rojas-Diaz since about
2010.

He and Rojas-Diaz were nearby when Cox and Special Agent

Carucci

delivered

the

boat

in

North

Carolina.

According

to

Chavis, Rojas-Diaz had positioned himself to watch the delivery,
so Rojas-Diaz saw the law enforcement officers seize the boat
and the marijuana it contained.
Shane Stewart mostly referred to Rojas-Diaz as “Buddy” and
had used Rojas-Diaz as a marijuana supplier.
that,

at

first,

Rojas-Diaz

had

given

him

Stewart testified
thirteen

marijuana, which Stewart sold by that evening.

pounds

of

Then, over a

two-week period, Rojas-Diaz started fronting Stewart up to fifty
pounds of marijuana at a time.

The most marijuana Rojas-Diaz

ever gave Stewart at one time was ninety pounds.
James

Oxendine

knew

Rojas-Diaz

as

“Jose.”

Stewart

had

introduced Oxendine to Rojas-Diaz, and by 2010, Oxendine was
using Rojas-Diaz as a marijuana supplier.

Rojas-Diaz fronted

Oxendine one to two pounds of marijuana five or six times a
year, totaling about twenty pounds of marijuana over the course
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of their association.

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Finally, William Parra, who knew Rojas-

Diaz as “Negro,” met Rojas-Diaz in 2011.

Parra testified that

he had sold Rojas-Diaz fifty pounds of marijuana for $40,000 on
two separate occasions.
After

the

conclusion

of

the

presentation

of

evidence,

Rojas-Diaz moved for judgment of acquittal on all counts under
Federal Rule of Criminal Procedure 29, which the district court
denied.

Thereafter, the district court, relying “substantially”

on the government’s proposed instructions, J.A. 526, instructed
the jury on the conspiracy charges without mentioning whether a
defendant could conspire with government agents.

Following an

objection by Rojas-Diaz, the district court added an instruction
that “[a] person can’t conspire with the government.”
During

the

money

laundering

instructions,

the

J.A. 590.

district

court

described the crime as making “dirty money” clean again and as
“hiding” money obtained through criminal activity.
577-78.

J.A. 575,

But the district court later instructed the jury that

the government had to prove “the defendant intended to promote
the carrying on of [an] unlawful activity.”
addition,

the

district

conspiracy[,] people can
the
a

objects
member

“willfully”

of

of
as

court
come

instructed

and

go

as

J.A. 587.
that,

long

as

In

“[i]n
they

a

know

the conspiracy and willfully agree to become

it.”
“an

J.A.
act

585.

[that]
9

The
is

district

committed

court

defined

voluntarily

and

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purposely

with

the

forbids.”

J.A. 582.

Finally,

as

instructions,

the

specific

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to

intent

the

district

to

do

attempted

court

something

drug

initially

the

law

distribution

referenced

“five

kilograms of cocaine,” J.A. 585, even though Rojas-Diaz had only
been charged with an offense involving 100 kilograms or more of
marijuana.

Rojas-Diaz

objected

to

the

instruction,

and

the

district court correctly named the drug, but not the quantity,
for the jury.
On January 19, 2014, the jury found Rojas-Diaz guilty of
all charges in the second superseding indictment.
jury

announced

the

verdict,

Rojas-Diaz

timely

After the
renewed

his

previous motion for judgment of acquittal on all counts under
Federal Rule of Criminal Procedure 29, which the district court
denied.
On May 30, 2014, the district court sentenced Rojas-Diaz to
360 months’ imprisonment for the drug trafficking conspiracy and
attempted drug trafficking convictions, followed by a lifetime
of supervised release.
substantive
imposed

a

money

For the money laundering conspiracy and

laundering

concurrent

convictions,

sentence

of

240

the

months’

followed by three years’ supervised release.
followed.

10

district

court

imprisonment

This timely appeal

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II.
A.
We review the denial of a motion for judgment of acquittal
de novo.

United States v. Osborne, 514 F.3d 377, 385 (4th Cir.

2008).

In doing so, we view the evidence in the light most

favorable
verdict

to

is

the

government

supported

by

to

determine

substantial

whether

evidence.

the
Id.

guilty
(citing

United States v. Burgos, 94 F.3d 849, 862 (4th Cir. 1996) (en
banc)).
finder

Substantial evidence is “evidence that a reasonable
of

fact

could

accept

as

adequate

and

sufficient

to

support a conclusion of a defendant’s guilt beyond a reasonable
doubt.”

Id. (quoting Burgos, 94 F.3d at 862).
B.

Rojas-Diaz argues that his conviction for money laundering
conspiracy should be vacated because the only other identified
participants
government

in

the

agents.

superseding

ostensible
His

indictment

money

contention

specifically

laundering
has

merit.

charged

scheme
The

were

second

Rojas-Diaz

with

conspiring to launder $19,010 between November 2 and 10, 2010,
in

promotion

of

illegal

drug

trafficking

in

violation

of

U.S.C. § 1956(h), as follows:
Beginning no later than on or about November 2,
2010, and continuing until at least on or about
November 10, 2010, in the Eastern District of North
Carolina and elsewhere, defendant HUMBERTO ROJAS-DIAZ
. . . did knowingly conspire with other persons known
11

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and unknown to the Grand Jury to commit an offense in
violation of Title 18, United States Code, Section
1956(a)(1)(A)(i), specifically, to conduct a financial
transaction affecting interstate and foreign commerce
which in fact involved the proceeds of specified
unlawful
activity,
that
is,
the
transfer
of
approximately $19,010 in United States currency to
another individual known to the Grand Jury, with the
intent to promote the carrying on of specified
unlawful activity, that is, illegal drug trafficking,
and knowing that the property involved in the
financial transaction represented the proceeds of some
form of unlawful activity.
J.A. 41-42.
To

prove

the

charged

conspiracy,

the

government

was

required to establish: “(1) an agreement [existing from on or
about November 2, 2010, until on or about November 10, 2010,] to
commit money laundering existed between one or more persons [to
“transfer

. . .

approximately

$19,010

in

United

States

currency”]; (2) the defendant knew that the money laundering
proceeds had been derived from an illegal activity; and (3) the
defendant

knowingly

conspiracy.”
Cir.

2008)

and

voluntarily

became

part

of

the

United States v. Singh, 518 F.3d 236, 248 (4th
(brackets

added)

(quoting

J.A.

41).

however, cannot conspire with a government agent.

A

person,

United States

v. Hackley, 662 F.3d 671, 679 (4th Cir. 2011) (citing United
States v. Lewis, 53 F.3d 29, 33 (4th Cir. 1995)).

The record

here demonstrates that the $19,010 transaction involved solely
Rojas-Diaz and government agents.

12

Thus, Rojas-Diaz’s conviction

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for money laundering conspiracy is not supported by sufficient
evidence and must be vacated.
As

described

above,

the

evidence

elicited

at

trial

established that Rojas-Diaz gave Cox $19,010 on November 10,
2010, to purchase the Fleetwood trailer so that it could be
modified to transport drugs.

Rojas-Diaz also intended the money

to cover various expenses incurred while towing the boat, by
then filled with marijuana, back to North Carolina.
Special Agent Carucci used the money as instructed.
confidential

informant,

and

Special

Agent

Cox and
But Cox, a

Carucci,

working

undercover for the DEA, were government agents at the time and
could not, as a matter of law, have conspired with Rojas-Diaz to
launder the money (or to commit any other criminal offense).
There is no evidence that any of the men gave any of the money
to another person, government agent or otherwise, who knowingly
participated in the scheme.
The government insists that a conspiracy to launder the
$19,010 existed between Rojas-Diaz and Castillo, who undoubtedly
was involved in the overall narcotics conspiracy and was not a
government agent (although he later pled guilty and testified at
trial

pursuant

to

a

plea

agreement).

Specifically,

the

government argues that Castillo had a longstanding arrangement
to

supply

Rojas-Diaz

with

marijuana

and

cocaine

through

a

delivery system that involved concealing drugs in modified boats
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and

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trailers.

In

the

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government’s

view,

necessary to advance that arrangement.

the

$19,010

was

While “[t]he existence

of a tacit or mutual understanding is sufficient to establish a
conspiratorial

agreement,”

United

States

v.

Kellam,

568

F.3d

125, 139 (4th Cir. 2009) (quoting United States v. Ellis, 121
F.3d 908, 922 (4th Cir. 1997)), there must be at least some
evidence

that

the

defendant

participated

in

the

charged

conspiracy, United States v. Collazo, 732 F.2d 1200, 1205 (4th
Cir. 1984) (citing United States v. Laughman, 618 F.2d 1067,
1075 (4th Cir. 1980)), here, the money laundering conspiracy,
not

merely

the

conspiracy.

related

but

legally

separate

narcotics

There simply is no such evidence in this record.

No evidence directly connects Castillo to the $19,010 or to
any explicit or implicit agreement as to the use of those funds.
There is no evidence that Rojas-Diaz and Castillo discussed the
$19,010 before or after Rojas-Diaz gave the money to Cox and
Special Agent Carucci.
and

Castillo

trailer

discussed

before

it

Nor is there evidence that Rojas-Diaz
purchasing

arrived

at

or

utilizing

Castillo’s

the

Fleetwood

house.

Nothing

demonstrates that Rojas-Diaz acted on anything more than his own
accord.
Nor does the record reflect that there exists substantial
circumstantial
Rojas-Diaz

and

evidence
Castillo

of
in

any

collaborative

respect
14

to

the

efforts
money

between

laundering

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conspiracy.

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To the contrary, the record underscores that the

two men had little, if any, contact with each other.

At trial,

for example, Castillo was unsure at first whether he had ever
spoken to Rojas-Diaz before.

Castillo testified about two phone

calls that he may have had with Rojas-Diaz, both of which were
unhelpful in tying the two men to one another.

For the first

call, Castillo explained that he talked to “a Mexican guy or
Hispanic guy” named “Negro.”
Rojas-Diaz
“Mexican

as

guy

“Negro,”
or

Hispanic

no

J.A. 486.
testimony

guy”

on

the

Although Parra knew
established
phone

was

that

the

Rojas-Diaz.

Castillo stated that he had never seen Rojas-Diaz before, so he
could not “be a hundred percent sure who it was that called.”
Id.

For the second call, Castillo testified that he had “talked

to somebody from Houston” once.

Id.

He added, though, that

Rojas-Diaz “was never mentioned to [him] so [he did not] know
who that could be.”

Id.

Moreover, Rojas-Diaz is from North

Carolina, not Houston.
Castillo did not testify specifically as to when either
phone call occurred or the topics discussed.
later

flatly

denied

ever

knowingly

Moreover, Castillo

communicating

with

Rojas-

Diaz, testifying that he “never knew [Rojas-Diaz]” and that he
had “never seen him before.”

J.A. 487.

Castillo also may not

have even been in charge of the drug trafficking enterprise.

He

asserted that he worked directly with his boss, who was never
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identified, and Cox, but he never mentioned working for or with
Rojas-Diaz.

See, e.g., J.A. 485 (“[Cox] told me he had come up

to North Carolina to sell [cocaine], . . . and he brought me
back $96,000 to give my boss.”).

For his part, Cox’s testimony

corroborates

with

that

he

interacted

Rojas-Diaz

and

Castillo

separately.
The government points to portions of Cox’s testimony that
suggest Rojas-Diaz and Castillo communicated with each other at
various times.

See, e.g., J.A. 295 (“I told [Rojas-Diaz] that

had he talked to Papa lately and he said – one time he said
yeah.”).

Based on those portions of the trial testimony, the

government
constant

argues

contact

that

Rojas-Diaz

about

their

and

drug

Castillo

trafficking

remained

affairs.

in
The

cited conversations, however, concern discrete issues, such as
ancillary
drugs

deals

that

involving

Rojas-Diaz

drugs,

Cox’s

supposedly

arrest,

owed

and

money

Castillo.

or
The

conversations do not demonstrate that Rojas-Diaz and Castillo
engaged

in

enterprise,

high-level
and

discussions

certainly

not

about

about

the

the

drug

trafficking

disposition

of

the

proceeds earned from their activities as narcotics traffickers.
Put
between

simply,

there

Rojas-Diaz

and

is

no

evidence

Castillo

to

of

a

purchase

tacit

agreement

the

Fleetwood

trailer; nor is there evidence that Castillo participated in (or
even knew about) its purchase.

The record before us undoubtedly
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shows that Rojas-Diaz and Castillo dealt extensively with drugs
pursuant to their agreement to do so.

It does not, however,

show that they conspired to launder the $19,010 specifically
charged in the indictment.

Cf. United States v. Green, 599 F.3d

360, 372 (4th Cir. 2010) (“[I]t is no exaggeration to observe
that, given the manner in which the two overlapping conspiracy
counts have been framed in the case before us, virtually all of
the evidence presented in support of the drug conspiracy count
prosecuted pursuant to 21 U.S.C. § 846 was potentially probative
of [the defendant’s] alleged involvement in the money laundering
conspiracy

prosecuted

pursuant

to

18

U.S.C.

§

1956(h).”).

Indeed, Castillo does not enter the scene as described in the
second superseding indictment until after the trailer arrived at
his house, long after any conspiracy involving the purchase of
the trailer would have ended and after the money had already
been laundered.

There is no evidence that he directed the money

laundering, caused it to be directed, or knowingly joined in the
effort to do so.
For

these

reasons,

Rojas-Diaz’s

conviction

for

money

laundering conspiracy is not supported by substantial evidence;
the district court erred when it denied the motion for judgment
of

acquittal

as

to

that

count

indictment.

17

of

the

second

superseding

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III.
Rojas-Diaz also challenges his substantive money laundering
conviction, arguing that, in turning over the $19,010 to Cox,
then

a government agent, the crime was never completed.

also asserts multiple errors in the jury instructions.

He

Rojas-

Diaz specifically argues that the district court (1) did not
properly

instruct

government

agent;

willfulness
instructed

that
(2)

element
the

a

failed

of

jury

defendant

a

on

to

cannot

instruct

conspiracy;

concealment

conspire
the

and

money

jury

(3)

with
on

a

the

improperly

laundering

when

promotional laundering was charged in the second superseding
indictment.

We have fully considered these other assignments

of error and find they lack merit.
IV.
For the foregoing reasons, we reverse in part the denial of
the motion for judgment of acquittal, vacate and remand for
entry

of

laundering

an

amended

judgment

conspiracy

charge,

of
and

acquittal
otherwise

on

the
affirm

money
the

judgment.
AFFIRMED IN PART, REVERSED IN PART,
AND VACATED AND REMANDED WITH INSTRUCTIONS

18

Appeal: 14-4441

Doc: 66

Filed: 04/05/2016

Pg: 19 of 19

SHEDD, Circuit Judge, concurring:
I concur in judgment of the court. I write separately about
the reversal of Rojas-Diaz’s conviction on Count 4, an outcome
that

likely

will

not

articulate

my

view

of

laundering

conspiracy.

alter

his

term

the

appropriate

In

my

view,

of

imprisonment,

analysis

the

of

the

sufficiency

to

money

of

the

evidence on Count 4 turns on whether, viewing the evidence in
the

light

inference

most

favorable

supports

to

finding

the
that

Government,
Castillo

a

and

reasonable
Rojas-Diaz

conspired to use drug proceeds to purchase vehicles—including
the Fleetwood trailer listed in Count 4—to further their illegal
drug business. If the Government had proven that Castillo and
Rojas-Diaz

were

in

such

a

conspiracy,

it

would

not

matter

whether Castillo had knowledge of the specific plan to purchase
the Fleetwood trailer. That is, the Government “was not required
to prove beyond a reasonable doubt [Castillo’s] participation
[with Rojas-Diaz] in any actual financial transaction knowingly
using drug trafficking proceeds.” United States v. Green, 599
F.3d 360, 373-74 (4th Cir. 2010).
Here, the Government was unable to articulate how such an
inference

arises

from

the

evidence

presented.

concur fully in the judgment of the court.

19

Accordingly,

I