Beras v. Coakley

Filing 6

Amended Memorandum Opinion and Order re 4 Memorandum Opinion and Order. Text revised on page 7 (lines 20-21) as follows: Consequently, Cuellar does not require a finding that Petitioner is actually innocent of money laundering. Judge Jack Zouhary on 10/2/2013. (D,L)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OHIO
WESTERN DIVISION
Case No. 4:13 CV 971

Roberto Beras,
Petitioner,

AMENDED MEMORANDUM
OPINION AND ORDER

-vsJUDGE JACK ZOUHARY
Joe Coakley, Warden,
Respondent.

INTRODUCTION
Pro se Petitioner Roberto Beras filed a Petition for Writ of Habeas Corpus (Doc. 1) under
28 U.S.C. § 2241 against Elkton Federal Correctional Institution Warden Joe Coakley. Petitioner
contends his 2000 conviction in the United States District Court for the Southern District of New
York on numerous counts of conspiracy to launder money, conspiracy to structure transactions and
avoid currency reporting requirements, money laundering, and causing a financial institution to fail
to file a currency transaction report, should be vacated in light of the U.S. Supreme Court’s decisions
in United States v. Santos, 553 U.S. 507 (2008) and Cuellar v. United States, 553 U.S. 550 (2008).
For the following reasons, the Petition is denied.
Petitioner also filed a Motion to Proceed In Forma Pauperis (Doc. 2) and Motion for
Appointment of Counsel (Doc. 3). The Motion to Proceed In Forma Pauperis is granted; the
Motion for Appointment of Counsel is denied.

BACKGROUND
Petitioner was the vice president and co-owner of Dinero Express (“Dinero”), a licensed
money remitter in New York City, which from 1994 to 1996, laundered tens of millions of dollars
in narcotics proceeds. In exchange for commissions that totaled five percent of each transaction,
Petitioner and his co-conspirators accepted cash deposits from area drug dealers and transferred
those deposits from Dinero’s headquarters to the drug dealers’ international suppliers and associates.
See Beras v. United States, 2013 WL 1155415, at * 1 (S.D.N.Y. 2013).
Dinero’s money-laundering scheme consisted of four steps. First, drug dealers delivered
their cash to Dinero’s New York headquarters and Dinero gradually deposited the money in smaller
amounts in its bank accounts throughout the United States. Id. at *3. Second, Dinero issued
remittance invoices for fictitious transactions to the Dominican Republic in amounts small enough
to avoid the currency reporting requirements. Id. Third, a Dominican peso supplier fulfilled the
fictitious remittances by advancing local currency in the amount of the original deposit to Dinero’s
headquarters minus the commission to Dinero’s Dominican office. Dinero’s Dominican office
forwarded the cash to the drug dealers’ contacts in the Dominican Republic. Id. Finally, Dinero’s
New York office completed the transaction by transferring funds to the peso supplier’s bank
accounts in the United States. Id.
In April 2000, Petitioner was charged with 82 counts that included: conspiracy to launder
money in violation of 18 U.S.C. § 1956(h); conspiracy to structure transactions and avoid currency
reporting requirements in violation of 18 U.S.C. § 371; engaging in money laundering in violation
of 18 U.S.C. § 1956(a)(2)(b); engaging in money laundering in violation of 18 U.S.C. § 1956(a)(3);
structuring financial transactions in violation of 31 U.S.C. § 5324(a)(3) and 18 U.S.C. § 2; and
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causing a financial institution to fail to file a currency transaction report in violation of 31 U.S.C.
§ 5324(a)(1) and 18 U.S.C. § 2. Id. at *1. In December 2000, a jury found Petitioner guilty on all
82 counts, and in November 2001, he was sentenced to 292 months of imprisonment and three years
of supervised release. Id. at *2.
Petitioner asserts he is entitled to relief from his conviction under 28 U.S.C. § 2241 based
on two recent cases from the United States Supreme Court, United States v. Santos, 553 U.S. 507
(2008) and Cuellar v. Unites States, 553 U.S. 550 (2008). He contends these cases changed key
terms in the money-laundering statute under which he was convicted, making him actually innocent
of the crimes.
STANDARD OF REVIEW
Writs of habeas corpus under Section 2241 “may be granted by the Supreme Court, any
justice thereof, the district courts and any circuit judge within their respective jurisdictions.” 28
U.S.C. § 2241(a). Section 2241 “is an affirmative grant of power to federal courts to issue writs of
habeas corpus to prisoners being held ‘in violation of the Constitution or laws or treaties of the
United States.’” Rice v. White, 660 F.3d 242, 249 (6th Cir. 2011) (quoting 28 U.S.C. § 2241(c)).
Because Petitioner is appearing pro se, the allegations in his Petition must be construed in his favor,
and his pleadings are held to a less stringent standard than those prepared by counsel. Urbina v.
Thoms, 270 F.3d 292, 295 (6th Cir. 2001). However, courts have broad discretion in structuring the
terms of habeas relief. Demis v. Sneizek, 558 F.3d 508, 515 (6th Cir. 2009). Courts may dismiss
petitions at any time or make any disposition as law and justice require, if it determines a petition
fails to establish adequate grounds for relief. Hilton v. Braunskill, 481 U.S. 770, 775 (1987).

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ANALYSIS
In order to challenge the legality of his conviction or sentence, a federal prisoner must file
a post-conviction motion under 28 U.S.C. § 2255 with the trial court. Capaldi v. Pontesso, 135 F.3d
1122, 1123 (6th Cir. 2003). A petition for writ of habeas corpus under Section 2241 allows a federal
prisoner to challenge only the manner in which the sentence is being executed, such as the
computation of sentence credits or parole eligibility, rather than the validity of the sentence itself.
United States v. Jalili, 925 F.2d 889, 894 (6th Cir. 1999).
Section 2255(e) provides a narrow exception to this rule by permitting a prisoner to
challenge the legality of a conviction through a Section 2241 petition where the remedy under
Section 2255 is or was “inadequate or ineffective” to test the legality of the detention. This is a
rigorous showing because circuit courts have only permitted petitioners who have effectively made
claims of actual innocence to utilize Section 2241 as a way of circumventing Section 2255’s filing
restrictions on the filing of second or successive habeas petitions. Martin v. Perez, 319 F.3d 799,
804 (6th Cir. 2003) (citing Charles v. Chandler, 180 F.3d 753, 757 (6th Cir. 1999)). A Section 2255
remedy is not considered “inadequate or ineffective” simply because Section 2255 relief has already
been denied, or because the petitioner is procedurally barred from pursuing relief under Section
2255, or because the petitioner has been denied permission to file a second or successive motion to
vacate. Charles, 180 F.3d at 756. A prisoner’s inability to use Section 2255 to challenge the
legality of his detention, however, is not enough to prove inadequacy or ineffectiveness. United
States v. Peterman, 249 F.3d 458, 461 (6th Cir. 2001).
The savings clause is limited to factual situations where, after a prisoner’s conviction has
become final, the Supreme Court reinterprets the terms of the statute under which he was convicted
and such reinterpretation excludes his actions as a violation of the statute. Martin, 319 F.3d at 804.
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Also, the savings clause applies only when a petitioner makes a claim of actual innocence.
Bannerman v. Snyder, 325 F.3d 722, 724 (6th Cir. 2003). To establish actual innocence, a petitioner
must demonstrate that “it is more likely than not that no reasonable juror would have convicted
him.” Bousley v. United States, 523 U.S. 614, 623–24 (1998). Actual innocence means factual
innocence, not mere legal insufficiency. Id.
Factual innocence may be established by showing an intervening change in the law that
establishes a petitioner’s actual innocence. Peterman, 249 F.3d at 462. This may be achieved by
demonstrating: (1) the existence of a new interpretation of statutory law, (2) issued after a petitioner
had sufficient time to incorporate the new interpretation into his direct appeals or subsequent
motions, (3) which is retroactive, and (4) which applies to the merits of the petition to make it more
likely than not that no reasonable juror would have convicted him. Wooten v. Cauley, 677 F.3d 303,
307–08 (6th Cir. 2012).
Petitioner claims his remedy under Section 2255 is inadequate and ineffective to test his
detention because he was time-barred from presenting his current claims in the Section 2255 motion
he filed in the trial court on February 17, 2005. Beras, 2013 WL 1155415, at *4. Over the next four
years, he filed seventeen supplements to his Section 2255 petition. Id. at *5. Because these
supplements were filed well after the February 23, 2005 deadline for filing his Section 2255 petition,
the court concluded the claims contained in the supplements were time-barred, unless they related
back to claims asserted in the original petition.
Although the Supreme Court issued its decisions in Santos and Cuellar on June 2, 2008,
Petitioner asserted substantially similar arguments in his Section 2255 supplements filed in June
2005, January 2007, and May 2008. Id. He also filed supplements in June 2008 and September
2009 citing Santos and Cuellar. Id. The district court determined the supplements did not assert
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issues relating back to the original petition, and were therefore untimely. Furthermore, the court
determined if those claims had been timely, Petitioner could not prove he had a merger problem
because the Second Circuit already determined on direct appeal that Petitioner’s convictions for
money laundering under 18 U.S.C. § 1956 and for structuring funds under 31 U.S.C. § 5324(a)(3)
were not “multiplicitious.” Id. at *9. The district court denied the Section 2255 petition in March
2013. Plaintiff claims because Santos and Cuellar were not decided until after his time to file a
Section 2255 motion expired, his remedy under Section 2255 is inadequate and ineffective to
address his current claims.
Petitioner argues he is actually innocent of money laundering because the Supreme Court
in Santos issued a new interpretation of the term “proceeds” as “profits” in 18 U.S.C. § 1956.
Santos is retroactive. Wooten, 677 F.3d at 308. He contends the crime of money laundering under
18 U.S.C. § 1956(a)(3) and the crime of structuring financial transactions in violation of 31 U.S.C.
§ 5324(a)(3) both require proof of the existence of a financial transaction, thus creating a merger
problem. He claims the government is required under Santos to prove he intended to transport
“profits,” not just “gross receipts” to further a money laundering scheme. He contends the
government did not prove this, and he is therefore actually innocent of money laundering.
Santos does not apply in this case because there is no merger problem. Petitioner argued to
the Second Circuit on direct appeal that his convictions of money laundering under 18 U.S.C.
§ 956(a)(3) and structuring financial transactions under 31 U.S.C. § 5324(a)(3) presented a “merger
problem” and violated the prohibition against double jeopardy. Beras, 2013 WL 1155415, at *2.
The Second Circuit rejected this argument, finding that each charge required proof of an element
that the other did not. Because there is no merger problem in Petitioner’s convictions, Santos does
not apply.
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Petitioner also argues he is actually innocent of money laundering because the Supreme
Court in Cuellar issued a new interpretation of the term “design” in 18 U.S.C. § 1956(a)(2)(B)(i),
which makes this statute inapplicable to him. This section, in relevant part, makes it a crime to
attempt to transport “funds from a place in the United States to . . . a place outside the United States
. . . knowing that the . . . funds involved in the transportation . . . represent the proceeds of some
form of unlawful activity and knowing that such transportation . . . is designed in whole or in part
. . . to conceal or disguise the nature, location, source, ownership, or control of the proceeds of
specified unlawful activity.” Because the Court in Cuellar interpreted “design” to mean purpose,
the government was required to prove Petitioner (1) attempted to transport funds from the United
States to the Dominican Republic, (2) knew these funds “represent[ed] the proceeds” of drug
trafficking, and (3) knew such transportation was intended to conceal or disguise the nature, the
location, the source, the ownership, or the control of the funds.
Here, unlike Cuellar, Petitioner’s methods of transportation do not suggest the money was
concealed only for the purposes of getting it from Point A to Point B. Indeed, Petitioner
acknowledges the drug money was delivered to Dinero’s New York headquarters, deposited slowly
into various Dinero Bank accounts, transferred to the Dominican Republic using phony invoices,
converted to local currency using a straw man, redeposited into Dinero accounts in the Dominican
Republic, and then transferred to drug dealers in the Dominican Republic. This evidence suggests
the transactions themselves were designed to conceal where the money came from, not where it was
at a given moment. Consequently, Cuellar does not require a finding that Petitioner is actually
innocent of money laundering. See United States v. Warshak, 631 F.3d 266, 322 (6th Cir. 2010).
Because Petitioner did not establish his actual innocence in the crime of money laundering,
he cannot challenge his conviction under 28 U.S.C. § 2241.
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CONCLUSION
Accordingly, this Court denies the Petition (Doc. 1); grants the Petitioner’s Motion to
Proceed In Forma Pauperis (Doc. 2); and denies Petitioner’s Motion for Appointment of Counsel
(Doc. 3). This action is dismissed under 28 U.S.C. §§ 2243 and 1915(e). This Court further
certifies, pursuant to 28 U.S.C. § 1915(a)(3), that an appeal from this decision could not be taken
in good faith.
IT IS SO ORDERED.
s/ Jack Zouhary
JACK ZOUHARY
U. S. DISTRICT JUDGE
October 2, 2013

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