United States v. Rachael Maia Winslow

USCA11 Case: 23-12230 Document: 42-1 Date Filed: 07/31/2024 Page: 1 of 11

[DO NOT PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 23-12230

Non-Argument Calendar

____________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

RACHAEL MAIA WINSLOW,

a.k.a. Pamela Henderson,

Defendant-Appellant.

____________________

Appeal from the United States District Court

for the Middle District of Florida

D.C. Docket No. 8:20-cr-00140-MSS-MRM-1

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2 Opinion of the Court 23-12230

____________________

Before ROSENBAUM, GRANT, and LAGOA, Circuit Judges.

PER CURIAM:

Rachael Maia Winslow appeals from her conviction and sen-

tence for conspiracy to commit money laundering. First, she ar-

gues that the district court erred in denying her motion to dismiss

the superseding indictment because the statute of limitations appli-

cable to her charged offense expired before the government filed

charging documents. Second, she argues that the district court

clearly erred in applying a three-level role enhancement pursuant

to U.S.S.G. § 3B1.1 because the government did not present suffi-

cient evidence for the court to find that she was a manager or su-

pervisor of the alleged conspiracy. Third, she argues that the dis-

trict court clearly erred in finding that she was responsible for a loss

amount that exceeded the special forfeiture verdict returned by the

jury. For the reasons stated below, we affirm.

I.

We review de novo the district court’s interpretation of a stat-

ute but review for clear error the district court’s findings of fact

underlying the application of that statute. United States v. Trainor,

376 F.3d 1325, 1329-30 (11th Cir. 2004). The application of a statute

of limitations is a question of law reviewed de novo. Atl. Land &

Improvement Co. v. United States, 790 F.2d 853, 857 (11th Cir.1986).

When interpreting a statute, we begin by examining the text

of the statute to determine whether the meaning is clear and if so,

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23-12230 Opinion of the Court 3

the analysis may end there. Trainor, 376 F.3d at 1330. We give the

words of a statute their ordinary, contemporary, common mean-

ing unless there is evidence that Congress wished to define them

differently. Id. When construing a statute, we assume that Con-

gress is aware of the well-established judicial construction of cer-

tain terms, including legal terms of art. Id.

Under 18 U.S.C. § 3282, “no person shall be prosecuted,

tried, or punished for any offense, not capital, unless the indictment

is found or the information is instituted within five years next after

such offense shall have been committed.” But this five-year statute

of limitations for noncapital offenses may be suspended by an evi-

dentiary request to a foreign authority if certain conditions are met.

See 18 U.S.C. § 3292.

Section 3292 provides that:

Upon application of the United States, filed before re-

turn of an indictment, indicating that evidence of an

offense is in a foreign country, the district court be-

fore which a grand jury is impaneled to investigate

the offense shall suspend the running of the statute of

limitations for the offense if the court finds by a pre-

ponderance of the evidence that an official request

has been made for such evidence and that it reasona-

bly appears, or reasonably appeared at the time the

request was made, that such evidence is, or was, in

such foreign country.

Id. § 3292(a)(1). We have stated that “[a] plain reading of § 3292

demonstrates that a district court’s decision whether to suspend the

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4 Opinion of the Court 23-12230

running of a statute of limitations is limited to two considerations:

1) whether an official request was made; and 2) whether that offi-

cial request was made for evidence that reasonably appears to be

in the country to which the request was made.” United States v.

Broughton, 689 F.3d 1260, 1273 (11th Cir. 2012). If the government

satisfies both these requirements, the statute of limitations “shall”

be suspended. Id. (quotation marks omitted). An official request

includes “a letter rogatory, a request under a treaty or convention,

or any other request for evidence made by a court of the United

States or an authority of the United States having criminal law en-

forcement responsibility, to a court or other authority of a foreign

country.” 18 U.S.C. § 3292(d). It must reasonably appear, or rea-

sonably appear at the time the request was made, that the re-

quested evidence is located in that foreign country. Id. § 3292(a).

We have rejected a defendant’s arguments that the statute

of limitations should not be suspended where the commission and

completion of alleged, terminated conspiracies was known before

the government’s application and the evidence requested or ob-

tained by the government was not necessary, sufficient, or rele-

vant. See Broughton, 689 F.3d at 1273. We stated that the district

court’s inquiry into the government’s use of the procedural mech-

anism of § 3292 was constrained to whether the government estab-

lished, to a preponderance of the evidence, the two elements re-

quired by statute—(1) an official request that is (2) directed to a

country where the evidence may reasonably be located. Id.

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We have applied the ordinary meaning of the common law

term “preponderance of the evidence” in interpreting 18 U.S.C.

§ 3292, requiring that the evidence show that a fact is more proba-

ble than its nonexistence. Trainor, 376 F.3d at 1331. In this context,

evidence constitutes anything that tends to prove or disprove the

existence of an alleged fact and bears some minimum mark of trust-

worthiness. Id. The evidence submitted under 18 U.S.C. § 3292

must bear some indicia of reliability, such as statements under oath

or authentication of documents, but need not be as reliable as evi-

dence submitted at trial. Id. “The oath is an important indicia of

reliability.” Id. at 1332. The ex parte nature of § 3292 proceedings

makes it especially important that the evidence bear some indicia

of reliability because the defendant is not present to challenge the

evidence and the court must protect her interests by evaluating the

evidence. Id.

If both statutory considerations are met, the running of the

limitations period is suspended from the date on which the official

request is made to the date on which the foreign court or authority

takes final action on the request. 18 U.S.C. § 3292(b). We have

held that a “final action” for the purposes of § 3292(b) occurs when

a foreign court or authority responds to each element of the gov-

ernment’s official request for information. United States v. Torres,

318 F.3d 1058, 1065 (11th Cir. 2003). The total period of suspension

under § 3292 may not exceed three years. 18 U.S.C. § 3292(c). In

calculating the expiration of the statute of limitations after a period

of suspension, we count the time that passes before an official re-

quest to a foreign court or authority for evidence under § 3292,

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6 Opinion of the Court 23-12230

then suspend counting while the request is pending. See Broughton,

689 F.3d at 1276. If the foreign court or authority responds outside

of the original five-year limitations period, the count resumes after

receiving the response until five years total has passed. See id. (not-

ing that about 47 months elapsed between the end of a conspiracy

and a § 3292 request that suspended the statute of limitations,

meaning 13 months remained in the limitations period for the gov-

ernment to bring charges after the foreign government responded,

terminating about 19 months after the state of limitations would

otherwise have run).

Here, we conclude that the district court did not err in deny-

ing Winslow’s motion to dismiss the superseding indictment be-

cause the government’s valid request to the Central Authority of

Mauritius for evidence of bank accounts associated with the con-

spiracy suspended the statute of limitations until Mauritius’s final

action and the government filed a superseding indictment within

the limitations period once the running of the statute resumed.

II.

When reviewing the district court’s findings about Guide-

lines issues, we consider legal issues de novo, factual findings for

clear error, and the court’s application of the Guidelines to the facts

with due deference, which is akin to clear error review. United

States v. Rothenberg, 610 F.3d 621, 624 (11th Cir. 2010). We review

the district court’s imposition of an aggravating role-enhancement

for clear error. United States v. Shabazz, 887 F.3d 1204, 1222 (11th

Cir. 2018).

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23-12230 Opinion of the Court 7

The Guidelines prescribe a four-level enhancement for a de-

fendant who acted as the organizer or leader of a conspiracy that

involved five or more participants or “was otherwise extensive.”

See U.S.S.G. § 3B1.1(a). The Guidelines prescribe a three-level role

enhancement for a defendant if: “(1) the defendant was a manager

or supervisor, but not an organizer or leader; and (2) the criminal

activity involved five or more participants or was otherwise exten-

sive.” United States v. Sosa, 777 F.3d 1279, 1301 (11th Cir. 2015) (cit-

ing U.S.S.G. § 3B1.1(b)). To qualify for the three-level enhance-

ment, the defendant is only required to manage or supervise one

other participant in the criminal offense. Id. (citing U.S.S.G.

§ 3B1.1, comment. (n.2)). The enhancement “cannot be based

solely on a finding that a defendant managed the assets of a con-

spiracy, without the defendant also managing or exercising control

over another participant.” Sosa, 777 F.3d at 1301 (quotation marks

omitted); see also United States v. Jennings, 599 F.3d 1241, 1253 (11th

Cir. 2010) (“control over assets alone is insufficient, the [defendant]

must have had control over at least one other participant in the

criminal activity”). If the defendant does not manage at least one

other participant, the enhancement may never apply as a matter of

law, even if the sentencing court correctly finds that the criminal

scheme was “otherwise extensive.” See United States v. Williams,

527 F.3d 1235, 1249 (11th Cir. 2008) (quotation marks omitted) (an-

alyzing the district court’s determination that a two-level aggravat-

ing role enhancement applied).

The sentencing court assesses the same seven factors listed

in the commentary in relation to the four-level leadership

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8 Opinion of the Court 23-12230

enhancement and the three-level managerial enhancement, distin-

guishing between leaders or organizers and managers or supervi-

sors by the degree to which these factors are present. See United

States v. Valladares, 544 F.3d 1257, 1267-68 (11th Cir. 2008). The

factors include: the exercise of decision-making authority, the na-

ture of participation in the commission of the offense, the recruit-

ment of accomplices, the claimed right to a larger share of the fruits

of the crime, the degree of participation in planning or organizing

the offense, the nature and scope of the illegal activity, and the de-

gree of control and authority exercised over others. U.S.S.G. §

3B1.1, comment. (n.4).

Here, we conclude that the district court did not clearly err

in finding that Winslow was a manager or supervisor in the con-

spiracy and in applying a three-level role enhancement under §

3B1.1(b) because the conspiracy was large enough to apply the

Guideline and evidence showed that Winslow supervised multiple

employees in a sales office in Spain.

III.

We review a district court’s determination of the amount of

loss involved in the offense for clear error. United States v. Maxwell,

579 F.3d 1282, 1305 (11th Cir. 2009). The district court is in a

unique position to assess the relevant evidence and estimate the

loss, and thus we grant the sentencing court’s loss amount deter-

mination “appropriate deference.” United States v. Cavallo, 790 F.3d

1202, 1232 (11th Cir. 2015) (quotation marks omitted) (citing

U.S.S.G. § 2B1.1, comment. (n.3)). The court must make an

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independent finding of loss. United States v. Foley, 508 F.3d 627, 633

(11th Cir. 2007). However, the sentencing court’s failure to make

specific factual findings about the loss amount “will not result in

reversal if the record otherwise supports the court’s determina-

tions.” United States v. Maitre, 898 F.3d 1151, 1160 (11th Cir. 2018)

(quotation marks and brackets omitted).

For the purposes of calculating the adjusted offense level

pursuant to § 2B1.1(b)(1), loss is the greater of the actual loss or the

intended loss. U.S.S.G. § 2B1.1, comment. (n.3(A)). The Sentenc-

ing Guidelines define “actual loss” as “the reasonably foreseeable

pecuniary harm that resulted from the offense.” Id. § 2B1.1, com-

ment. (n.3(A)(i)). The Sentencing Guidelines define “intended

loss” as “the pecuniary harm that was intended to result from the

offense,” which includes harm that would have been unlikely to

occur or impossible. Cavallo, 790 F.3d at 1232 (citing U.S.S.G.

§ 2B1.1, comment. (n.3(A)(ii))).

When determining the loss amount, the court must consider

all relevant conduct. United States v. Rodriguez, 751 F.3d 1244, 1256

(11th Cir. 2014). This includes conduct that took place outside of a

relevant limitations period. United States v. Behr, 93 F.3d 764, 765-

66 (11th Cir. 1996). The court may consider, among other things,

evidence heard at trial and evidence presented at the sentencing

hearing. United States v. Hamaker, 455 F.3d 1316, 1338 (11th Cir.

2006). “The amount of loss must be proven by a preponderance of

the evidence, and the burden must be satisfied with reliable and

specific evidence.” United States v. Medina, 485 F.3d 1291, 1304

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(11th Cir. 2007) (quotation marks omitted). The district court may

hold all participants in a conspiracy responsible for the losses result-

ing from the reasonably foreseeable acts of co-conspirators in fur-

therance of the conspiracy. See Cavallo, 790 F.3d at 1235.

The loss amount at sentencing may differ from a jury’s for-

feiture verdict, and we may not rely on a jury’s forfeiture verdict

when applying guidelines that vary in severity by loss amount.

Hamaker, 455 F.3d at 1336. Forfeiture is a form of punishment im-

posed to divest a defendant of ill-gotten gains while loss focuses on

the harm to the victim. Id. at 1337. When a district court relies on

the jury’s forfeiture verdict instead of determining the appropriate

loss amount, it conflates distinct concepts and calculations, under

different burdens of proof, and fails to conduct the required inde-

pendent investigation. Id. at 1337-38. Fundamentally, the limits of

sentencing accountability are not coextensive with the scope of

criminal liability. United States v. Hunter, 323 F.3d 1314, 1319 (11th

Cir.2003).

The Guidelines prescribe a 20-level enhancement for a theft

offense that results in a loss amount that is more than $9,500,000

but less than $25,000,000. U.S.S.G. § 2B1.1(b)(K).

Here, we conclude that the district court did not clearly err

in calculating a loss amount that exceeded the special forfeiture ver-

dict because the district court determined, through an independent

investigation, that the amount of foreseeable harm to victims at-

tributed to the conspiracy during the relevant period was greater

than the amount of money in Winslow’s bank accounts that was

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directly traceable to her participation in the conspiracy. Accord-

ingly, we affirm Winslow’s conviction and sentence.

AFFIRMED.