United States v. Salvador Magluta

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FILED

FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS

________________________ ELEVENTH CIRCUIT

JULY 27, 2005

No. 03-10694 THOMAS K. KAHN

________________________ CLERK

D. C. Docket No. 99-00583-CR-PAS

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

SALVADOR MAGLUTA,

a.k.a. Sal,

Defendant-Appellant.

________________________

Appeal from the United States District Court

for the Southern District of Florida

_________________________

(July 27, 2005)

Before CARNES and COX, Circuit Judges, and MILLS *, District Judge.

*

Honorable Richard Mills, United States District Judge for the Central District of

Illinois, sitting by designation.

CARNES, Circuit Judge:

In August of 2002, a jury convicted Salvador Magluta of twelve counts:

eight counts of laundering drug proceeds, and one count each of conspiracy to

launder drug proceeds, conspiracy to obstruct justice, obstruction of justice by

bribing a witness, and obstruction of justice by bribing a juror. The jury also

returned a special forfeiture verdict requiring Magluta to forfeit $15 million in

currency, and also some real property.

In January of 2003, the district court sentenced Magluta to 2,460 months

(205 years) in prison. The total sentence was rang up this way: 240 months on

each of the eight substantive drug proceeds laundering counts; 240 months on the

conspiracy to launder count; 60 months on the conspiracy to obstruct justice count;

120 months on the obstruction by bribing a juror count; and 120 months on the

obstruction by bribing a witness count. Each sentence was made consecutive to

every other one.

Magluta asserts that his convictions on a number of the counts must be

reversed and also that his sentence was incorrectly calculated. First, he contends

that his convictions on all nine of the money laundering counts (eight substantive

and one conspiracy) must be reversed on collateral estoppel grounds. The basis for

this contention is that six years before this trial he was acquitted of substantive

2

drug offenses, and evidence of those offenses was used to prove the money

laundering charges in this trial. Second, Magluta contends that the evidence was

insufficient to support his convictions on the eight substantive money laundering

counts.

Magluta’s third and fourth contentions attack his conviction on the

obstruction of justice through juror bribery count. He argues that it must be

reversed because the district court erred in admitting certain out-of-court

statements of a bribed juror under the co-conspirator exception to the hearsay rule

contained in Fed. R. Evid. 801(d)(2)(E). He also argues that this conviction must

be reversed because the district court did not give a special unanimity instruction

geared to the identity of the juror who was allegedly bribed.

Fifth, Magluta contends that documentary evidence vital to several of his

convictions was seized and admitted at trial in violation of his Fourth Amendment

rights thereby tainting some of his convictions. If we agree, he asks that we

remand to the district court with instructions for it to determine which of his

convictions were tainted by this assertedly erroneously introduced evidence.

Finally, Magluta makes several arguments that his sentence was incorrectly

calculated. We will address each of these six major contentions in the order we

have listed them.

3

I.

Magluta’s attack on his money laundering convictions in this case centers

around his 1996 acquittal on all of the twenty-four drug-related counts against him.

In that earlier case the district court granted judgments of acquittal on seven

counts, and the jury acquitted Magluta of all of the remaining ones. Among the

charges for which Magluta was acquitted in the earlier trial were: operating a

continuing criminal enterprise from January 1978 through April 1991; conspiring

to import and distribute cocaine during that same period of time; and engaging in a

number of substantive drug importation and distribution offenses from 1986

through 1989. The continuing criminal enterprise count in that earlier case

incorporated all of the conspiracy and substantive drug offenses that were

separately charged in that case.

Magluta contends that the 1996 acquittal established that he was not

involved in drug offenses during the periods of time charged in that case, which

include the times when the crimes charged in this case took place. His position is

that the government was collaterally estopped from introducing in this case

evidence of drug offenses allegedly committed during the periods of time covered

by the charges in the first case. The district court disagreed, and so do we.

The government did introduce in this case evidence of criminal activity for

4

which Magluta had been acquitted in the earlier case. The money laundering

conspiracy charged in this case involved criminal activity beginning in January

1979 and extending through December 2001, and the substantive money

laundering charges involved criminal activity that occurred in October and

December 1998. In proving those charges in this case, the government introduced

evidence of illegal drug activities that had taken place between 1978 and

1991,which is the period of time alleged in indictment in the earlier case where

Magluta was acquitted.1 The government used evidence of that criminal activity in

order to establish in this case the “specified unlawful activity” element, 18 U.S.C.

§ 1956(a)(1)(B)(i), of the money laundering charges against Magluta.2

“The doctrine of collateral estoppel is a narrow exception to the

Government’s right to prosecute a defendant in separate trials for related conduct.”

1

As we say in the text, Magluta was acquitted in the 1996 trial of charges that he had

committed drug offenses beginning in 1978. He said during that trial he had ceased all illegal

drug activities in 1980. As a consequence of his having acknowledged that he had engaged in

drug activities until some time in 1980, Magluta has narrowed the issue he is raising in this case

to whether the government was collaterally estopped from attempting to prove that he engaged

in illegal drug activities between 1980 and 1991.

2

To prove that Magluta engaged in money laundering under 18 U.S.C.

§ 1956(a)(1)(B)(i), the government had to establish that: (1) Magluta conducted or attempted to

conduct a financial transaction; (2) the transaction involved the proceeds of a statutorily

specified unlawful activity; (3) Magluta knew the proceeds were from some form of illegal

activity; and (4) Magluta knew a purpose of the transaction was to conceal or disguise the nature,

location, source, ownership, or control of the proceeds. See United States v. Majors, 196 F.3d

1206, 1212 (11th Cir. 1999). Felony drug offenses qualify as a “specified unlawful activity” as

that term is used in § 1956. See 18 U.S.C. §§ 1956(c)(7)(B)(i) & (A), 1961(1).

5

United States v. Brown, 983 F.2d 201, 202 (11th Cir. 1993); see also United States

v. Garcia, 78 F.3d 1517, 1521 (11th Cir. 1996). Collateral estoppel “bars a

subsequent prosecution only where a fact or issue necessarily determined in the

defendant’s favor in the former trial is an essential element of conviction at the

second trial.” Brown, 983 F.2d at 202; see also Garcia, 78 F.3d at 1521.

Applying the collateral estoppel doctrine requires a two-step analysis:

First, a court must decide whether it can ascertain the basis of the acquittal at

the first trial. More precisely, a court must determine whether the jury’s

verdict of acquittal was based upon reasonable doubt about a single element

of the crime which the court can identify. [Second], the court must then

decide whether that element is also an essential element of the crime for

which the defendant was convicted in the second trial.

Brown, 983 F.2d at 202. “‘[T]he identity of overlapping elements required for

collateral estoppel must extend beyond the legal definition of the elements.’ There

also has to be such factual identity of the issues that ‘[t]he subsequent verdict of

conviction [is] rationally inconsistent with the prior verdict of acquittal.’” Garcia,

78 F.3d at 1521 (quoting Brown, 983 F.2d at 202). The burden of persuasion is on

the defendant as to both steps of the analysis. Id.; Brown, 983 F.2d at 202.

As for the first step, Magluta argues that the basis of his 1996 acquittal was

that he had ceased all drug trafficking activities in May 1980. This has to have

been the basis for his acquittal, Magluta says, because it was the only defense he

put forward to the crimes alleged in his 1996 trial. We can assume without

6

deciding that Magluta is right about this point, and thereby satisfies the first step of

the collateral estoppel test, because he does not satisfy the second one.

The second step of the collateral estoppel test requires Magluta to establish

that the elements of the crime on which the prior acquittal was based are also

essential elements of the crime for which he was convicted at the second trial. See

Garcia, 78 F.3d at 1521; Brown, 983 F.2d at 202. That is to say, Magluta must

show that the elements of the drug offenses which led to his acquittal in the 1996

trial are essential elements of the money laundering offenses for which he was

convicted in this case.

Even if we accept for present purposes Magluta’s premise that his 1996

acquittal established he was not involved in the illegal drug activity with which he

had been charged in that earlier case, his argument still fails. It fails because

Magluta’s personal involvement in, or guilt of, the criminal activity charged in the

earlier case is not an element of the money laundering charge he was convicted of

in this case. This indictment charged Magluta with money laundering in violation

of 18 U.S.C. § 1956(a)(1)(B)(i), with the specified unlawful activity being felony

drug offenses. The government had to prove that Magluta, with the requisite

knowledge and intent, conducted a financial transaction involving the proceeds of

felony drug offenses. See Majors, 196 F.3d at 1212. The government did not have

7

to prove, however, that Magluta committed the felony drug offenses. See id. As

far as the money laundering statute is concerned, laundering someone else’s illegal

proceeds is just as bad as laundering your own—there is no help-thy-neighbor

exception to § 1956(a)(1)(B)(i). Accordingly, the collateral estoppel effect of

Magluta’s 1996 acquittal of illegal drug activity does not extend to any of the

essential elements of the money laundering charges on which he was convicted in

this case.

II.

Magluta challenges the sufficiency of the evidence to support his

convictions on the eight substantive money laundering counts. While phrased in

sufficiency of the evidence terms, Magluta’s actual challenge here raises the issue

of whether the relevant facts, which are essentially undisputed, constitute money

laundering. As we have mentioned, Magluta was convicted of money laundering

conducted for the purpose of concealing the nature, location, source, ownership, or

control of the illegal drug proceeds, in violation of 18 U.S.C. § 1956(a)(1)(B)(i).

The charges and evidence centered on the fact that Magluta had paid his lawyers

with checks written from an Israeli bank account held under a fictitious name.

On September 10, 1998, Richard Passapera, a Magluta associate, delivered

$1.2 million in illegal drug proceeds to Antonio Garcia, another Magluta associate,

8

in Miami. Unbeknownst to Passapera and Magluta, however, Garcia had become

an FBI informant. Garcia turned the money over to the FBI, which transported it

to New York where it gave the money back to Garcia in order to complete the

transaction. In New York, Garcia gave the money to Harry Kozlik and Isaac

Benatar, who were also Magluta associates. Kozlik transported the money to Israel

and deposited it in an Israeli bank under the fictitious name of “Leonard

Friedman.” Kozlik eventually provided Garcia with eight blank checks issued

from the account. Garcia, at the direction of the FBI, passed the checks on to

Passapera. Magluta then used the checks to pay his lawyers.

Magluta makes three arguments to support his position that the established

facts about what happened to the drug proceeds are not sufficient to make out

money laundering. His first argument is that, because the proceeds had been under

the control of law enforcement before he used them to pay his lawyers, the money

had lost its “tainted” character and was no longer proceeds of a specified illegal

activity in the sense required by § 1956(a)(1)(B)(i). Unable to find a money

laundering decision of any court on point with his position, Magluta asks us to

draw an analogy to stolen property cases, where property loses its “stolen”

character once it is recovered and controlled by law enforcement. See, e.g., United

States v. Cohen, 274 F. 596, 599 (3d Cir. 1921). We are not persuaded to do that.

9

The plain language of the money laundering statute requires that the

“financial transaction . . . in fact involves the proceeds of [a] specified unlawful

activity.” 18 U.S.C. § 1956(a)(1). But there is nothing in the statutory language to

suggest that, in addition to being from a specified unlawful activity, the proceeds

must never have been in the control of the government before they reached the

defendant. It seems to us that laundered money does not become any less

laundered because the government helped the process along or chose not to stop it.

Having said that, we are not asked to decide whether government intrusion into

laundering transactions ever could rise to the level that the money no longer

qualifies as the “proceeds of [a] specified unlawful activity” under § 1956(a)(1).

All we must decide here is whether the level of government involvement in this

case was enough to change the nature of the proceeds. On the facts of this case, it

was not.

Magluta’s second argument is that allowing actual drug proceeds which

have been in the possession of the government to form the basis for a conviction

under § 1956(a)(1) would make the money laundering “sting” statute, 18 U.S.C.

§ 1956(a)(3), superfluous.3 Sections 1956(a)(1) and 1956(a)(3) cover different

3

18 U.S.C. § 1956(a)(1) states:

(a)(1) Whoever, knowing that the property involved in a financial transaction represents

the proceeds of some form of unlawful activity, conducts or attempts to conduct such a

10

situations. The (a)(1) subdivision covers situations where the proceeds are actually

from a specified unlawful activity. 18 U.S.C. § 1956(a)(1). The (a)(3) subdivision

covers situations where the government, or some person at the direction of the

government, represents that the proceeds are from a specified unlawful activity

though in reality they are not. Id. § 1956(a)(3). The two provisions serve different

purposes. Neither provision is rendered superfluous by our holding that the level

of government involvement in the laundering in this case was not enough to

financial transaction which in fact involves the proceeds of specified unlawful activity—

....

(B) knowing that the monetary instrument or funds involved in the transportation,

transmission, or transfer represent the proceeds of some form of unlawful activity

and knowing that such transportation, transmission, or transfer is designed in

whole or in part—

(i) to conceal or disguise the nature, the location, the source, the

ownership, or the control of the proceeds of specified unlawful activity; or

....

shall be sentenced to a fine of not more than $500,000 or twice the value of the property

involved in the transaction, whichever is greater, or imprisonment for not more than

twenty years, or both.

Id. (emphasis added).

18 U.S.C. § 1956(a)(3) states:

Whoever, with the intent—

....

(B) to conceal or disguise the nature, location, source, ownership, or control of

property believed to be the proceeds of specified unlawful activity; or

....

conducts or attempts to conduct a financial transaction involving property represented to

be the proceeds of specified unlawful activity, or property used to conduct or facilitate

specified unlawful activity, shall be fined under this title or imprisoned for not more than

20 years, or both.

Id. (emphasis added).

11

cleanse these “proceeds of specified unlawful activity” of their taint for

§ 1956(a)(1)(B)(i) purposes.

Magluta’s third argument on this issue is that by the time he wrote the

checks to his lawyers the money had already been laundered; therefore, he says, his

acts amounted to mere spending for his personal benefit, not laundering in

violation of § 1956(a)(1)(B)(i). We have stated that payments for personal benefit

out of previously laundered proceeds do not themselves constitute money

laundering unless they are designed to conceal the nature or source of the money.

See Majors, 196 F.3d at 1213 (internal quotation and marks omitted).

We have set out several factors that are helpful in determining whether a

transaction was designed to conceal as required by § 1956(a)(1)(B)(i). “Evidence

that may be considered when determining whether a transaction was designed to

conceal includes, among others, statements by a defendant probative [o]f intent to

conceal; unusual secrecy surround[ing] the transaction; structuring the transaction

in a way to avoid attention; depositing illegal profits in the bank account of a

legitimate business; highly irregular features of the transaction; using third parties

to conceal the real owner; a series of unusual financial moves cumulating in the

transaction; or expert testimony on practices of criminals.” Id. at 1213 n.18

(emphasis omitted).

12

Magluta paid his lawyers with checks written on an Israeli bank account

held in a fictitious name. The several transfers of cash between Magluta

associates, the movement of the cash from Miami to New York to Israel, and the

use of a foreign account held in a false name are “a series of unusual financial

moves” which culminated in Magluta writing the checks. See id. There thus was

an air of “unusual secrecy surround[ing] the transaction[s].” See id. Magluta’s use

of his associates, as well as the fictitious “Leonard Friedman,” demonstrate his use

of “third parties to conceal the real owner” of the money in the foreign account.

See id. The final transaction itself—Magluta writing checks on a foreign account

held in a false name—is “highly irregular.” See id.

In sum, Magluta went to great pains to conceal the fact that he was using

drug proceeds to pay his lawyers. His doing so meets the definition of money

laundering for purposes of § 1956(a)(1)(B)(i), even if the final transfer of the

laundered proceeds was also for Magluta’s personal benefit. See Majors, 196 F.3d

at 1213 & n.18; cf. United States v. Abbell, 271 F.3d 1286, 1298 (11th Cir. 2001)

(“We believe it is enough for [§ 1956(a)(1)(B)(i)] that [the] Defendants engaged in

transactions from which Rodriguez-Orejuela received a benefit (and moneys were

paid on behalf of Rodriguez-Orejuela) while concealing that Rodriguez-Orejuela

was the source of the funds.”). Magluta’s convictions on the substantive money

13

laundering counts stand.

III.

Magluta’s third major contention is that his conviction for obstruction of

justice through juror bribery must be reversed because the district court erred in

admitting two out-of-court statements made by Miguel Moya, who had been the

jury foreman in the 1996 trial. The government used those statements to prove that

Magluta had bribed Moya to produce an acquittal in that earlier case.

The first of the two statements in question was made by Moya to undercover

FBI Agent Joaquin Garcia in a recorded conversation that took place in July 1998.

In that conversation Garcia told Moya that he had been sent by Magluta (and

Magluta’s co-defendant in the 1996 trial, Augusto Falcon) to ensure that Moya

kept quiet about the bribe he had received two-and-a-half years earlier. After

prodding by Garcia, Moya acknowledged having accepted that bribe from Magluta

and his co-defendant Falcon.4 Moya assured Garcia that only his wife and parents

knew he had received the bribe money, and he promised Garcia that he would not

cooperate with authorities.

The court admitted Moya’s statements as non-hearsay statements of a co-

4

We have no way of knowing exactly how large the bribe was that Moya received. The

record does show, however, that although Moya and his family were of modest means, they

made $330,000 in cash expenditures and bank deposits in the twenty-seven months following the

trial.

14

conspirator under Fed. R. Evid. 801(d)(2)(E). “We review the district court’s

evidentiary rulings for an abuse of discretion,” United States v. Hasner, 340 F.3d

1261, 1274 (11th Cir. 2003), and we may overturn findings of fact only if clearly

erroneous, United States v. Griggs, 735 F.2d 1318, 1325 (11th Cir. 1984).

“Under Rule 801(d)(2)(E), statements of co-conspirators made during the

course and in furtherance of the conspiracy are not hearsay. For evidence to be

admissible under Rule 801(d)(2)(E), the government must prove by a

preponderance of the evidence these things: (1) a conspiracy existed; (2) the

conspiracy included the declarant and the defendant against whom the statement is

offered; and (3) the statement was made during the course and in furtherance of the

conspiracy. In determining the admissibility of co-conspirator statements, the trial

court may consider both the co-conspirator’s statements and independent external

evidence.” Hasner, 340 F.3d at 1274. In ruling on the admissibility of the

conversation between Moya and Agent Garcia under Rule 801(d)(2)(E), the district

court found that:

[T]his conspiracy continued to exist up through July of 1998, when this

statement was made. The Court does find that although Mr. Moya’s

participation was in just one component, he was a participant in the overall

scheme. He would not have known all of the ins and outs of the conspiracy

that’s charged in this Indictment, but . . . in agreeing to . . . accept[] the bribe

for convincing the other jurors to return a judgment of acquittal, he is still a

member of the conspiracy.

15

He sat and listened to the evidence in the case . . . that Mr. Falcon and

Mr. Magluta were participants in a major drug trafficking organization; that

the monies that were connected with them were proceeds of a major drug

trafficking organization . . . . I find that the government has proved by a

preponderance of the evidence that . . . [Moya] knew that the [bribe] money

was from a specified unlawful activity and, therefore, he took actions to

cover up his sudden found wealth in creating all of the various gifts of funds

to his relatives and near relatives and friends . . . . So his participation and

his actions continue to evidence efforts to cover up his criminal acts. The

law does find that such conduct of covering up the acts are part and parcel of

the conspiracy.

Magluta argues that if he and Moya conspired to obstruct justice through

juror bribery, the central purpose of that conspiracy ended, at the latest, once the

verdict in the earlier case was rendered in February 1996. As a result, according to

Magluta, Moya’s conversation with the undercover FBI agent, which took place in

July 1998, was not made during the course of the juror bribery conspiracy but

instead came well after the conspiracy had ended.

In Grunewald v. United States, 353 U.S. 391, 77 S. Ct. 963 (1957), the

Supreme Court held that: “[A]fter the central criminal purposes of a conspiracy

have been attained, a subsidiary conspiracy to conceal may not be implied from

circumstantial evidence showing merely that the conspiracy was kept a secret and

that the conspirators took care to cover up their crime in order to escape detection

and punishment.” 353 U.S. at 401–02, 77 S. Ct. at 972. The Court also recognized

that “a vital distinction must be made between acts of concealment done in

16

furtherance of the main criminal objectives of the conspiracy, and acts of

concealment done after these central objectives have been attained, for the purpose

only of covering up after the crime.” Id. at 405, 77 S. Ct. at 974.

The central purpose of the juror bribery conspiracy between Magluta and

Moya was to secure an acquittal for Magluta in return for cash. Once the verdict

was rendered, that central purpose was completed. Although it was mutually

understood that Magluta and Moya would conceal the bribe, in the Supreme

Court’s words, those “[a]cts of covering up, even though done in the context of a

mutually understood need for secrecy, cannot themselves constitute proof that

concealment of the crime after its commission was part of the initial agreement

among the conspirators.” Id. at 402, 77 S. Ct. at 972. In light of Grunewald, we

cannot infer that a subsidiary conspiracy to conceal the bribe Magluta had given

Moya existed for almost two-and-a-half-years after the bribery agreement had been

made and carried out. See id. at 401–02, 77 S. Ct. at 972. As a result, Moya’s

statement to Agent Garcia was not in furtherance of the conspiracy to obstruct

justice through juror bribery.

The government argues, and the district court’s findings indicate it believed,

that Moya’s statements are admissible under Rule 801(d)(2)(E) on the ground that

it was in furtherance of another conspiracy. Under this theory, there was a

17

conspiracy between Magluta and Moya to launder drug proceeds in violation of

§ 1956(a)(1)(B)(i). That conspiracy would have begun when Moya accepted the

bribe from Magluta, which was paid out of illegal drug proceeds, and it was still

ongoing at the time Moya assured Agent Garcia that he would keep quiet about it.5

We will assume for the moment that Moya’s acceptance of the bribe made

him and Magluta participants in a conspiracy to launder drug proceeds under 18

U.S.C. § 1956(a)(1)(B)(i). Cf. Abbell, 271 F.3d at 1298 (affirming the defendant

lawyers’ convictions for violating § 1956(a)(1)(B)(i) where the lawyers gave

money to certain inmates while concealing that the money was being paid at the

direction of and on behalf of the lawyers’ client). Even with that assumption the

argument fails under Grunewald, because Moya’s statements to Agent Garcia were

not made during the course of and in furtherance of that money laundering

conspiracy.

As we mentioned before, Moya’s statements to Agent Garcia occurred two-

and-a-half years after Moya accepted the bribe. Assuming Magluta’s payment of

the bribe to Moya constituted a conspiracy between them to launder drug proceeds

5

That this conspiracy was not charged in the indictment in this case does not matter.

United States v. Salisbury, 662 F.2d 738, 740 (11th Cir. 1981) (“Statements of a coconspirator

may be introduced into evidence even though the government has not charged [the

coconspirator] with conspiracy as long as the existence of the conspiracy has been properly

established.”).

18

in the amount of the bribe, the evidence does not support an inference that the

initial conspiracy included a “subsidiary conspiracy to conceal” which was

ongoing so long after the bribe—the single act of money laundering—had

occurred. See Grunewald, 353 U.S. at 401–02, 77 S. Ct. at 972.

Moya’s statements to Agent Garcia do constitute an attempt to keep any

initial conspiracy secret, but that attempt is not enough by itself to establish the

coverup two-and-a-half years later was part of the initial agreement between

Magluta and Moya. As the Supreme Court explained: “[E]very conspiracy is by its

very nature secret; a case can hardly be supposed where men concert together for

crime and advertise their purpose to the world. And again, every conspiracy will

inevitably be followed by actions taken to cover the conspirators’ traces.

Sanctioning the government’s theory would for all practical purposes wipe out the

statute of limitations in conspiracy cases, as well as extend indefinitely the time

within which hearsay declarations will bind co-conspirators.” Id. at 402, 77 S. Ct.

at 972.

That Moya tried to hide the source of the funds he used to make purchases

for himself and his family does not bring those acts into any earlier drug

laundering conspiracy between Magluta and Moya. Whatever crimes Moya may

have committed by concealing the source of the funds that he used to pay for his

19

purchases, there is no evidence to suggest that making them was part of the initial

conspiracy between him and Magluta. Otherwise, the government could have

charged Magluta with money laundering for every purchase Moya made with the

bribe proceeds; that would not be a reasonable interpretation of the conspiracy and

money laundering laws. Because the later transactions that Moya engaged in were

not part of the “initial agreement” between him and Magluta, see Grunewald, 353

U.S. at 402, 77 S. Ct. at 972, they do not extend the life of the money laundering

conspiracy that began in January of 1996 to include Moya’s July 1998 statements

to Agent Garcia. As a result, the district court should not have admitted Moya’s

statements to Agent Garcia pursuant to Rule 801(d)(2)(E).

The government argues that, even if the district court erred by admitting

Moya’s statements to Agent Garcia, the error was harmless because it presented

other evidence to support the obstruction of justice through juror bribery

conviction. As we have previously made clear, a “non-constitutional error is

harmless if, viewing the proceedings in their entirety, a court determines that the

error did not affect the verdict, ‘or had but very slight effect.’” United States v.

Hornaday, 392 F.3d 1306, 1315 (11th Cir. 2004) (citations omitted) (quoting

Kotteakos v. United States, 328 U.S. 750, 762, 764, 66 S. Ct. 1239, 1246, 1248

(1946)). Furthermore, “[i]f one can say ‘with fair assurance . . . that the judgment

20

was not substantially swayed by the error,’ the judgment is due to be affirmed even

though there was error.” Id. at 1315–16 (quoting Kotteakos, 328 U.S. at 764, 66 S.

Ct. at 1248). The government has not met this standard.

Moya’s statements to Agent Garcia constituted the evidence directly tying

Magluta to the bribe. Even if we were to consider Moya’s statement to his then-

wife (the other statement that Magluta asserts was erroneously introduced), we are

left only with the conclusion that Moya was bribed, not that it was Magluta who

paid the bribe.6 Although common sense would suggest that Magluta was

involved, Magluta was being tried with a co-defendant who had as much reason to

bribe jurors as Magluta did. With no other direct evidence linking Magluta to the

bribe, we “cannot say, with fair assurance, . . . that the judgment was not

substantially swayed by the error.” See Kotteakos, 328 U.S. at 765, 66 S. Ct. at

1248. The error, therefore, was not harmless. For these reasons, Magluta’s

conviction for obstruction of justice through juror bribery is due to be reversed.7

6

Moya’s ex-wife testified that on January 31, 1996 (which was during Magluta’s

previous trial) at approximately six o’clock in the evening Moya received a telephone call at

home from a man named Eddy. In response to the call Moya left the house, and two to three

hours later came back carrying a brown paper bag. Ms. Moya asked him what was in it. He

showed her the contents of the bag: bundles of cash. She testified that when she asked Moya

what the money was for, “[h]e said it was given to him in order to persuade the jury in the trial

that he was on.” According to Ms. Moya, when she asked her husband why he had taken the

bribe, Moya told her that “[h]e had to do it,” and “he couldn’t get out of what he was doing.”

She did not testify that Magluta was mentioned.

7

In light of this conclusion, we have no reason to address the issue Magluta has raised

involving the admission of the statements Moya made to his wife at the time.

21

IV.

Magluta’s fourth contention is that his conviction on the obstruction of

justice through juror bribery count must be reversed for an additional reason. He

argues that the district court erred when it failed to instruct the jurors in this case

not to convict on this count unless they unanimously agreed on which juror or

jurors Magluta had bribed in the earlier case. Because we have already decided to

reverse the conviction on this count for other reasons, we need not address this

contention any further.

V.

Magluta’s fifth contention is that the district court erred by denying his

motion to suppress certain documents seized on October 15, 1996. Those

documents were found inside a box that was seized without a warrant from the

trunk of a car driven by Marilyn Bonachea, an associate of Magluta. Magluta

argues that the officers lacked probable cause to search the box of documents and,

as a result, his Fourth Amendment rights were violated.

On October 15, 1996, which was after Magluta was acquitted in the first

trial, Guy Lewis, then an Assistant United States Attorney in Miami, received an

anonymous telephone call. The caller advised Lewis that later that morning

Bonachea would be transporting certain documents from her home to the office of

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Magluta’s lawyer. Lewis knew Bonachea was a close associate of Magluta. The

caller said that the documents Bonachea would be transporting contained

information relating to the ongoing Magluta investigation, including information

about how drug money had been used to bribe individuals to give false testimony

in the earlier trial. The caller said that Bonachea would be leaving her home in

south Dade County at a specified time and gave the address. The caller also told

Lewis that Bonachea would be driving a rental car, which the caller described, and

that Bonachea commonly smoked marijuana when driving.

This was the second call AUSA Lewis had received from this anonymous

caller. The previous call had provided Lewis with an address for Bonachea’s son

at Bonachea’s home, the same address from which the caller said that Bonachea

would be leaving later that day.

Immediately after receiving the second call, AUSA Lewis contacted Special

Agent Jane Anglestead of the Drug Enforcement Agency and Sergeant Robert

Fielder of the Miami Police Department, both of whom were investigating Magluta

and knew of his intimate relationship with Bonachea. Anglestead had been

involved in prosecutions of Magluta since 1991. She knew from Bonachea’s

testimony in those cases that she had been associated with Magluta for a long time.

Anglestead was also aware that at some time in the 1980s Bonachea had received

23

approximately $585,000 from Magluta for the purchase of a house in South

Florida, a house that was located adjacent to Magluta’s property. Anglestead knew

that two of the checks used for the house had come from a Bahamian account that

Magluta maintained under another name. Furthermore, Anglestead was aware that

Bonachea had frequently visited Magluta while he was incarcerated in a federal

detention center awaiting trial. Based on this knowledge, Anglestead surmised that

Bonachea might very well have the kind of documents described by the

anonymous caller.

Shortly after being told by AUSA Lewis of the anonymous call earlier in the

day, Agent Anglestead went to Bonachea’s residence. The residence was at the

address the caller had said it was. There Anglestead saw a rental vehicle matching

the caller’s description, and watched Bonachea leave the house within twenty

minutes of the time that the caller had predicted. Florida Highway Patrol officers,

who had been contacted by Sergeant Fielder, followed Bonachea.

After determining that Bonachea was speeding, the officers pulled her over.

They confirmed with her that the car was a rental. One trooper noticed what

appeared to be marijuana seeds in the ashtray. As a result, he called in a drug dog

who, after examining the car, alerted to the console area where two marijuana

cigarettes were then found. Bonachea was arrested and the trooper inventoried the

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vehicle, noting the parcels of paperwork in the trunk. Sergeant Fielder then arrived

at the scene and informed Bonachea that he was going to inspect the vehicle.

Bonachea objected, claiming that there were documents in the trunk stamped

“attorney-client privilege.” Fielder proceeded to open the trunk and found a

cardboard box containing, among other things, what he recognized as drug ledgers.

The magistrate judge’s report recommended that Magluta lacked standing to

object to any alleged violation of the Fourth Amendment and that, in any event,

law enforcement had probable cause to search the trunk. The district court, with

the exception of two factual details not relevant here, adopted the magistrate

judge’s factual findings and legal conclusions and denied Magluta’s motion to

suppress.

Magluta challenges both the district court’s decision that he lacked standing

and its decision that law enforcement had probable cause to search Bonachea’s

trunk. “[W]e apply a mixed standard of review to the district court’s denial of the

suppression motion, reviewing the court’s findings of fact for clear error and its

application of the law to those facts de novo.” United States v. Tinoco, 304 F.3d

1088, 1116 (11th Cir. 2002). Because we find that the district did not err in

determining that the law enforcement officers had probable cause to search the

contents of Bonachea’s car, we will assume, without deciding, that Magluta has

25

standing to allege a Fourth Amendment violation.

In most circumstances, for a search that is not based on consent to comply

with the Fourth Amendment, law enforcement must obtain a warrant supported by

probable cause. There are, however, exceptions. Under the automobile exception

to the warrant requirement, officers can search any container in an operational car

without a warrant as long as they have probable cause to believe that the container

holds evidence of a crime. California v. Acevedo, 500 U.S. 565, 579–80, 111 S.

Ct. 1982, 1991 (1991); United States v. Watts, 329 F.3d 1282, 1286 (11th Cir.

2003). Because there is no dispute that the car Bonachea was driving was

operational, our inquiry is limited to determining whether the officers had probable

cause to believe that the box in her car contained evidence of a crime. See Watts,

329 F.3d at 1286. “Probable cause for a search exists when under the totality of

the circumstances ‘there is a fair probability that contraband or evidence of a crime

will be found in a particular place.’” United States v. Goddard, 312 F.3d 1360,

1363 (11th Cir. 2002) (quoting Illinois v. Gates, 462 U.S. 213, 238, 103 S. Ct.

2317, 2332 (1983)).

Under the circumstances of this case, the anonymous tip received earlier in

the same day is entitled to substantial weight in the analysis of whether law

enforcement had probable cause to believe that the box in Bonachea’s trunk

26

contained evidence of criminal activity. See generally Gates, 462 U.S. at 237–39,

103 S. Ct. at 2332–33 (noting that anonymous tips are considered in the probable

cause determination). In addition to notifying law enforcement that Bonachea’s

car would be carrying documents evidencing drug activity, the caller provided the

correct location of Bonachea’s residence, an accurate description of the rental car

she would be driving, and predicted that Bonachea would depart within twenty

minutes of the time she actually did. The caller was also correct about Bonachea’s

smoking marijuana in the car. (A fact discovered after the car was lawfully stopped

for speeding.) All of this information from the caller was corroborated by law

enforcement officers before the box in the trunk of Bonachea’s car was searched.

See id. at 241, 103 S. Ct. at 2334 (“Our decisions applying the totality-of-the-

circumstances analysis . . . have consistently recognized the value of corroboration

of details of an informant’s tip by independent police work.”).

Furthermore, on a previous occasion, this same caller had provided AUSA

Lewis with the address where Bonachea’s son was staying. That was the same

address that Bonachea left from on October 15, 1996, as the caller had said she

would, and at about the time the caller had said. The law enforcement officers

were also aware of Bonachea’s intimate relationship with Magluta, that she knew

his organization, and that she often visited him in jail. From these facts, they

27

reasonably inferred that Bonachea was a person likely to be holding for Magluta

the kind of documents described by the anonymous caller. All of these pieces of

information bolster the caller’s credibility.

Based on the totality of the circumstances leading up the search, we

conclude that the district court did not err in holding that the law enforcement

officers had probable cause to believe that the box located in the trunk of

Bonachea’s rental car contained evidence of a crime.

VI.

The remainder of Magluta’s contentions attack his 205-year sentence.

Because we have already decided that Magluta’s conviction for obstruction of

justice through juror bribery must be reversed, on remand it will be necessary for

the district court to strike the 120-month sentence imposed for that count. Striking

that 120-month sentence will leave Magluta with a sentence of 195 years

imprisonment.

Magluta contends that this remaining portion of his sentence must be

vacated for other reasons. For one thing, he argues that the district court erred in

determining that the value of the drug money he had laundered was

$35,498,957.80, a determination that affected his total offense level. According to

Magluta, the jury’s special forfeiture verdict of $15 million should have been a cap

28

on the value of the funds that the district court could find were involved in the

money laundering scheme for purposes of calculating his specific offense

characteristics pursuant to U.S.S.G. § 2S1.1(b)(2) (2000). If Magluta is correct

about this, his total offense level should have been 41 instead of 43. See U.S.S.G.

§ 2S1.1(b) (2000).

Magluta casts this argument in collateral estoppel terms, saying that “[t]he

district court violated principles of collateral estoppel by refusing to accept the

jury’s special forfeiture verdict of $15 million as a cap on the ‘value of the funds’

laundered.” Appellant’s Initial Br. at 51. The court was collaterally estopped,

according to Magluta, because the jury’s forfeiture inquiry matches exactly the

§ 2S1.1(b)(2) inquiry the judge was to make at sentencing, and the same

preponderance of the evidence standard of proof was applicable to the jury and the

judge.

We need not decide if the district court erred in calculating Magluta’s

offense level using an amount greater than the $15 million figure that the jury

found in its special forfeiture verdict, because we would not vacate the sentence

even if the court did. Having reviewed the record, we are convinced that any error

of that nature was harmless. See United States v. Hersh, 297 F.3d 1233, 1248

(11th Cir. 2002) (sentencing errors are reviewed for harmless error). During the

29

course of the sentencing hearing, the district court stated: “Should the Eleventh

Circuit determine that the Court’s reasoning [in arriving at the guidelines range] is

in error, I would employ an upward departure to impose a sentence outside of the

Guideline range under the applicable law to reach the same result. And that is a

departure to offense level 43 requiring a life sentence.” Sentencing Tr. at 691. In

other words, the district court said that it would get to an offense level of 43 one

way or the other.

The district court recognized that it “must impose a sentence within the

Sentencing Guidelines unless [it] determines that there exists an aggravating or

mitigating circumstance of a kind or to a degree not adequately taken into

consideration by the Sentencing Commission in formulating the Guidelines.”

Sentencing Tr. at 692. After discussing the permissible grounds for upward

departures, the district court concluded that, if necessary to get to an offense level

of 43, an upward departure would be warranted in this case based on “the anomaly

created by the obstruction” resulting in Magluta’s 1996 acquittal, as well as other

non-specified factors that were present in this case. Apparently, the anomaly the

district court was referring to had to do with the fact that, through his illegal

conduct, Magluta escaped the punishment he deserved for the criminal conduct he

was tried for in his 1996 trial. In summing up, the district court stated that “the

30

bribery of jurors, the bribery of witnesses, so goes to the heart of our criminal

justice system which is the foundation of our democracy that the egregious nature

of the offense here could only be recognized by an upward departure, and that the

present Sentencing Guidelines do not take it into consideration, and that for those

reasons the Court would upward depart.”8 Sentencing Tr. at 694–95.

If the district court had upwardly departed, we would review that decision

only for abuse of discretion. United States v. Melvin, 187 F.3d 1316, 1320 (11th

Cir. 1999). Furthermore, “[b]ecause the district courts see so many Guidelines

cases, district courts have an institutional advantage over appellate courts in

determining whether a case is outside the heartland, and thus their decisions are

entitled to substantial deference.” Id. (citing Koon v. United States, 518 U.S. 81,

98, 116 S. Ct. 2035, 2046 (1996)). With that in mind, we cannot say that the

district court would have abused its discretion in upwardly departing. See

8

Our reversal of Magluta’s conviction for obstruction by bribing a juror does not

undermine the factual premise of the district court’s preemptive departure decision. Our reversal

was based on our conclusion that the juror’s out-of-court statements to the undercover agent

were hearsay; that is, the statements did not fit within Fed. R. Evid. 801(d)(2)(E). However, it is

well-established that, in sentencing, a district court can consider hearsay even if it was not

admissible in determining guilt, so long as there are sufficient indicia of reliability. United

States v. Wilson, 183 F.3d 1291, 1301 (11th Cir. 1999) (“A court may consider any information

(including hearsay), regardless of its admissibility at trial, in determining whether factors exist

that would enhance a defendant’s sentence, provided that the information is sufficiently

reliable.”); U.S.S.G. § 6A1.3(a) (“[T]he court may consider relevant information without regard

to its admissibility under the rules of evidence applicable at trial, provided that the information

has sufficient indicia of reliability to support its probable accuracy.”); see also 18 U.S.C.A.

§ 3661. The tape-recorded statements of the juror to the undercover agent clearly have sufficient

indicia of reliability for this purpose.

31

U.S.S.G. § 5K2.0 (describing permissible grounds for upward departures). As a

result, any two-point error in Magluta’s offense level was harmless.

Magluta also contends that the district court erred in calculating his criminal

history score. Specifically, he asserts that the district court impermissibly

considered his previous convictions as “prior sentences” under U.S.S.G.

§ 4A1.1(a). This is error, Magluta says, because his previous convictions were all

“part of the instant offense” under § 4A1.2(a)(1), even though they occurred before

this trial began. If Magluta were correct about this, his criminal history score was

miscalculated. We need not decide whether this argument has any merit, for much

the same reason we did not have to decide whether Magluta’s argument about his

offense level had any merit. The district court gave a valid basis for an upward

departure to an offense level of 43 and that departure would not have been an

abuse of discretion. Because an offense level of 43 mandates a life sentence

regardless of the criminal history category, U.S.S.G. ch. 5, pt. A, any error in the

calculation of Magluta’s criminal history score is harmless.

Magluta’s next assertion is that the district court erred by ordering each of

the sentences for his convictions to run consecutively pursuant to U.S.S.G.

§ 5G1.2(d). He concedes that this position is foreclosed by our decision in United

States v. Davis, 329 F.3d 1250 (11th Cir. 2003) (per curiam). That decision held

32

§ 5G1.2(d) requires that sentences run consecutively to the extent necessary to

reach the punishment range set by the guidelines. Id. at 1253–54. Magluta argues,

however, that Davis has been invalidated by United States v. Booker, 543 U.S.

___, 125 S. Ct. 738 (2005). It has not been. Booker invalidated neither § 5G1.2(d)

nor Davis. Instead, as one of our post-Booker decisions explained, Booker held

that “the Sixth Amendment right to trial by jury is violated where under a

mandatory guidelines system a sentence is increased because of an enhancement

based on facts found by the judge that were neither admitted by the defendant nor

found by the jury.” United States v. Rodriguez, 398 F.3d 1291, 1298 (11th Cir.)

(emphasis omitted), cert. denied, ___ S. Ct. ___, 2005 WL 483174 (June 20, 2005).

The Booker decision also established that it is “error for the district court to

sentence [a defendant] under a mandatory Guidelines scheme, even in the absence

of a Sixth Amendment enhancement violation.” United v. Shelton, 400 F.3d 1325,

1330–31 (11th Cir. 2005). To remedy the situation, the Court in Booker

effectively rendered the guidelines advisory. See Booker, 543 U.S. at ___, 125 S.

Ct. at 764. The Booker decision affected Davis only to the extent that all

guidelines decisions are now advisory. Davis’ holding as to the proper application

of § 5G1.2(d) remains correct and binding.

Magluta also makes the broader argument that he is entitled to resentencing

33

under Booker because he was sentenced under a mandatory guidelines system.

This Booker argument was raised for the first time in Magluta’s reply brief. As we

indicated in our previous order granting in relevant part the government’s motion

to strike the portions of Magluta’s reply brief raising this Booker argument, United

States v. Magluta, No. 03-10694 (11th Cir. Nov. 17, 2004), an appellant may not

raise an issue for the first time in a reply brief. See United States v. Vanorden, ___

F.3d ___, 2005 WL 1531151, *1 (11th Cir. June 30, 2005) (per curiam); United

States v. Dockery, 401 F.3d 1261, 1262–63 (11th Cir. 2005) (per curiam); United

States v. Ardley, 242 F.3d 989, 990 (11th Cir. 2001) (per curiam). As a result,

Magluta has abandoned this argument.

However, even if Magluta’s Booker argument had not been abandoned

because of his failure to raise it in his initial brief, he would still not be entitled to

resentencing. Having failed to raise that issue in the district court, our review

would be only for plain error. Rodriguez, 398 F.3d at 1298. As part of satisfying

the plain error test, a defendant “must establish a reasonable probability that if the

district court had considered the guidelines range it arrived at using extra-verdict

enhancements as merely advisory, instead of mandatory, and had taken into

account any otherwise unconsidered § 3553 factors, the court would have imposed

a lesser sentence than it did.” Id. at 1302. There is no evidence at all in the record

34

to suggest that the district court would have imposed a lesser sentence than it did

had it applied the guidelines in an advisory instead of mandatory manner. To the

contrary, the court made it abundantly clear that it would have given Magluta a life

sentence regardless.

VII.

For the foregoing reasons, all of Magluta’s convictions are AFFIRMED,

except for the one for obstruction of justice through juror bribery, count 8, which is

REVERSED. Magluta’s sentence is VACATED, and the case is REMANDED.

If the government elects to dismiss count 8 instead of retry Magluta on that

charge, or if a retrial on that count occurs and he is acquitted, the district court

shall, at its discretion, either reimpose Magluta’s sentence but with a reduction of

120 months as a result of there being no conviction for count 8, or the court may

resentence Magluta on all the other counts for which he remains convicted. If the

government elects to retry Magluta on count 8 and he is re-convicted of that

charge, the district court shall then re-sentence him on all the counts.

AFFIRMED in part, REVERSED in part, VACATED in part, and

REMANDED.

35