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United States of America v. Israel Del Toro-Barboza

March 14, 2012


Appeal from the United States District Court for the Southern District of California Thomas J. Whelan, Senior District Judge, Presiding D.C. No. 3:09-cr-03601-W-1, D.C. No. 3:09-cr-03601-W-2

The opinion of the court was delivered by: Gould, Circuit Judge:



Argued and Submitted December 6, 2011-Pasadena, California

Before: John T. Noonan, Ronald M. Gould, and Sandra S. Ikuta, Circuit Judges.

Opinion by Judge Gould


Adin and Israel Del Toro-Barboza ("Defendants") appeal their convictions for bulk cash smuggling under 31 U.S.C. § 5332 and failure to file reports on exporting monetary instruments under 31 U.S.C. § 5324. Border agents found a bag containing $500,000 in cash in a box under a sheet in the back of defendants' van when they were making an early morning border crossing. No declaration of possession of cash exceeding $10,000 had been made. Although defendants asserted they had no knowledge this money was in their van, they were charged with cash smuggling and not filing required reports about exporting money, and were convicted after a four-day jury trial. The district court sentenced Israel to 46 months imprisonment and Adin to 41 months. Defendants appeal their convictions and sentences, contending that there was insufficient evidence to convict, that there was instructional error, that their convictions violated the double jeopardy clause, that the indictments should have been dismissed because the government had destroyed evidence, that prosecutorial misconduct and false comments in argument give them a right to new trial, that there was cumulative error, and that the district court misapplied the sentencing guidelines. We reject all these contentions, and affirm.

I. Background

Defendants worked for their parents who run a shoe store in Ensenada, Mexico. They regularly drove to Southern California to pick up merchandise from suppliers, which they would take back to Mexico for their parents and other merchants. One seller of merchandise in San Ysidro, California, Jesus Reynosa, testified that Adin came to his store about every two to three weeks to pick up shoes for merchants in Mexico. On September 10, 2009, Adin went to Reynosa's business and picked up a box for a merchant in Mexico.

Two days later, on September 12, 2009, at around 1:30 a.m., Defendants were stopped at the Otay Mesa port of entry as they tried to cross the border from the United States to Mexico. They were driving a white Chevrolet Astro registered to Adin (Israel was driving, and Adin was the passenger). Officers Goulart and Parker and Agent Silva conducted Defendants' stop and search. According to Officer Goulart, traffic was slow, which is not unusual because Otay Mesa is a slower port of entry than San Ysidro. Officer Goulart asked Defendants if they were carrying over $10,000 in cash, and they responded that they were not. Israel was asked whether or not he had any cash at all on his person, to which he responded, "no." No one asked Adin whether he had any cash on his person. There are signs posted in English and Spanish telling travelers that currency over $10,000 must be declared to U.S. Customs.

While speaking to Defendants, Officer Goulart noticed that there was a black sheet covering something in the back of the van. He asked Israel what was in the van, and Israel responded that it contained boxes of shoes. When asked why the black sheet was covering the boxes, Israel said that it was so Mexican customs officials would not see the boxes. Defendants' brother, Jose Angel Del Toro-Barboza, testified that, when importing merchandise into Mexico, they used the sheet so Mexican officials would not stop them at the Mexican border. If stopped by Mexican officials, the delay was lengthy and involved paying unpredictable taxes. This tax is also why they always carry cash on them as they cross between the borders.

Defendants were sent to the secondary inspection area and were asked to stand by a fence while the border patrol officers searched the van. The van was filled with about 38 brown cardboard boxes of varying sizes, all sealed. There were names written on the boxes. Officer Goulart inspected one box and found shoes. In other boxes he also found hair extensions and paint ball guns. Officer Parker pulled one box out of the van because it was significantly heavier than the others around it. Officer Goulart testified that he saw no writing on that box at all and that it was sealed. Officers opened the box and found a black duffel bag, which contained large bundles of U.S. currency. The duffel bag contained $500,087 in cash.

Defendants were arrested. One cell phone was found on Israel and two were found on Adin. There were four missed calls that morning on one of Adin's phones-at 2:13, 2:14, 2:21, and 2:26 a.m.-all from the same Mexican number. Israel's phone also had one incoming call at 2:10 a.m. There was no evidence presented as to whether the calls to both phones were from the same number. Israel had $943 in cash on him, and Adin had $340 in cash.

Defendants were indicted on September 30, 2009. Count One charged them with violating 31 U.S.C. §§ 5332 and 5316 (bulk cash smuggling). Count Two charged them with violating 31 U.S.C. §§ 5324(b)(1) and (c) and 5316 (evading reporting requirements). Both defendants were also indicted on an aiding and abetting theory. Section 5316 creates a requirement to report currency but attaches no criminal penalty for failing to do so. Sections 5332 and 5324 incorporate § 5316 and criminalize the failure to report.

Before trial, Defendants moved to preserve the box containing the money and the money found therein. The district court granted the motion on November 23, 2009. Defendants then filed motions to dismiss because the currency and box were not preserved. On January 25, 2010, the district court held a hearing on the motions to dismiss, and denied the motions, concluding that the evidence was not exculpatory.

During the trial, Special Agent Cornwall testified that there were no markings on the box that had contained the money, but he did not pick it up to inspect it. Special Agent Cornwall testified that he did not view the box as holding any evidentiary value. Officer Goulart testified that the box with the money was the only box with no writing.

A jury trial commenced on March 2, 2010 and lasted four days. After the government concluded its case-in-chief, Defendants moved for a judgment of acquittal under Rule 29, and they renewed their motions after the defense rested. The district court denied these motions. The jury returned a verdict of guilty on all counts as to both defendants. The district court sentenced Adin to 41 months on each count, to be served concurrently, and three years of supervised release. It sentenced Israel to 46 months on each count, to be served concurrently, and three years of supervised release.

II. Sufficiency of the Evidence


Defendants argue that there was insufficient evidence to support their convictions under §§ 5324 and 5332 because, not knowing the bag of money was hidden in the van, they did not have the specific intent the statutes required. We review de novo a district court's determination that sufficient evidence supports a conviction. United States v. Tatoyan, 474 F.3d 1174, 1177 (9th Cir. 2007).

To satisfy due process in the conviction of a defendant, there must be "proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged." In re Winship, 397 U.S. 358, 364 (1970). Given the challenge to the sufficiency of the evidence, "the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319 (1979); see also United States v. Nevils, 598 F.3d 1158, 1163-64 (9th Cir. 2010) (en banc).

To apply this standard, we follow a two-step approach. First, all evidence must be viewed in the light most favorable to the prosecution, and, when "faced with a record of historical facts that supports conflicting inferences," a reviewing court "must presume-even if it does not affirmatively appear in the record-that the trier of fact resolved any such conflicts in favor of the prosecution, and must defer to that resolution." Jackson, 443 U.S. at 326; see also Nevils, 598 F.3d at 1164. Second, looking at the evidence in this manner, we must determine whether the evidence is adequate to allow "any rational trier of fact [to find] the essential elements of the crime beyond a reasonable doubt." Jackson, 443 U.S. at 319; see also Nevils, 598 F.3d at 1164. "At this second step, however, a reviewing court may not ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt, only whether any rational trier of fact could have made that finding." Nevils, 598 F.3d at 1164 (internal quotations and citations omitted).


[1] Count One of the indictments charged Defendants with bulk cash smuggling under § 5332, which states:

Whoever, with the intent to evade a currency reporting requirement under section 5316, knowingly conceals more than $10,000 in currency or other monetary instruments . . . in any conveyance . . . and . . . attempts to transport or transfer [it] from a place within the United States to a place outside of the United States . . . shall be guilty of a currency smuggling offense.

§ 5332. Section 5316 requires a person who knowingly transports monetary instruments of more than $10,000 across the border to file a report. A defendant "need only have the 'intent' to violate § 5316 to be guilty of bulk cash smuggling." Tatoyan, 474 F.3d at 1179. This requires only that the "defendant act deliberately and with knowledge." Id. (internal quotations and citations omitted).

Count Two of the indictments charged Defendants with intent to evade a currency reporting requirement under § 5324(c), which provides that "[n]o person shall, for the purpose of evading the reporting requirements of section 5316 . . . fail to file a report required by section 5316, or cause or attempt to cause a person to fail to file such a report . . . ."*fn1

[2] Both crimes are specific intent crimes and are committed only where Defendants knew of the reporting require- ments and knew that they were transporting more than $10,000 in cash. Defendants argue that although evidence supported that they knew they were transporting contraband, there was insufficient evidence to prove that they knew the contraband was more than $10,000 in cash because no logical inference can be made that they knew they were transporting money. We disagree.

In Juan H. v. Allen, a fifteen-year-old was convicted of first-degree murder and attempted murder on an aiding and abetting theory when his brother shot and killed a man and shot at another man he thought had earlier that evening fired shots at his family's trailer. Juan H. v. Allen, 408 F.3d 1262, 1266-69 (9th Cir. 2005). We held that the evidence was insufficient to show that Juan H. knew his brother planned to commit murder, intended to encourage his conduct, and affirmatively acted to aid the murders. Id. at 1276. After the shooting, Juan H. had fled from the scene to his parents' trailer, and, when questioned by the police, he gave a false alibi stating he had been in the trailer during the shooting. Id. at 1277. The California Court of Appeal made the determination that the untrue statements Juan H. made to the police reflected consciousness of guilt. Id. We held that this was speculative conjecture, because although "we must draw all reasonable inferences in favor of the prosecution, a 'reasonable' inference is one that is supported by a chain of logic, rather than . . . mere speculation dressed up in the guise of evidence." Id. There was no evidence of Juan H.'s motive or intent to help his brother, either direct or circumstantial. Id. at 1279.

[3] Here, though there was no direct evidence showing that Defendants knew they were transporting more than $10,000 in cash, there was sufficient circumstantial evidence, and there was a plausible chain of logic to support the jury's verdict convicting appellants. The evidence showed that both defendants had possession of the vehicle-Israel as the driver and Adin as the registered owner. Adin was the passenger when the border was attempted to be crossed, but Adin drove the van and had picked up boxes two days before the stop at the border. Those boxes were in the van when it was stopped and searched at the border, showing that he had some degree of control over the contents of the van.

[4] There was also circumstantial evidence from which a jury reasonably may have inferred that Defendants knew they were transporting more than $10,000 in cash. An inference is reasonable where it is "supported by a chain of logic, which is all that is required to distinguish reasonable inference from speculation." U.S. v. Begay, ___ F.3d ___, 2011 WL 94566, at *5 (9th Cir. Jan 12, 2011) (en banc) (internal quotations omitted). Here, a rational jury could reasonably have accepted the prosecution's argument that a person would not be expected to trust someone safely to transport that large amount of money, a half million dollars, without telling the Defendants that the box placed in the van was extremely valuable. Moreover, a jury could reasonably have concluded that Defendants knew that the box contained contraband because Defendants placed the box containing the money in the van, the box was the only unmarked box in the van, Defendants had attempted to conceal the boxes from the border officers with a black sheet, they did not tell the officers they were transporting items other than shoes, they crossed the border in the middle of the night instead of at a normal business hour, and a person or persons called Defendants several times in a matter of minutes in the middle of the night after they were delayed for search at the border. Given the high probability that Defendants knew they were smuggling extremely valuable contraband in the box, the jury could therefore have reasonably concluded that the Defendants knew the nature of that contraband. There ...

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