United States v. Cardona

88 F.4th 69

UNITED STATES of America, Appellee, v. Rafael CARDONA, Sr., a/k/a RAFO, Defendant, Appellant.

United States of America, Appellee, v. Isaac Cardona, Defendant, Appellant.

No. 22-1415

No. 22-1416

United States Court of Appeals, First Circuit

December 7, 2023

APPEALS FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS [Hon. Timothy S. Hillman, U.S. District Judge]

Leslie Feldman-Rumpler for appellant Rafael Cardona, Sr.

Jane Elizabeth Lee for appellant Isaac Cardona.

Donald C. Lockhart, Assistant United States Attorney, with whom Joshua S. Levy, Acting United States Attorney, was on brief, for appellee.

Before Gelpí, Selya, and Lynch, Circuit Judges.

LYNCH, Circuit Judge.

Rafael Cardona Sr. and Isaac Cardona were convicted of two conspiracies, one to distribute and possess with intent to distribute cocaine, 21 U.S.C. §§ 841(a)(1), 846, and another to distribute and possess with intent to distribute heroin, id. Isaac Cardona, who is Rafael Cardona Sr.'s son, was also convicted of conspiracy to commit money laundering with intent to promote the carrying on of unlawful activity, 18 U.S.C. §§ 1956(a)(1), (h), on the ground that he had agreed to use the proceeds of unlawful activity -- conspiracy to distribute and possess with intent to distribute cocaine, 21 U.S.C. § 846, and distribution of cocaine, id. § 841(a)(1) -- to procure and resell the heroin in that conspiracy.

Rafael Cardona Sr. contends for the first time on appeal that one of his two conspiracy convictions must be vacated because the two convictions are multiplicitous in violation of the Double Jeopardy Clause. Isaac Cardona argues for the first time on appeal that the money laundering statute under which he was charged is unconstitutionally vague, and so his conviction under that statute should be reversed. Isaac Cardona also argues that insufficient evidence was presented at trial to establish beyond a reasonable doubt that he had the requisite intent for a promotional money laundering conviction, and that the court's failure to properly instruct the jury on this element of the offense was plain error.

We conclude that review is not available for the appellants' belated multiplicity and vagueness arguments because they are covered by Federal Rules of Criminal Procedure 12(b)(3) and 12(c)(3), which preclude appellate review of an untimely Rule 12(b)(3) claim, absent a showing of good cause. We further conclude that sufficient evidence was presented at trial to support Isaac Cardona's money laundering conviction, and that the concededly erroneous jury instructions as to his intent did not affect Cardona's substantial rights.

I.

The following facts are drawn from testimony, surveillance footage, recorded communications between the appellants and other co-conspirators, and other evidence. Because one of the claims addressed in this opinion is a challenge to the sufficiency of the evidence, "we recount the facts in the light most favorable to the verdict." United States v. Paz-Alvarez, 799 F.3d 12, 18 (1st Cir. 2015) (citing United States v. Rodríguez-Soler, 773 F.3d 289, 290 (1st Cir. 2014)).

During 2015 and 2016, David Cruz was a drug dealer based in Westfield, Massachusetts, who obtained cocaine and heroin from sources in Mexico. On August 2, 2016, David Cruz received an eleven kilogram cocaine shipment from Mexican suppliers. Later that day David Cruz sold one and a half kilos of the cocaine to Isaac Cardona. Isaac Cardona paid Cruz a $14,980 cash down payment on the $52,500 purchase price, with the understanding that he would pay Cruz the full amount once he had sold a kilo to a customer with whom he had previously agreed to transact.

On August 15, 2016, Isaac Cardona informed Cruz and Rafael Cardona Sr. that the customer with whom he had made arrangements had stolen the kilo of cocaine. Both Cardonas planned to track the customer down and retrieve the cocaine, but Cruz suggested to them an alternative plan. Cruz proposed that Isaac Cardona transport cash proceeds from Cruz's cocaine sales to California, use that money to buy a kilo of heroin, return with the heroin to Massachusetts, and then sell the heroin in small retail amounts, which would enable Isaac Cardona to pay off his debt to Cruz. Isaac Cardona agreed to this plan, and Cardona Sr. did not object to it. Cruz informed his heroin supplier of the planned purchase and gave Isaac Cardona the supplier's contact number so that Cardona could procure the heroin once he drove Cruz's car to California. The next day, Cruz showed Cardona how to operate the hidden compartment in his Nissan Juke in preparation for the trip. On August 17, both Cardonas discussed repairs that Cruz and Isaac Cardona were having performed on the Juke so that it would pass inspection. Cruz gave Isaac Cardona a box to take to California that contained $12,000 in cash, which was intended as a down payment for the heroin.

From August 20 through August 23, Isaac Cardona traveled to California in Cruz's Juke. During this time, Cardona Sr. encouraged his son by telephone to "[k]eep going over there. Tell [them] to . . . charge the horse more," euphemistically referring to heroin.¹ Cardona Sr. also gave Isaac advice on how he should act when meeting with the heroin suppliers.

Once in California, Isaac informed Cruz that he did not want to drive the Juke back to Massachusetts. Cruz told this to Cardona Sr. in the hope that Cardona Sr. could change his son's mind. Cardona Sr. stated that next time he would make the trip himself. Isaac Cardona parked the Juke, which contained the box of cash, at the airport and flew back to the East Coast.

Around this time, Cardona Sr. asked Cruz to front him a kilo of cocaine in return for $34,000, to be paid after distribution. Cruz declined on the ground that Isaac Cardona still owed him money. Cruz indicated, however, that he would sell cocaine to Cardona Sr. after Cruz had paid off his debt to his suppliers. He told Cardona Sr., "We will leave it for next time then. Say, yes, that I do not have it this time, but for the next one, yes." Cardona Sr. responded, "All right then, that's fine."

Soon thereafter, Cruz travelled to California to purchase heroin from his supplier and retrieve the Juke. Cruz completed the purchase, placed the substance he received -- later revealed to be fentanyl, rather than heroin -- in the Juke's hidden compartment, and arranged for a commercial car carrier to transport the vehicle back to Massachusetts. Cruz informed both Cardonas of his actions during this time. Cruz then flew back to the East Coast.

On September 9, unbeknownst to Cruz and the Cardonas, law enforcement intercepted the car carrier carrying the Juke, and the Juke was impounded. Law enforcement uncovered 994 grams of fentanyl in the hidden compartment of the vehicle.

On September 11, Cruz sent a message to Isaac Cardona: "I told you I picked up Lard and I wanted to know what have you thought about what we're going to do to pay." Cardona responded, "I'll work it and you grab all the profit and square it away." Cruz was arrested in Massachusetts on September 12.

In the days following Cruz's arrest, the Cardonas and Cruz's brother, ignorant of the seizure of Cruz's Juke, spoke about the need to find the Juke and recover the stashed heroin. Cruz's suppliers were demanding information from the Cardonas about Cruz and the location of the heroin. Cardona Sr. asked Isaac Cardona to coordinate with Cruz's suppliers about his efforts to locate the Juke, and Isaac made contact with them.

On November 2, one of Cruz's clients contacted Cardona Sr. Cardona Sr. explained that Cruz had been arrested, and stated, "What did you need? We could talk, man. . . . But uh . . . if [you need] anything we'll hit you up man. You understand? We're here. . . . What you need you know uh . . . write to me or something, to the phone or something, understand?"

II.

On November 2, 2017, a federal grand jury returned a five count superseding indictment against Cardona, Cardona Sr., and three other co-conspirators, whose liability varied as to each of the conspiracy counts. Count One charged Isaac Cardona and Rafael Cardona Sr. with conspiracy to distribute and possess with intent to distribute cocaine, in violation of 21 U.S.C. § 846. Count Two charged Isaac Cardona and Rafael Cardona Sr. with conspiracy to distribute and possess with intent to distribute heroin, in violation of 21 U.S.C. § 846. Count Five charged Isaac Cardona with conspiracy to commit money laundering with intent to promote the carrying on of unlawful activity, in violation of 18 U.S.C. §§ 1956(a)(1), (h), and alleged in particular that Isaac Cardona had agreed to purchase heroin in California to resell in Massachusetts with the knowledge that said financial transaction would involve the proceeds of unlawful narcotics distribution. The remaining counts did not charge the appellants.

On October 18, 2021, each of the Cardonas was convicted by jury trial on all counts. They timely appeal.

III.

A.

Cardona Sr. argues on appeal that one of his convictions should be vacated because the two conspiracies of which he was convicted, he says, were multiplicitous. "A prosecution is multiplicitous when the government charges a defendant twice for what is essentially a single crime . . . ." United States v. Chiaradio, 684 F.3d 265, 272 (1st Cir. 2012) (citing United States v. Destefano, No. 98-2054, 1999 WL 1319192, at *1 (1st Cir. Nov. 22, 1999) (per curiam)). A multiplicitous prosecution violates the Double Jeopardy Clause's prohibition "against multiple punishments for the same offense." Id. (quoting United States v. Pires, 642 F.3d 1, 15 (1st Cir. 2011)).

The prosecution replies first that, because Cardona Sr.'s multiplicity claim is untimely, it cannot be reviewed by this court. Under Fed. R. Crim. P. 12(b)(3), a multiplicity objection "must be raised by pretrial motion if the basis for the motion is then reasonably available and the motion can be determined...