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United States v. Anderson

United States Court of Appeals, Fifth Circuit

July 30, 2019

UNITED STATES OF AMERICA, Plaintiff - Appellee
v.
NYGUL ANDERSON; ALBERT GONZALEZ, Defendants - Appellants

          Appeals from the United States District Court for the Northern District of Texas

          Before HIGGINBOTHAM, SMITH, and SOUTHWICK, Circuit Judges.

          PATRICK E. HIGGINBOTHAM, CIRCUIT JUDGE

         Seventeen-year-old Jose Torres, eighteen-year-old Albert Gonzalez, nineteen-year-old Nygul Anderson, and twenty-one-year-old Fernando Cabrera set off from McAllen, Texas to pick up a delivery of what they understood to be "drug money" in Fort Worth. Instead, they drove into an FBI sting operation, part of an investigation into an attempted kidnapping and extortion. Anderson and Gonzalez were convicted for conspiracy to possess the proceeds of extortion, conspiracy to violate the Travel Act, and attempted money laundering. They appeal, arguing the evidence was insufficient to support their convictions, and also challenge their sentences. We AFFIRM Anderson's and Gonzalez's convictions for conspiracy to violate the Travel Act, REVERSE their convictions for attempted money laundering, REVERSE Anderson's conviction for conspiracy to possess extortion proceeds, VACATE their sentences and REMAND for resentencing.

         I.

         In September 2017, Raymundo Diaz Martinez of Fort Worth, Texas received a telephone call from Mexico, telling him that his brothers had been kidnapped, and would be murdered unless Raymundo paid a $300, 000 ransom, eventually reduced to $20, 000. Raymundo, followed the kidnapper's instructions, placed $20, 000 next to a dumpster at a 7-Eleven in Fort Worth. Raymundo's brothers were released and returned home. Two days later, the kidnapper again threatened to kidnap and murder Raymundo's brothers if Raymundo did not make a further $100, 000 payment, eventually lowering the demand to $20, 000. This time, Raymundo contacted the FBI. Setting its trap, the FBI directed Raymundo to continue the contact and agree to pay the kidnapper.

         Nine days later, Fernando Cabrera received a WhatsApp voicemail message in McAllen, Texas from a friend named "Pancho," a drug dealer in Monterrey, Mexico. Pancho told Cabrera that he was expecting a delivery of money in Texas and wanted Cabrera to pick it up. Cabrera agreed and discussed with Pancho means of converting the cash to bank deposits or prepaid telephone cards. Pancho agreed to give Cabrera ten percent of the money as a payment for his services. Cabrera's roommate and best friend Albert Gonzalez was lying next to Cabrera in bed during this conversation. Because Pancho and Cabrera were using WhatsApp's voicemail messaging function, Gonzalez heard the conversation. Gonzalez agreed to join Cabrera in the pick up. Cabrera and Gonzalez then discussed the plan. They understood the delivery involved payments for Pancho's drugs.

         Neither Cabrera nor Gonzalez had a car, so they enlisted an acquaintance, Jose Torres, to drive, although he had no car and his mother refused to let him drive hers. Torres then recruited his classmate and friend Nygul Anderson to drive, both understanding that they were to pick up drug money. At some point before or during the drive, Cabrera shared a modification to the plan: he would steal Pancho's money, and pay $1, 000 to Torres, $1, 500 to Anderson, and $4, 000 to Gonzalez, and buy clothes for each of them.

         On October 13, 2017, the four young men set off from McAllen towards Houston. During the drive, Pancho informed Cabrera that the money would be dropped off for them in Fort Worth. Later the same day, under instruction from the FBI, Raymundo dropped off a bag at a Home Depot in Fort Worth. Anderson's car with its four occupants arrived in the same Home Depot parking lot, and, while attempting to retrieve the bag, all four occupants were intercepted and arrested by FBI agents.

         Anderson and Gonzalez were indicted in counts of conspiracy to possess extortion proceeds, conspiracy to use an interstate facility to commit a Travel Act violation, and attempted money laundering. State prosecutors charged Torres with engaging in organized crime; he agreed with federal prosecutors to testify against Anderson and Gonzalez. Cabrera accepted a guilty plea. The Court conducted a bench trial of Anderson and Gonzalez in February 2018. At the close of the Government's case, both defendants moved for acquittal, arguing the evidence was insufficient to sustain convictions on each of the three counts. The district court deferred ruling on these motions, and at the close of evidence found Anderson and Gonzalez guilty on all counts, sentencing Anderson to 36 months and Gonzalez to 30 months of imprisonment. This appeal followed.

         II.

         We have jurisdiction over Anderson's and Gonzalez's appeals of final decisions and sentences of the district court.[1] In considering a challenge to the sufficiency of the evidence for a conviction, we ask "whether the finding of guilt is supported by . . . evidence sufficient to justify the trial judge, as the trier of fact, in concluding beyond a reasonable doubt that the defendant is guilty."[2]We "view all evidence in the light most favorable to the government and defer to all reasonable inferences by the trial court," without "weigh[ing] evidence" or "determin[ing] the credibility of witnesses."[3] "A challenge to the sufficiency of the evidence that is procedurally preserved . . . is reviewed de novo."[4]

         A.

         The Travel Act prohibits "travel[ing] in interstate or foreign commerce or us[ing] the mail or any facility in interstate or foreign commerce, with intent to . . . promote, manage, establish, carry on, or facilitate the promotion, management, establishment, or carrying on, of any unlawful activity," and then performing or attempting such act.[5] A business enterprise involving narcotics or controlled substances is an "unlawful activity" under the Act.[6] A business enterprise is "a continuous course of conduct, rather than sporadic casual involvement in a proscribed activity."[7] "We do not . . . require the government to prove that the defendant personally engaged in a continuous course of conduct. Rather, the government must prove only that there was a continuous business enterprise and that the defendant participated in the enterprise."[8] Knowing promotion of one transaction in the broader enterprise is promotion of the enterprise itself.[9] To prove conspiracy, the Government must prove that the defendant was one of two or more persons agreeing to commit the offense, and that a conspirator undertook an act "to effect the object of the conspiracy."[10]

         Anderson and Gonzalez concede they agreed to use an interstate facility-namely, Cabrera's cellphone-with the intent of promoting or facilitating what they understood to be Pancho's drug transaction. They argue, however, that, in so doing, the evidence establishes at most their role in "a one-off . . . isolated incident"- activity that was not continuous, and therefore not an unlawful business enterprise under the Act. [11]

         We disagree. The Government's evidence established that both Anderson and Gonzalez understood they were driving to the Fort Worth area to pick up "drug money." Gonzalez had overheard Cabrera's original exchange with Pancho-whom he had personally met in Reynosa, Mexico earlier that year. Cabrera was well aware of Pancho's occupation. Cabrera and Gonzalez were best friends, who shared a room, even a bed. It would be reasonable to infer that Gonzalez shared Cabrera's awareness of Pancho's drug enterprise.

         Anderson's connection to Cabrera and Gonzalez ran through his friend and classmate Jose Torres. Torres knew Cabrera, and understood that Cabrera was "bad," with a lot of money and "into . . . drugs." When Cabrera offered Torres $1, 000 to drive him to Fort Worth, and Torres could not use his car, Torres enlisted Anderson, telling him about Cabrera's offer. Anderson and Torres then both met with Cabrera to discuss the drive. Anderson agreed to drive after he confirmed with Cabrera that they ...


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