Unpublished Disposition, 899 F.2d 1226 (9th Cir. 1990)Annotate this Case
UNITED STATES of America, Plaintiff-Appellee,v.Izhak EDRI,UNITED STATES of America, Plaintiff-Appellee,v.Avraham ZARCHIA, Defendant-Appellant.
Nos. 88-5154, 88-5165.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted Nov. 3, 1989.Decided April 4, 1990.
Before HUG, CANBY and BOOCHEVER, Circuit Judges.
Izhak Edri and Avraham Zarchia appeal the sentences they received after each was convicted of violating laws regulating exportation of United States currency. They allege procedural errors by the district court, including reliance on unsubstantiated information and failure to impose individualized sentences. We affirm.
1. Reliance on Unsubstantiated Information.
Edri and Zarchia argue that the district court based their sentences upon three specific data that were speculative or conjectural: (a) that Edri and Zarchia had sent 82 Federal Express packages containing cashier's checks to Panama; (b) that Edri and Zarchia laundered a total of $22 million; (c) that the laundered money was the proceeds of illegal drug trafficking. The defendants' argument is without merit.
The district judge explicitly stated that he was not using the aggregate figures or the suspected source of the money as factors in sentencing. Transcript of Edri Sentencing Hearing at 8, 30. To the extent that this statement is accurate, it mutes the defendants' objections. United States v. Rachels, 820 F.2d 325, 328 (9th Cir. 1987) ("Where the [sentencing] court does not rely on the challenged information, the sentence will be affirmed regardless of the accuracy of the challenged information."). Even if the judge did take these proffered facts into consideration, however, the defendants' appeal still fails because the challenged inferences were permissible.
The combination of Federal Express shipping records, interviews with Federal Express employees, and government surveillance of Edri's activities supported the inference that Edri did indeed ship 82 packages. The figure of $22 million was the product of simply multiplying the number of packages by the average amount of money in each of the seized packages.1 Recorded communications between Mr. Sharvit, while apparently acting for Zarchia, and another defendant indicated that the money was from illegal narcotics sales; and drug-sniffing dogs alerted on cash used to purchase the cashier's checks. See United States v. $215,300 U.S. Currency, 882 F.2d 417, 419 (9th Cir. 1989) (noting that positive canine alert on cash is strong evidence that cash is connected to drug dealing). In addition, the use of couriers and the conversion of large amounts of cash into smaller-denominated instruments are themselves "strong indicia" of money laundering by drug traffickers. United States v. Cuevas, 847 F.2d 1417, 1424 & n. 19 (9th Cir. 1988). In short, far from being speculative and conjectural, the court's conclusions were adequately supported by the evidence.2
2. Individualized Sentencing.
Edri and Zarchia also contend that by imposing identical sentences on them the district court deprived each of his right to "an individualized assessment of ... culpability rather than a mechanistic application of a given sentence to a given category of crime." United States v. Barker, 771 F.2d 1362, 1365 (9th Cir. 1985), quoted in Brief of Appellant Zarchia at 36. This argument is also without merit.
The hallmarks of a Barker violation are not evident in the instant case. The district court did not impose the maximum allowable sentences; nor did it treat defendants equally in spite of demonstrable differences in culpability and remorse. See United States v. Potts, 813 F.2d 231, 233 (9th Cir. 1987) (identifying these factors as critical to Barker result). Moreover, during the two-day sentencing hearing, the district court heard highly individualized testimony about the character and circumstances of both Edri and Zarchia.3
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.Rule 36-3
The government carefully couched its presentation of this information in hypothetical language: "Assuming these packages contained [similar amounts]", Government Sentencing Memorandum at 11 (emphasis added); "if all shipments were of [similar size]", Zarchia Presentence Report at 8 (emphasis added)
United States v. Safirstein, 827 F.2d 1380 (9th Cir. 1987), on which Zarchia relies, presented a quite different situation. In Safirstein, the district court explicitly insisted upon "sentenc [ing] [a money smuggler] as a drug trafficker," even though there was so little evidence supporting the drug connection that the prosecution itself refused to take a position on whether the money the defendant smuggled came from drug sales. 827 F.2d at 1386. In the instant case, the prosecution presented more than adequate evidence of a drug connection and actively urged that theory upon the court
These differences between Barker and the instant case also indicate, despite Zarchia's contrary allegation, that the district court did not rely on the principle of deterrence "to the exclusion of adequate consideration of individual factors." Barker at 1369