United States of America v.  John Mark Collins

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
 UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 03-4257 
JOHN MARK COLLINS,
Defendant-Appellant. 
 UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 03-4258 
ROBERT MARSHALL SERRANO,
Defendant-Appellant. 
 UNITED STATES OF AMERICA,
Plaintiff-Appellant,
v. No. 03-4318 
JOHN MARK COLLINS; ROBERT
MARSHALL SERRANO,
Defendants-Appellees. 
Appeals from the United States District Court
for the Eastern District of North Carolina, at Raleigh.
Malcolm J. Howard, District Judge;
William A. Webb, Magistrate Judge.
(CR-01-292).
Argued: May 7, 2004
Decided: June 14, 2004

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Before MOTZ and KING, Circuit Judges, and
Pasco M. BOWMAN, Senior Circuit Judge of the
United States Court of Appeals for the Eighth Circuit,
sitting by designation.
Affirmed in part and vacated and remanded in part by published opin-
ion. Judge Motz wrote the opinion, in which Judge King and Senior
Judge Bowman joined.
COUNSEL
ARGUED: Sofie Wonderly Hosford, HOSFORD & HOSFORD,
Wilmington, North Carolina, for John Mark Collins; Kelly Latham
Greene, STUBBS & PERDUE, P.A., New Bern, North Carolina, for
Robert Marshall Serrano. Dennis M. Duffy, Assistant United States
Attorney, OFFICE OF THE UNITED STATES ATTORNEY,
Raleigh, North Carolina, for the United States. ON BRIEF: Frank D.
Whitney, United States Attorney, Anne M. Hayes, Assistant United
States Attorney, Raleigh, North Carolina, for the United States.
OPINION
DIANA GRIBBON MOTZ, Circuit Judge:
A jury convicted John Mark Collins and Robert Marshall Serrano
of crimes arising from their participation in sophisticated interstate
burglary and money laundering conspiracies. On appeal they chal-
lenge their convictions; the Government cross-appeals, asserting that
the district court misapplied the Sentencing Guidelines in determining
the value of the funds involved in their illegal conduct. For the rea-
sons that follow, we affirm the convictions, but vacate the sentences
and remand for resentencing consistent with this opinion.
I.
In July 1996, after working as a law enforcement officer with the
Palm Beach County Sheriff’s Department for more than a dozen
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years, Collins resigned and joined a burglary ring operated by his
good friend (and former paid informant) William Anthony Granims,
and Granims’ friend, Michael Ornelas. From July 1996 to July 1999,
this team committed ten to fifteen burglaries of jewelry and grocery
stores throughout the southeastern United States.
The burglary ring sought to convert the stolen jewelry into cash as
quickly as possible. Crucial to accomplishing this goal were three
fences in Florida, who provided the team with cash and checks in
exchange for the jewelry. By February 1999, Serrano had earned the
privilege of becoming the team’s primary fence; in return for advanc-
ing cash to fund the burglary trips, the group guaranteed Serrano a
"first look" at the jewelry. The team would sell Serrano jewelry at
prices much lower than retail price. Serrano touted his skill in filing
down identifying serial numbers on watches, and agreed to sell those
watches that still had serial numbers only in Europe. Testimony from
Granims and Ornelas, as well as subsequent taped conversations
between Ornelas and Serrano, indicated that Serrano would ask
Granims during jewelry purchases if he could "put [the jewelry] in the
showcase" and that Granims "knew what [he] meant": namely, was
"it stolen locally?"
Most of the crimes for which Collins and Serrano were eventually
charged stemmed from burglaries that occurred in North Carolina. On
May 21, 1999, the burglary team, with Collins’ participation, stole
$220,000 worth of jewelry from a jewelry store in Cary, North Caro-
lina. Immediately after that burglary, the team broke into a grocery
store in Durham and stole $31,212 in cash and checks. Within days,
they transported the jewelry to Florida and sold it to Serrano for
$30,000 ($20,000 in cash and two $5,000 checks). A portion of the
proceeds was funneled to Collins in the form of payments on Collins
and Granims’ jointly-held American Express card.
In June 1999, the team (with Collins in tow) returned to Raleigh,
North Carolina in Granims’ airplane. After a botched attempt to bur-
glarize a jewelry store, the team stole $20,904 in cash and $3,000 in
postage stamps from a grocery store. The group then stole $14,382
from another grocery store in Apex, North Carolina. Collins once
again received his share via a payment on his American Express bill.
In July, Ornelas sold the stamps to Serrano.
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The Government charged Collins and Serrano ("Defendants") by
superseding indictment with conspiracy to commit interstate transpor-
tation of stolen property ("ITSP") in violation of 18 U.S.C. §§ 371,
2314 (2000); ITSP in violation of 18 U.S.C. § 2314 (2000); conspir-
acy to engage in money laundering in violation of 18 U.S.C.
§ 1956(h) (2000); and money laundering in violation of 18 U.S.C.
§ 1956(a)(1)(B)(i) (2000). Collins was also charged with ITSP for the
transport of the cash stolen from the grocery stores in North Carolina.
After an eight-day trial, a jury convicted Defendants on all counts.
In sentencing Defendants, the district court grouped their offenses,
but did not aggregate the amounts associated with the grouped
offenses. Instead, the court sentenced Defendants based only on the
amounts it attributed to their money laundering offenses. This resulted
in a sentencing range of 70 to 87 months for Collins (rather than 108
to 135 months), and 63 to 78 months for Serrano (rather than 97 to
121 months). The court then sentenced Collins to 71 months impris-
onment, and Serrano to 64 months imprisonment.
II.
Defendants challenge their convictions on numerous grounds. Only
one requires extended discussion; we turn first to it and then briefly
address Defendants’ remaining arguments.
A.
Initially, Defendants maintain that the Eastern District of North
Carolina did not provide a proper place of venue for the money laun-
dering charges.
The Constitution provides that "[t]rial of all Crimes . . . shall be
held in the State where the said Crimes shall have been committed."
U.S. Const. art. III, § 2, cl. 3; see also id. amend. VI. In United States
v. Cabrales, 524 U.S. 1 (1998), the Supreme Court recently consid-
ered the proper venue for money laundering offenses. The Court ruled
that even if the money at issue was derived from illegal narcotics
activity in Missouri, that state did not constitute a place of proper
venue for money laundering offenses begun, conducted, and com-
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pleted in another state. Id. at 7-10. However, the Cabrales Court did
not decide whether a launderer who "acquired the funds in one district
and transported them into another" in order to launder them in the lat-
ter district, could be tried in the district from which he transported the
proceeds. Id. at 8. In United States v. Stewart, 256 F.3d 231, 239, 243
(4th Cir. 2001), we interpreted the Cabrales Court’s reservation of
this point as delineating an "exception to its rule that money launder-
ing typically does not constitute a continuing offense, triable both in
the district court where the illegal funds were generated and the dis-
trict in which the financial transaction took place."1
The Government relies on this transport exception in asserting that
venue was proper in this case. In contrast, Defendants maintain that
the actual acts of money laundering in this case — i.e., the actual
sales of jewelry — "began and were completed all" in Florida and
hence that venue for those charges was only proper in Florida under
Cabrales. Brief of Appellant at 30.
Defendants, however, did not raise any objection to venue until the
close of evidence in this case. As a result, a question arises as to
whether they have waived their objections to venue. We note that
"[b]ecause proper venue is a constitutional right, waivers of venue
rights through failure to object should not readily be inferred." Stew-
art, 256 F.3d at 238. Accordingly, if an indictment properly alleges
venue, but the proof at trial fails to support the venue allegation, an
objection to venue can be raised at the close of the evidence. United
States v. Melia, 741 F.2d 70, 71 (4th Cir. 1984) (per curium). Indeed,
a defendant does not waive venue unless the "indictment clearly
reveals [the venue] defect but the defendant fails to object." United
States v. Sandini, 803 F.2d 123, 127 (3d Cir. 1986) (internal quotation
marks and citation omitted). When, however, the asserted venue
defect "is apparent on the face of the indictment" a defendant does
waive any objection if he fails to object prior to trial. Melia, 741 F.2d
at 71 ("The rule that the objection must be made before trial applies
. . . when the defect is apparent on the face of the indictment.").
1Under 18 U.S.C. § 3237(a) (2000), offenses "begun in one district and
completed in another, or committed in more than one district, may be
inquired of and prosecuted in any district in which such offense was
begun, continued, or completed."
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In this case, the indictment specifically alleges on the basis of the
facts set forth above — the burglaries in North Carolina and the trans-
portation of the stolen property to Florida for sale there — that the
money laundering offenses took place in the Eastern District of North
Carolina. In other words, every fact giving rise to Defendants’ present
objection to venue clearly appeared on the face of the indictment.
Thus, if the facts alleged in the indictment failed to allege a proper
basis for venue on the money laundering charges, as Defendants now
contend, "the defect [wa]s apparent on the face of the indictment."
Melia, 741 F.2d at 71. Consequently, by failing to object to venue
prior to trial, Defendants have waived their present claims of
improper venue. Id.
B.
Defendants also challenge the sufficiency of the evidence, certain
rulings of the district court, and two jury instructions. All of these
claims are meritless.
Contrary to Defendants’ contentions, the Government produced
evidence sufficient to show that Serrano had knowledge that he pur-
chased stolen jewelry and knowingly participated in the theft and
money laundering conspiracies. The steeply discounted price Serrano
paid for the stolen jewelry, his prowess in filing down serial numbers,
and his incriminating taped admissions provide a wealth of such evi-
dence. Similarly, the Government introduced ample evidence that
Collins concealed the proceeds of the burglaries in violation of
§ 1956(a)(1)(B)(i), including evidence demonstrating that Collins
knew the jewelry was being fenced and converted into difficult-to-
trace cash and that he indirectly received his share of the robbery pro-
ceeds via credit card payments.
Defendants’ objections to the district court’s pretrial and trial rul-
ings are equally unavailing. One of these objections concerns the
tapes, referred to above, of conversations between Ornelas and Ser-
rano, which Ornelas made on March 29 and April 2 at the Govern-
ment’s request. The tapes contain many admissions by Serrano
relevant to the charged conspiracies, including Serrano’s admissions
that he asked Granims during the jewelry purchases if he could "put
it in the showcase" (and that Granims "knew what [he] meant"), and
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that he had been unhappy with the job Ornelas did grinding down a
serial number on a watch. These and many other statements were
clearly relevant, and, as admissions, not hearsay. See Fed. R. Evid.
801(d)(2)(A); United States v. Wills, 346 F.3d 476, 489-90 (4th Cir.
2003). Thus, the district court did not err in admitting the taped state-
ments.2
Furthermore, we also find meritless Serrano’s contention that the
district court erred in denying a mistrial when a Government agent,
testifying as to Serrano’s "cooperation," briefly mentioned that Ser-
rano refused to sign law enforcement consent forms because Serrano
said "he had previously been in prison" and did not want to be viewed
as a "snitch." The district court immediately granted defense coun-
sel’s motion to strike the testimony and delivered a prompt curative
instruction. Given these curative measures and the brevity of the
agent’s remark (which the district court found to be inadvertent), the
district court did not err in denying a mistrial. United States v. Hay-
den, 85 F.3d 153, 158 (4th Cir. 1996) (noting that absent the purpose-
ful introduction of prejudicial other crimes evidence by the
prosecution, "the courts generally have discerned no reversible error
where the trial court has acted promptly in sustaining an objection and
advising the jury to disregard the testimony") (internal quotation
marks and citation omitted).
Finally, Defendants complain about two jury instructions. Clearly,
in view of the above evidence, the court did not err in providing the
jury with a willful blindness instruction — i.e., an instruction that the
2Prior to trial, Collins moved to sever his case from Serrano’s on the
ground that the taped Serrano-Ornelas conversations would prejudice
him. The tapes do not even mention Collins, and he utterly failed to "es-
tablish that actual prejudice would result from a joint trial." United States
v. Reavis, 48 F.3d 763, 767 (4th Cir. 1995). Collins’ challenge to the dis-
trict court’s forty-five minute limit on his closing argument is equally
unpersuasive, particularly given that the court allowed Serrano an addi-
tional thirty minutes and limited the Government, which had the burden
of proof with respect to both defendants, to forty-five minutes. See Her-
ring v. New York, 422 U.S. 853, 862 (1975) (noting that the presiding
judge "may limit counsel to a reasonable time and may terminate argu-
ment when continuation would be repetitive or redundant" and "must
have broad discretion" in such matters).
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jury could find Defendants guilty if it found that they "actually knew"
the financial transaction involved proceeds from unlawful activity or
if they were "willfully blind" to this fact. See United States v. Camp-
bell, 977 F.2d 854, 857-59 (4th Cir. 1992) (noting that while "the
[money laundering] statute requires actual subjective knowledge . . .
this requirement is softened somewhat by the doctrine of willful
blindness" and reversing judgment of acquittal because the evidence
in the case was sufficient to create a question for the jury concerning
whether Campbell "deliberately closed her eyes to what would other-
wise have been obvious to her") (internal quotation marks and citation
omitted).
The other challenged instruction defined reasonable doubt.
Although we have repeatedly held any instruction on reasonable
doubt ill-advised, see, e.g., United States v. Reives, 15 F.3d 42, 45-46
(4th Cir. 1994), the district court in this case provided a reasonable
doubt instruction at the request of Defendants. Moreover, the court
used the precise language put forth by Collins, except that the court
added the word "real" to modify "doubt." Thus, the court instructed
that: "[a] reasonable doubt is a real doubt, based upon reason and
common sense after careful and impartial consideration of all the evi-
dence in the case." (emphasis added). Contrary to Defendants’ argu-
ment, the addition of the word "real" in this sentence does not
substantially change the meaning of the instruction, so as to make it
constitutionally deficient. See United States v. Williams, 152 F.3d
294, 297-98 (4th Cir. 1998) (finding no reversible error where court
instructed jury that a "reasonable doubt is a real doubt based upon
reason and common sense"). Moreover, Serrano requested an instruc-
tion that included "real" as a modifier of "doubt." Thus, in giving the
instruction it did, the court essentially gave Defendants an instruction
combining the essential elements of both of their requests. As for
error in providing any reasonable doubt instruction, "[a] defendant in
a criminal case cannot complain of error which he himself has
invited." United States v. Herrera, 23 F.3d 74, 75 (4th Cir. 1994)
(quoting Shields v. United States, 273 U.S. 583, 586 (1927)).
In sum, we reject all of Defendants’ challenges to their convictions.
III.
On cross-appeal, the Government contends that the district court
erred as a matter of law in determining the value of the funds
involved in Defendants’ illegal conduct.
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The district court used the 1998 edition of the United States Sen-
tencing Guidelines to calculate Defendants’ sentences. As the proba-
tion officer recommended in the presentence investigation reports
("PSRs"), the court grouped Defendants’ money laundering and ITSP
offenses pursuant to U.S.S.G. § 3D1.2(d) (1998). The court then used
the money laundering guideline, U.S.S.G. § 2S1.1 (1998), to deter-
mine Defendants’ base offense level.3 Neither Defendants nor the
Government object to the grouping or the use of U.S.S.G. § 2S1.1 to
establish the base offense level. The Government does argue, how-
ever, that once the district court grouped the offenses, it erred in
refusing to aggregate the amount of funds involved in the grouped
offenses.
The probation officer found in her presentence report that Collins
was "accountable for the theft" of stolen property — jewelry, cash,
and checks — worth $5,786,709.36. However, the probation officer
determined the value of funds involved in Collins’ money laundering
activity as the cash received in return for the stolen property, which
the officer calculated as only $478,295.09. Similarly, the PSR deter-
mined that Serrano was accountable for the theft and receipt of
$3,250,195.70 worth of stolen property, but that the value of funds
laundered by Serrano totaled only $228,159.00.
The district court adopted these figures. The court then followed
the PSR recommendation that it use only the value of funds associ-
ated with the money laundering offenses ($478,295 for Collins and
$228,159 for Serrano) to determine Defendants’ specific offense char-
3Effective November 1, 2001, the Sentencing Commission substan-
tially amended the Guidelines for money laundering. The amendments
explicitly provide for grouping of money laundering counts with counts
for the underlying offense under U.S.S.G. § 3D1.2(c), see U.S.S.G.
§ 2S1.1, cmt. n.6 (2003), rather than U.S.S.G. § 3D1.2(d), as this court
had previously allowed, see United States v. Walker, 112 F.3d 163, 167
(4th Cir. 1997). The amendments also set the base offense level for
money laundering at either the offense level for the underlying offense
from which the laundered funds were derived or eight plus the number
of offense levels from the table in § 2B1.1. See U.S.S.G. § 2S1.1(a)
(2003). In contrast, the 1998 Guidelines set the base offense level for
money laundering at 20 or 23. See U.S.S.G. § 2S1.1(a) (1998). No party
disputes the use of the 1998 Guidelines for Defendants’ sentencing.
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acteristics under U.S.S.G. § 2S1.1(b)(2) (1998). The Government
contends that, even if these figures accurately reflect the value of
funds involved in the money laundering counts, the district court
erred in refusing to aggregate this amount with the amount attribut-
able to the ITSP counts, after it had grouped the money laundering
and ITSP counts.4 We agree.
The district court based its decision to group the counts on
U.S.S.G. § 3D1.2(d) (1998), which provides for grouping "[w]hen the
offense level is determined largely on the basis of the total amount of
harm or loss . . . or some other measure of aggregate harm, or if the
offense behavior is ongoing or continuous in nature and the offense
guideline is written to cover such behavior." When offenses are
grouped together pursuant to U.S.S.G. § 3D1.2(d), "the offense level
applicable to a Group is the offense level corresponding to the aggre-
gated quantity." U.S.S.G. § 3D1.3(b) (emphasis added). The Sentenc-
ing Commission’s commentary further explains that "[w]hen counts
are grouped pursuant to § 3D1.2(d), the offense guideline applicable
to the aggregate behavior is used." U.S.S.G. § 3D1.3, cmt. n.3; see
also id. (instructing the court to "[d]etermine whether the specific
offense characteristics . . . apply based upon the combined offense
behavior taken as a whole"); U.S.S.G. ch.3, pt. D, introductory cmt.
(summarizing a rule in Part D "as follows: If the offense guidelines
in Chapter Two base the offense level primarily on the amount of
money . . . involved (e.g., theft . . .) . . . add the numerical quantities
and apply the pertinent offense guideline, including any specific
offense characteristics for the conduct taken as a whole"). Thus, after
the court properly grouped offenses pursuant to U.S.S.G. § 3D1.2(d)
— and again we note that Defendants make no contention that the dis-
trict court erred in so grouping the money laundering and ITSP
offenses — the amounts involved in the two offenses must be aggre-
gated when determining offense levels.5
4Contrary to Defendants’ suggestion, determination of this issue does
not call on us to review the district court’s factual findings, which we
would affirm unless clearly erroneous. United States v. Caplinger, 339
F.3d 226, 233 (4th Cir. 2003). Rather, the Government raises a legal
issue — whether the district court properly interpreted the Sentencing
Guidelines — which we review de novo. Id.
5In recommending that the offense level on the grouped counts be tied
only to the value of funds attributable to the money laundering counts,
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Accordingly, the funds involved in the grouped money laundering
and ITSP counts should have been aggregated to determine the
offense level. However, as the Government stated at oral argument,
in the case at hand this does not mean that the amounts attributable
respectively to the money laundering and ITSP counts should simply
be added together. Rather, since these two amounts involve the same
property from different viewpoints — the amount attributable to the
ITSP counts being, inter alia, the value of the property laundered and
the amount attributable to the money laundering counts being the
value of funds realized from the laundering of that property — the
total amount attributable to the ITSP counts already includes the
amount attributable to the money laundering counts. Thus, the "aggre-
gated quantity," U.S.S.G. § 3D1.2(d), used to determine Defendants’
offense level should be the value of the stolen property transported
interstate for which Collins and Serrano were held accountable — i.e.,
$5,786,709.36 and $3,250,195.70, respectively. See United States v.
Caplinger, 339 F.3d 226, 231, 235 (4th Cir. 2003) (finding that the
district court, after grouping wire fraud and money laundering counts
under U.S.S.G. § 3D1.2(d), properly set the value of funds under the
money laundering guidelines as the total amount of funds wired,
when that amount already included the amounts that formed the basis
of the money laundering counts).
For these reasons, we vacate Defendants’ sentence and remand the
case to the district court for resentencing, in accordance with this
opinion.
the PSR found significant that the ITSP offenses caused loss "to the vic-
tims of the burglaries while the money laundering offenses measure a
general societal harm." But whether the counts harm the same victim is
relevant only in determining whether grouping is appropriate under
U.S.S.G. § 3D1.2(a) and (b). The offenses here were grouped, without
objection from Defendants, under § 3D1.2(d). That section provides for
grouping (and attendant aggregation of amounts associated with those
counts) regardless of whether counts involve different victims. See
§ 3D1.2, cmt. n.8 (noting that "[c]ounts involving different victims (or
societal harms in the case of ‘victimless’ crimes) are grouped together
. . . in subsection . . . (d))"; see also Walker, 112 F.3d at 167 (upholding
the grouping of mail fraud and money laundering counts and the aggre-
gation of the amounts associated with those counts).
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IV.
In sum, we affirm the convictions of John Mark Collins and Robert
Marshall Serrano, and vacate their sentences and remand for resen-
tencing consistent with this opinion.
AFFIRMED IN PART AND VACATED AND
REMANDED IN PART
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