Otis
United States v. Otis
Opinion
Lead Opinion
Per Curiam Opinion; Partial Concurrence and Partial Dissent by Judge FLETCHER.
The DEA set up what purported to be a money laundering operation for cocaine dealers. It was a dramatic success. Appellants participated in various ways in helping the Cali cartel get cocaine money back to Colombia. They used the DEA’s phony money laundering operation, not realizing they were turning the Cali cartel’s money over to the DEA, and turning themselves in to federal law enforcement. Appellants were convicted of various conspiracy, money laundering and gun crimes, detailed below as necessary. The government’s theory, proved to the satisfaction of the jury, was that appellants conspired not only to launder money, but also to aid and abet the sale of cocaine by so doing.
We consider first the defendants’ common arguments and then their individual arguments.
I. Common Arguments.
A. Alleged Conflicting Jury Instructions (Stein Error).
Several defendants claim that the jury instructions were conflicting under United States v. Stein, 37 F.3d 1407 (9th Cir.1994). They did not object on this ground, so we review for plain error. Relying on United States v. Golb, 69 F.3d 1417, 1428 (9th Cir.1995),…
Concurrence in Part
Fletcher, J.
Concurring in part and Dissenting in part.
Although I concur in the result in other portions of the majority’s disposition, I vigorously dissent from its holding in Section C that it was not a violation of the Double Jeopardy Clause to sentence defendants Montalvo-Dominquez, Monsalve, Aguilera, *837 Camacho, and Casas on both Counts I and II.
The Double Jeopardy Clause of the Fifth Amendment provides that no person shall “be subject for the same offence to be twice put in jeopardy of life or limb.” U.S. Const, amend. V., cl. 2. “It has long been understood that separate statutory crimes need not be identical — either in constituent elements or in actual proof — in order to be the same within the meaning of the constitutional prohibition.” Brown v. Ohio, 432 U.S. 161, 164 , 97 S.Ct. 2221, 2225 , 53 L.Ed.2d 187 (1977). The legislature remains free under the Double Jeopardy Clause to define crimes and fix punishments; but once the legislature has acted courts may not impose more than one punishment for the same offense and prosecutors ordinarily may not attempt to secure that punishment in more than one trial. Id. at 165 , 97 S.Ct. at 2225 . The Double Jeopardy Clause “protects…