Appeal from the United States District Court for the District of Nevada. D.C. No. CR-87-00055-HDM. Howard D. McKibben, District Judge, Presiding.
Before: Stephen Reinhardt, John T. Noonan, Jr. and David R. Thompson, Circuit Judges. Opinion by Judge Noonan.
Once more the sentencing procedure, not the crime, is the issue on appeal. On January 13, 1990 Robert Richardson Kimball pleaded guilty to the crime of aiding and abetting international money laundering in violation of 18 U.S.C. § 1956(a)(2)(B)(i) and § 2. The district court in sentencing took into account that he had also engaged in marijuana smuggling. Kimball objects to the process the district court employed. We affirm the district court.
In November 1987 Kimball was charged with conspiracy to defraud the United States and with a variety of other crimes relating to money laundering and reporting financial requirements. In September 1988 a superseding indictment charged Kimball and the others plus two more defendants with conspiracy to aid and abet the distribution of marijuana.
Plea negotiations were conducted with Kimball and five of the defendants, resulting in the Joint Plea Memorandum of January 13, 1990, made pursuant to Rule 11(e)(1)(C) of the Federal Rules of Criminal Procedure and as such intended to be binding on the court. The relevant terms of this agreement were that the defendants would forfeit certain property including $7 million in cash and an additional "$5,632 in cash that was seized from defendant Kimball." The acceptance of these assets by the government was "based on defendants' representation that they represent all defendants' forfeitable assets, assets obtained through drug trafficking." In addition, the defendants agreed to the forfeiture of approximately $7,618,570 obtained by "Robert Richardson Kimball, Brian Peter Daniels, David Lyle Boese, Stephen Illenberger, Thomas E. Tuttle". The defendants agreed to plead guilty to one count of money laundering in violation of 18 U.S.C. § 1596 and the government agreed they would be sentenced under pre-guideline procedures with the binding cap of 13 years for Kimball.
A further section of the Joint Plea Memorandum stated "Facts to Support a Plea of Guilty." Relevant facts therein stated follow:
In approximately late 1986, Brian Peter Daniels, Robert Richardson Kimball, David Lee Boese, Thomas E. Tuttle and others began formulating plans to import loads of southeast Asian marijuana in to the United States. Brian Peter Daniels, who resided in Thailand, had established contacts to obtain Thai marijuana from sources who cultivated and stockpiled the marijuana.
In late 1986, and continuing through July 1987, Boese, utilizing the name Barry John Johnson, and utilizing a British passport, travelled on numerous occasions to Hong Kong and Bangkok and other cities throughout southeast Asia in order to arrange for the shipments. Robert Richardson Kimball, utilizing the name Robert Glyn Bland, and also utilizing a British passport, was also travelling throughout southeast Asia during the same time period. During this time Boese and Kimball were in communication concerning the upcoming loads.
Some time around the middle of September, 1987, the 42-ton load of marijuana was offloaded on the West Coast of the United States. Approximately 19 tons of this marijuana was transported and distributed on behalf of the Daniels, Kimball, Boese Organization.
On January 26, 1988, Brian Peter Daniels met with Phillip Christensen in Bangkok, Thailand. During this meeting, Daniels related that he had sent four successful boatloads of marijuana to the United States in 1987. The last boatload was split with William and Chris Schaffer. Daniels related that the funds derived from this load were seized in Reno, Nevada and two of his (Daniels') men, Robert Kimball and Stephen Illenberger, were arrested. Daniels stated that he was paying money to assist Kimball and Illenberger with their legal problems. Daniels stated that he had flown to Austria to open up a bank account in order to receive a portion of the $7.6 million seized in Reno. Daniels also related that Kimball and his associates had a total of approximately $45,000,000 as a result of the above load.
The same day that the Joint Plea Memorandum was agreed to, the government filed a superseding information charging Kimball with aiding and abetting an international money laundering offense, and Kimball pleaded guilty to the charge.
On January 25, 1991 a Supplemental Plea Agreement was entered into by the government and the defendants including Kimball. According to this agreement, the defendants were no longer required to forfeit $7 million in cash. However, the cap on Kimball's sentence was increased from 13 years to 18 years and he agreed "to forfeit to the ...