Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 94 CR 760 Elaine E. Bucklo, Judge.
Before RIPPLE, KANNE and DIANE P. WOOD, Circuit Judges.
In this direct criminal appeal following a guilty plea, Tony Silva challenges the district court's decision to deny his motion to withdraw that plea. He also submits that the court made several errors in the sentencing process. For the reasons set forth in the following opinion, we affirm the judgment of the district court.
Defendant Tony Silva, an internationally recognized expert on rare birds, pleaded guilty to two counts of a multi-count indictment: (1) conspiracy to knowingly import, transport and sell wildlife; see 18 U.S.C. sec.sec. 2, 371, 545; 16 U.S.C. sec. 3372(a)(1),(4); 16 U.S.C. sec. 3373; and (2) knowingly filing a false income tax return for 1988, see 26 U.S.C. sec. 7206(1). Although Mr. Silva gave a radically different account in the affidavit that he filed in support of his motion to withdraw his plea, we set forth here, in abbreviated fashion, the facts that he admitted both in his plea agreement and in the Rule 11 colloquy conducted at the time that he entered his guilty plea. See Fed. R. Crim. P. 11.
Between 1986 and 1991, Mr. Silva conspired with Gila Daoud (his mother), Hector Ugalde, Gisela Caseres, and several unindicted co-conspirators (Horacio Cornejo, Larry Lafeber, Mario Trabaue and others) to smuggle protected parrots and macaws into the United States. Cornejo obtained many of these birds illegally in South American countries and sold them to Lafeber. Lafeber would then ship them to the United States. One of Cornejo's sources was Caseres, who smuggled the birds from Paraguay or Brazil to Argentina. The shipments of illegal birds were commingled with shipments of legal birds. Mr. Silva and Lafeber then separated the shipments at the quarantine station and removed the illegal birds while the United States Department of Agriculture employee was distracted. Mr. Silva then sold them to purchasers who were unaware that the birds had been imported illegally and had not been quarantined.
Between 1986 and late 1988, Mr. Silva and Lafeber sometimes used other South American exporters to smuggle in Hyacinth Macaws, Golden Conures, Redfronted Macaws, Vinaceous Amazons, Toco Toucans and other birds. In 1989, Mr. Silva purchased a number of Hyacinth Macaws that Caseres had captured in the wild and provided the funds for Caseres to keep them and then to bring them to Mexico. Mr. Silva recruited others, including Ugalde, to bring the macaws across the Mexican border without going through customs or quarantine. In April 1989, Mr. Silva moved to Tenerife to serve as Curator of Birds at Loro Parque. However, until at least 1991, he continued his efforts to import into the United States the macaws that Caseres was holding for him.
In his plea agreement, as well as at the Rule 11 inquiry, Mr. Silva admitted that he willfully filed a tax return for 1988 that understated his gross receipts from his business of selling birds. He also admitted to specific relevant conduct between 1989 and 1991: the illegal sale of two Queen of Bavaria Conures, seven Blue-throated Conures, three Crimson-bellied Conures, three Yellow-shouldered Amazons, and two Red-vented Cockatoos; and the underreporting of gross receipts for the years 1986-90.
B. Proceedings in the District Court
Trial of this case had been postponed in order to permit the parties to complete their negotiations on the guilty plea agreement. In December 1995, the parties had told the court they were close to agreement; therefore the court struck a January trial date. Nevertheless, when by mid-January the parties had not yet reached an agreement, the court set trial for February 20, 1996. The government proposed a final plea agreement offer to which Mr. Silva agreed on January 30. He pleaded guilty to one conspiracy count and one count of filing a false income tax return. The district court conducted an extensive Rule 11 colloquy and determined that Mr. Silva's plea was knowing, intelligent and voluntary. As we have noted already, in the course of that inquiry, Mr. Silva agreed with the court that the facts supporting the plea were correct. The only matters left unresolved related exclusively to the sentence.
A sentencing hearing was held in due course. After three days of testimony (from Mackman, Ugalde and Lafeber), Mr. Silva moved to withdraw the guilty plea. In his affidavit filed in support of the withdrawal, Mr. Silva asserted that, upon his move to the Canary Islands in 1989, his participation in efforts to bring the birds to the United States ceased. After that time, he claimed, he merely pretended to help smuggle birds for James Mackman, who ...