Court of Appeals of Arizona, First Division, Department A
Not for Publication -Rule 111, Rules of the Arizona Supreme Court
Appeal from the Superior Court in Yuma County Cause No. S1400CR201100295 The Honorable John Neff Nelson, Judge
Thomas C. Horne, Arizona Attorney General Phoenix By Joseph T. Maziarz, Chief Counsel, Criminal Appeals Section Barbara A. Bailey, Assistant Attorney General Attorneys for Appellee
Michael A. Breeze, Yuma County Public Defender Yuma By Edward F. McGee, Deputy Public Defender Attorneys for Appellant
DIANE M. JOHNSEN, Chief Judge
¶1 Franky Saucedo appeals his convictions of money laundering and use of wire or electronic communications in a drug-related transaction. We reverse the convictions and remand for a new trial.
FACTS AND PROCEDURAL BACKGROUND
¶2 The State indicted Saucedo on five drug-related offenses allegedly committed between February and April 2010: (1) Use of wire communication or electronic communication in drug related transactions, (2) participating in a criminal syndicate, (3) money laundering in the second degree, (4) conspiracy to transport narcotic drugs for sale and (5) conspiracy to possess narcotic drugs for sale.
¶3 The evidence presented at trial consisted primarily of wiretapped conversations between Saucedo's father, Rito, and Rito's associates. These conversations concerned a trip by Rito to the New York area in late March 2010, the purpose of which a special agent with the Drug Enforcement Administration ("DEA") testified was to pick up money in exchange for drugs.
¶4 After Rito returned from the trip, he called Franky Saucedo to drive him to a site in Yuma, where Rito transferred what drug enforcement officers concluded from the wiretapped discussions was the money Rito had picked up in New York, approximately $300, 000. While Franky did not participate in the transfer of the money, he watched as Rito handed small dark bundles that purportedly contained the money to two other men at the site. A wiretap then captured a later conversation between Rito and Franky in which the two discussed where Franky had hidden $10, 000 that law enforcement officers believed had been skimmed from the proceeds.
¶5 In later wiretapped conversations, Rito again discussed with persons other than Franky a future trip to the New York area in April 2010. Drug agents tracked Rito on this second cross-country trip and seized two knapsacks they saw him transfer to third parties. Agents found several shoe molds in the knapsacks. One of the agents testified that a substance in the molds appeared to be heroin and that a later DEA lab test confirmed it was heroin.
¶6 At the conclusion of the State's case-in-chief, the superior court granted Franky's motion for a directed verdict on both of the conspiracy charges. The jury ultimately convicted Franky on two of the remaining counts, use of wire communication or electronic communication in a drug-related transaction and money laundering in the second degree. The court imposed the presumptive term for each conviction, sentencing Franky to 2.5 years' incarceration on Count 1 and 3.5 years on Count 3, with the sentences to run concurrently.
¶7 We have jurisdiction of Franky's timely appeal pursuant to A.R.S. §§ 12-120.21(A)(1) (West 2013), 13-4031 (West 2013), and ...