*1 conspiracy purpose up crimes share a to cover the the indictment’s ey. Although Queen, included, theft from with the tax evasion heading under the allegations Means,” presumably having purpose that of the added to was “[i]t “Manner up money laundering. cover the Both the attempted that conspiracy [defendants] the law, however, preclude a the ... source ... facts and the disguise or to conceal by finding by there was an illegal proceeds cash or control of express original subsidiary agreement tax returns ... for failing to file income 1999,” government’s among conspirators up de- to cover their year the tax crime, finding a to file tax fraud that or failure subsequent a scription of objective the 1999 return was an act of concealment concealment of shared the same cannot done furtherance of the launder- money laundering transactions ing conspiracy meaning within the of Grü- conspiracy alleged specific turn the —to Thus, charged newald. while was money laundering general —into separate convicted of the properly to conceal funds.19 conspiracy return, a tax crime of to file conspiracy section 371 Unlike majority treating independent errs Mann, a sepa which included charged money laundering crime as a objective, or conspiracy fraud rate tax conspiracy. Grünewald, general pur whose charged in the United States could pose charge to defraud conspiracy Because the subsequent time-barred, of concealment embrace acts conviction Upton’s on Count ruling, prosecution” the “no of the indictment should be reversed. money laundering i.e., a con — financial transactions— spiracy to conduct terms,
cannot, include a “central by its income from purpose”
criminal to conceal Grunewald,
the IRS. 353 U.S. simply, Put most the tax eva S.Ct. 963. America, UNITED STATES aim” of sion did not further the “central Appellee, to conduct fi conspiracy,' which was
nancial in order to conceal the transactions Hence, $900,000. source of the the tax Lynn ALBERICO, Defendant, M. scope evasion was not within the Appellant. The conspiracy. No. 06-1502. by the statute charge was therefore barred
of limitations. Appeals, United States Court
First Circuit. V. Heard Dec. 2007. correct, course, majority The Decided March file the 1999 tax return Upton’s failure to relationship to the bears some noted,
dering As I have earlier, originally the district court 19. The indictment included count As noted dismissed alleging under section that count on the basis of the statute of limita- purpose structure transactions tions. See evading currency reporting require- federal (D.Mass.2004). F.Supp.2d 5324(a)(3), ments. See 31 U.S.C. *2 Alan D. Campbell, appellant. for Romano, Attorney, John-Alex Criminal Division, Department United States Justice, Sullivan, with whom Michael J. Attorney, United States and F. William Bloomer, Assistant United States Attor- brief, ney, appellee. were on LYNCH, money. LIPEZ Judge, Chief The details of the launder- Before HOWARD, Judges. ing conspiracy, centering around the Au- Circuit gust purchase January HOWARD, Judge. Circuit Road, 1999 sale of 89 are re- *3 length companion opinion counted at in our her Lynn appeals from convic- Alberico 5-7, Upton. Upton, in 559 F.3d at money to commit for conspiracy tion 542252, **1-2. WL charged along with was dering. She boyfriend, time long her George Upton, In August Alberico filed her tax who was convicted return for 1997. Her 1997 return was trial. laundering separate Up- in a money $100,000 in false that it did not disclose the us, before and is the appeal ton’s is also Upton allegedly gave to her from the sto- opinion. subject companion of a money, it len nor did disclose the rental 3, 5-6, F.3d 2009 WL States July income from 89 Road. In Cir.2009). (1st 542252, *1 Upton also filed false tax return for only conduct argues Alberico 1997, similarly omitting any portion of the of limitations— alleged during the statute the rental income. stolen or Nei- file a tax return for 1999— her failure to Upton ther Alberico nor filed a tax return She also part was not year they in which earned a in court erred re- claims that district capital gain substantial from the sale of 89 jury on the statute of fusing to instruct Iyanough Road.' reject arguments and limitations. We trial Up- was severed from affirm. August in ton’s 2004. Alberico was tried July in 2005 on the three charges same
I. Upton was tried and convicted of: light facts in the most We recite the in laundering, to the verdict. See United favorable 1956(a)(1)(b), (h), violation of 18 U.S.C. Boulanger, 1957(a); filing materially and false in- Cir.2006). year come tax return for the in viola- 7206(1); § tion of 26 and U.S.C. tailoring Alberico owned a and altera- year file an income tax return for the Cod, Cape on Massachu- tions business § in violation of 26 U.S.C. boyfriend approximately setts. Her Motors, Look years, George Upton, owned request jury did not Alberico instruc- Inc., Hyannis, in Massachu- a used car lot of limitations at tion on statute issue ended at relationship setts. Their some any during trial. filed a Rule point She early in point late 1998 or 29(a) acquittal, arguing motion for that the In to her best did not continue to exist within Alberico admitted friend, Otto, Upton applicable that she and statute of limitations. This Colleen nature, containing approxi- argument summary appear- in had stolen a suitcase objections mately ing million in cash from lender Ste- as of a list of to almost $1 every At Queen during ven the summer of 1997 and element her crimes. case, Upton’s daughter government’s and Jodi had the close of the $100,000 money. judge each of that trial considered and denied the mo- received ac- engaged a real es- tion. Alberico renewed the motion for and Alberico theft, evidence, shortly quittal tate after the the close of the and the transaction again the motion. allegedly in order to launder the stolen district court denied jury II. beyond to determine a reasonable doubt, and judge thus the trial should have appeal, On Alberico raises two claims: instructed jury sponte. sua argu- The plain the district court committed error in ment Although fails. Alberico did raise instructing not about the statute the statute of limitations her motion for limitations, her acquittal motion for acquittal, fashion, albeit a summary it granted should have been because the stat- did not form of her trial defense.1 ute of limitations bars her conviction. “Where defendant does not offer a par- instruction, ticular rely does not on Jury A. Instruction theory of defense embodied in that As did Upton, argues trial, instruction at the district court’s fail- by court *4 district erred to instruct ure to offer an instruction theory on that jury on the statute of limitations appli- sponte sua plain is not error.” United money laundering conspiracy. cable to the (1st v. George, 96, States 448 F.3d 100 Acknowledging that she preserve did not Cir.2006) (citation quotation and internal instructions, objection an to argues she omitted.) marks that we should review the district court’s plain failure to instruct for error. Acquittal B. Motion for As we noted in Upton, we have review We de novo the denial of request jury considered the failure to a a motion for judgment acquittal. Unit instruction to waive the right to the in Hatch, (1st 1, ed States v. 434 4 F.3d struction. United States v. Muñoz-Fran Cir.2006). A motion for judgment of ac co, (1st Cir.2007). 25, 487 F.3d 54 It is not quittal only granted if “the evidence and why clear to us request Alberico did not all reasonable inferences to be drawn from jury instruction on the statute of limita evidence, both taken in light most tions issue. The issue was mentioned government, favorable to the are insuffi summarily in her motion acquittal. cient for a rational fact finder to conclude Muñoz-Franco, Under failure Alberico’s that prosecution has proven, beyond a request instruction and failure to doubt, reasonable each of the elements of object to the instructions as delivered Pimental, the offense.” United States v. would constitute waiver. (1st 575, Cir.2004). 380 F.3d 583
Even if the like, with, failure to instruct Much but not identically Up- error, ton, were to be reviewed for plain see argues Alberico that government Thurston, 51, v. States 358 F.3d produce 63 failed to evidence sufficient to (1st Cir.2004), on grounds, rev’d other Al show that the May lasted until berico would fare no better. Alberico ac argues 1999. She knowledges that she requested neither laundering, to the extent statute existed, of limitations instruction nor ob that it ended with the sale of 89 jected to the lack of such instruction. See in January Road 1999. Alberico (d). 30(a), Fed.R.Crim.P. argues She dispute does not that she committed one of whether a crime has occurred within the the tax crimes she was with: fail- statute of limitations is a question for the ing However, to file a return for 1999.2 1. The statute of limitations issue was appellate not Alberico states in her brief that closing disputes filing argument. mentioned in Alberico's she her conviction for a false return, although tax specifically she is not appealing that conviction here. See, objective e.g., tral of the failure to file was not that her argues
she
laundering conspiracy
Goldberg,
United States v.
F.3d
part of
Mann,
(1997);
v.
affect the statute
United States
not
thus does
(5th Cir.1998);
United States
calculus.
limitations
(5th Cir.1991).
Esacove,
943 F.2d
gov
Further,
contends
her failure to
argument—that
ernment’s
Here,
jury could have
a reasonable
in 1999 was
return
file a tax
failure to file a
concluded
Alberico’s
may
considered for
thus
be
conspiracy and
an act of con
1999 tax return constituted
purposes—is
limitations
fore
statute
Upton’s and
cealment
in furtherance of
Supreme Court’s decisions
by the
closed
In
money laundering scheme.
States, 353 U.S.
v. United
in Grunewald
legally
were
and Alberico
(1957)
gument jury could con- Because a reasonable 542252, the **4-8. Unlike 2009 WL failure to file her 1999 clude Twitty, who in Grunewald defendants of the tax return was “done furtherance conspira general under the were objectives conspiracy,” main of the Grüne- statute, § is cy 18 U.S.C. “express agree- of an requirement wald ’s 1956(a)(1)(b), charged under 18 U.S.C. directly apply. ment to conceal” does not 1957(a), (h), concerning conspiracy to drew a distinction between Grünewald laundering. Money laun of concealment done furtherance “acts 1956 is defined as: dering under section conspiracy,” objectives the main of the after these and “acts of concealment done involving] ... financial transaction [A] attained for objectives have been central ac- specified unlawful proceeds the covering up after purposes transaction is de- tivity knowing ... 405, 77 crime.” U.S. at S.Ct. 963. part—to or in conceal or signed in whole merely estab- The Court in Grünewald location, nature, disguise the involved, that, latter where the lished source, ownership, or the control express needs to show “an government ... proceeds agreement to conceal.” here, Where, that is as the crime however, Here, of conceal the acts conspiracy has the intent object of the main element, were done furtherance of the the success of the ment as an conceal con objectives money laundering of the depend on conceal may itself act or Accordingly, long so as the spiracy. acts of con Accordingly, ment. additional were “fore- of concealment committed further the cen- acts may cealment be said to seeable,” they may LIPEZ, for stat be considered Judge, Circuit dissenting in See United purposes. ute of limitations part. Hansen,
States v.
434 F.3d
Appellant Alberico’s conviction on Count
States v.
Cir.2006);
Pinillos-Prie
Four of the indictment should be reversed
to,
(1st Cir.2005).
Here,
419 F.3d
for the reasons set
my
forth in
partial
they
plainly
were
so. As we noted in
in United States v. Upton, dissent
Upton,
filing returns was an ‘inte
“[n]ot
den the proceeds the house this
would have defeated the primary purpose conspiracy.”
of the 559 F.3d
2009 WL *8. policy argu-
Alberico also advances a
ment in favor of position. her She asserts allowing her failure to file tax return FARMS, S.E., MARTEX Petitioner, as conduct done in furtherance of the ob-
jective strip would any statute of limitations of meaning. She UNITED STATES ENVIRONMENTAL argues that there practical is no limit to AGENCY, PROTECTION in money statute of limitations Respondent. dering conspiracy prosecution, any because alone,
individual co-conspirator, acting No. 08-1311. could revive or the conspiracy by extend *6 failing to file a tax return at point some United States Court of Appeals, the future. First Circuit. hypothesize We will not that all money Heard Dec. laundering conspiracies necessarily involve all, reporting obligations tax or obli- Decided March gations report gains, capital or taxable real estate But transactions. on the facts case,
in this the failure to file and report
capital gains directly relevant to the
conspiracy, and the failure to file was with-
in a short time and likely thus to be a Moreover,
of the conspirators’ agreement. agree
we can that in some circumstances a
conspirator’s subsequent act of conceal-
ment could be too attenuated from the
conspiracy’s primary concealment
laundering objective to constitute an act in
furtherance of the conspiracy. That sce-
nario, however, is not this case. above,
For the expressed reasons we
affirm Alberieo’s conviction.
Affirmed.