United States v. Alberto Paramo

preju possibility every reasonable prove Jannotti, STATES UNITED v. States United dice.” denied, 469 U.S. (3d Cir.), cert. 213, 219-20 L.Ed.2d 182 880, 105 S.Ct. PARAMO, Appellant. Thomas, Alberto at trial showed evidence several absconded permission, without 92-1861. No. equipment parts and truckloads Industries, which Hopwood them stored Appeals, Court co-conspirators, by one of the owned was Circuit. Third or not document didHe garage. own at his return. its safe' insure property May 1993. tag Argued the-jury that informed then prosecution July 1993. Decided prop- abandon this to.return tried Thomas investigation he learned erty when Aug. Rehearing Petition Sur Moreover, two co- his commenced. been had intent planned his testified conspirators equipment. to steal was majority feels credulity

It strains evidence the circumstantial “most by Thom- credibly contested intent was rebutted Thomas Op. at as.” incredible above outlined evidence equipment transported the that he claim prop- private it on store temporarily order on do so room to was no there erty because However, Thomas property. Government permission seek he did not admitted property, private equipment store it on Gov- to store suddenly room found that an he learned when property ernment Moreover, two way. was under investigation Thomas’s testified

co-conspirators self-serving Thomas’s property. to steal face totally incredible

testimony sois ev- contradictory circumstantial direct and most intent was requisite

idence guilty likely proven without reference admission, improper, if Thus, their

pleas. error. harmless

constituted admission unlikely that the

Therefore, it is on the an affect pleas had rights of Thomas substantive aAs so clear. guilt was trial occur at

result, any that did error support a reversal and cannot harmless his conviction. reasons, foregoing each of the

Accordingly, affirming alone, justifies

standing dissent. respectfully I therefore

court. ROTH, COWEN,

BEFORE: ROSENN, Judges. Circuit COURT OF THE OPINION COWEN, Judge. Circuit (“Paramo”) ap Alberto Defendant money on five counts his conviction peals §§ 2 and of 18 U.S.C. laundering violation 1956(a)(1)(A)(i). evi Paramo claims money to insufficient dence to convictions, failed it laundering financial transac he conducted establish carry to “intent tions with the activity” section of ... unlawful 1956(a)(1)(A)(i). claims also denying a down by him erred court district A assistance. for substantial departure ward depart downward ordinarily may not govern unless the assistance substantial for Sentencing to pursuant makes motion ment However, Paramo 5K1.1. section Guidelines authority court had argues that govern departure because grant him a 5K1.1 refused file purposefully ment pleading not him for penalize motion money on the right to trial exercising his counts. laundering laun- sufficient We find conviction. support Paramo’s dering to by the addition, motion hold absent we authority court has the district government, departure for substan- grant downward mo- government’s sole if the tial assistance motion was withholding a 5K1.1 for tive exercising his con- for penalize the the rec- Because a trial. stitutional might the district indicates ord it lacked such au- erroneously believed sentence and Paramo’s thority, vacate will resentencing. for remand (argued), Christo- A. DeStefano William I. P.C., Warren, Warren, & DeStefano D. pher PA, appellant. Philadelphia, thirteen on all juryA convicted alia, charging, inter of an indictment counts Rotko, Atty., S. Walter U.S. J. Michael of 18 in riolation fraud of mail counts five Appeals, Jr., Atty., Chief U.S. Batty, Asst. money laun- counts § and five Atty., U.S.C. (argued), Asst. U.S. Timothy R. Rice U.S.C. dering violation PA, appellee. Philadelphia, 1956(a)(1)(A)(i).1 your Paramo’s conviction offer based on plead client’s refusal to participation from his in a scheme money laundering, stemmed the most serious readi- Revenue tax ly provable embezzle Internal Service App. offense.” at 12. The letter refund checks. The scheme was devised addition, continued: “In has Vega, Bonifacio a business tax examiner for concerning serious reservations the truthful- occasions, separate Vega five IRS. On your proffer, ness of client’s ... which would arranged to have an IRS refund check issued preclude plea.” payee ato fictitious and mailed to an address trial, At Paramo conceded most if not all of City. in New York Paramo retrieved each of predicates government’s the factual the checks from a friend and forwarded them money laundering charges, but denied that brother, (“Jaime”), to his Jaime Paramo who. supported these facts a conviction under the maintained an at a in account bank Philadel Specifically, argued statute. Paramo phia. deposited Jaime the checks and later undisputed the facts failed to a find the After withdrew cash. each "check was participated cashing in the stolen cashed, participants proceeds, the divided the checks “to carrying the on” of mail $204,000. approximately which totalled See 18 U.S.C. § fraud. arrest, Following Vega approached the (1988). Paramo partici testified that government proffered and a statement ex- pants any intended to steal one check at plaining the criminal enterprise. Jaime fol- given time, and that neither he nor " Approximately lowed soon thereafter. one participants the other ever formulated an later, agreed cooper- month Paramo also intent to steal a series checks. parties agree ate. Counsel for both purpose also stated that the sole of each proffer comported Paramo’s with the state- check-cashing pay scheme towas bills and given by Vega ments and Jaime most personal expenses, other and that none of the except respects, material as to the division of proceeds from earlier mail obtained proceeds. frauds were used to facilitate subsequent Jaime, government Vega, testimony The offered and This ones. was consistent with opportunity testimony Jaime, later given by Vega to enter into both of plea agreements. cooperating government. In return whom testified for the government pleading guilty with the requested jury Defense counsel instruc them, charges against government tion that is not sufficient “[i]t that the defen depar- offered file a motion for downward engage dant be shown to in the financial sentencing pursuant ture at to section 5K1.1 simply transaction obtain of a Sentencing Vega of the Guidelines. prior government crime.... must accepted agreement Jaime and elected prove ... engaged the defendant proceed not to trial. After the district financial transaction to future crimi granted government’s motions for activity.” App. nal at 33. The district court departures, Vega downward and Jaime re- rejected proposed instruction and in eighteen ceived sentences of months and jury structed the to obtain a twenty-four imprisonment, respec- months laundering conviction section tively. 1956(a)(1)(A)(i), government prove had to Paramo, however, plead guilty beyond refused to a reasonable doubt “that the Defen money laundering charges dant acted with the intent to specified carrying believed on of ... mail Supp.App. fraud.” sections money laundering apply statute did explained that to act “[wjith government responded intentionally conduct. The with a means to act the deliber “This, counsel, stating: purpose promoting, letter to defense facilitating let- ate or as government’s on mail fraud.” sisting carrying ter shall confirm the withdraw- counsel, proposed plea agreement objection by al of the Over strenuous defense charged 1. Paramo was also with mail fraud and 18 U.S.C. 2. money laundering as an aider and abettor under gave following App. Second, governmentstated the district court also supplemental at 475. response that it refused to file a section 5K1.1motion instruction in to a question jury: solely provide from the because Paramo failed to sub- assistance, you stantial not because he elected to [I]t's for to determine whether in this go case, applying given to trial. The maintained that the definitionthat I've Paramo's assistance was insubstantial be- you, promoted whether the Defendant agreed cooperate cause he after two other facilitated or assisted the the-carrying participants already past in the scheme had made out of the mail fraud- complete proffers gave by depositing engaging and then a dubious the check and regarding proceeds. you [I] statement the divisionof the financialtransaction.. .. think my you also asserted that informa- can see from answer that can supplied by regarding putative promote, ways tion facilitate or assist in other participant than-prospectively fourth in the scheme was too or in the future. It vague doesn't have to be a future mail fraud that to enable the to locate the alleged co-conspirator. promoted, facilitated or assisted. It past could be a mail fraud. It can be an The district court denied Paramo's motion ongoing mail fraud.... departure. Acknowledging gov first the Supp.App. jury at 425. The returned a ernment's claimthat Paramo's assistance was indictment, substantial, verdict on all counts of the and then Paramo's claimthat including money laundering. government acted with an unconstitution motive, sentencing hearing al the district court stated that it did At the before the dis court, government request not believe "that what the Government said trict did not departure withdrawing plea [the downward for .substantial assis letter Paramo's of v, Constitutionally impermissible tance. Paramo claimed that Wade United fer] is a rea States, Supp.App. - U.S. 118 son as articulated in Wade." (1992), forty-six L.Ed.2d 524 authorized the district 478. Paramo received a sentence of grant departure imprisonment. appeal court to even absent a months This followed. government motion, because the had an unconstitutional motive for withhold II. ing penalize the motion-to him for exercis Paramo claims that the evidence at ing jury to a trial on the support money laundering laundering charges. argued trial failed to convictions that he 18 U.S.C. gave government equal assistance to the 1956(a)(1)(A)(i). § The standard of review greater given by Vega than the assistance for a claim of insufficientevidenceis whether pointed govern and Jaime. He then to the supports jury's disparate substantial evidence ver ment's treatment of him and the Sturm, dict. United States v. 671 F.2d sentencing other defendants at as evidenceof (3d Cir.), denied, cert. produéed a vindictive motive. He also government's S.Ct. 74 L.Ed.2d 86 When decid lawyer, letter to his which con issue, proposed we consider the facts and all firmed the withdrawal of the sec following plea agreement reasonable inferences therefrom in [Para tion 5K1.1 "based on light government. plead money laundering." most favorable to the mo's] refusal to id. App. at 12. government's responses Section makes it unlawful to Paramo's First, involving claims were twofold. to conduct a financial transaction proceeds activity posited withholding of unlawful "with the a substantial-assis promote carrying specified tance motion based on a defendant's refusal intent to on of activity." plead guilty charges U.S.C. to certain would not gov 1956(a)(1)(A)(i). be unconstitutional under Wade. The Paramo concedes that cashing checks, knowingly argued prohibits only the embezzled ernment that Wade engaged involving prosecutorial by race, in financial transactions decisionsmotivated re proceeds activity ligion, "things Supp. of the unlawful of mail of that nature." however, argues, promote fraud. Paramo intended to the carrying on of mail evidence was insufficient to establish that he fraud when he used cash derived from em- pro- the checks cashed “intent to treasury purchase bezzled personal carrying mote the on” mail fraud. Rather, items. the’ contends that he intended mail fraud at an shows Para- Uncontradicted evidence point: earlier when he converted the embez- participants spent mo and the other their zled checks into cash. respective proceeds shares of the mail fraud items for themselves and their n personal Each offense of legally mail fraud was family government presented members. The compléted as soon as the check question suggesting any no par- evidence was mailed to a payee fictitious in New York ticipants funnelled their cash back City. 1991). See 18 (Supp. Ill U.S.C.. into the mail any fraud scheme or testified, however, that he believed devices, equipment, objects or other to assist the embezzled checks be worthless .would in continuing them Accordingly, scheme. government’s unless cashed. The theory, Paramo concludes that the failed argued which it jury, is that because requisite establish the cashing, Paramo believed the checks was nec- carrying' on of mail fraud. essary to realize' benefit from the mail Paramo relies for on United States fraud, jury could infer he cashed each Jackson, (7th Cir.1991). 935 F.2d 832 check to on of the There, defendant used cash antecedent fraud. drug pay from transactions to rent and to holding court’s in United States v. purchase telephone paging beepers and mo (9th Montoya, Cir.1991), 945 F.2d 1068 is on phones. bile car shpwed The evidence point. The in Montoya defendant a received paging the defendant used the beepers as payment bribe in the form of a check and part continuing drug operation. of his Con deposited then the check. jury The convict sequently, the court held there was sufficient money ed him laundering of pursuant finding evidence to the defen that arg 1956(a)(1)(A)(i). section appeal, On promote dant beepers the the depositing that the check pro did not ued carrying drug on of the scheme under section mote carrying bribery, the on of because the 1956(a)(1)(A)(i). Jackson, 935 F.2d at 841. bribery ’completed upon had been receipt of conclusion, court reached a different rejected the check! The argument court this however, respect payments with to the rental and held there was sufficient evidence to phone purchases, and mobile because the support the conviction. Id. at 1076. It rea they played any evidence failed to that show soned that because the defendant “could not in ongoing enterprise. role the criminal Al have deposit made use of the funds without though they helped the defendant maintain check,” jury beyond the the could find personal lifestyle, his the court held that deposit reasonable that he doubt made the than “more this is needed establish that promote carrying with the intent to the on of they promoted drug activities.” Id.2 bribery. proposition Jackson stands for the that an argues Montoya Paramo wrongly intent to the that was on of unlawful activity cannot decided. He Ap be inferred from the contends that the Court of mere peals fact that a defendant for the Ninth proceeds uses cash Circuit conflated two activity pay personal expenses such distinct laundering or subsections of the Here, 1956(a)(1)(A)(i) purchase goods. however, consumer prohibits statute. Section government presents the theory. a different engaging defendant from in financial transac argue does not that underly- tions the intent to the held, however, designed court part sufficient evi in whole or in ... to conceal or nature, location, supported source, disguise dence a conviction 18 U.S.C. under the the the the 1956(a)(1)(B)(i). Jackson, ownership, 935 F.2d at 832. or the control of the [unlawful] Jackson, money laundering That section of the statute ceeds." Unlike the defendant in Para prohibits engaging an charged violating individual from in a mo finan was not section 1956(a)(1)(B)(i). “knowing cial transaction that the transaction is or other- at a bank cashed 1956(a)(1)(B)(i) unless worthless activity. Section ing unlawful currency. negotiable exchanged to wise designed transactions financial prohibits rationally have fact, could jury the source, nature, Given own disguise the or conceal contrib- of each check cashing that the proceeds. found the unlawful or ership control of each prosperity growth and uted The court 1217 n. 2. Opinion at supra See out value by creating fraud preceding mail provisions two “[t]hese stated Jackson enterprise. unremunerative otherwise activities, an the first at different aimed are jury rationally could Accordingly, the proceeds back plowing practice of promoted the checks cashing concluded activity’ to ‘specified fraud, specifically and was each antecedent proceeds hiding the activity, second at do so. by.Paramo to Ac Jackson, intended F.2d at 842. activity.” Paramo, only provision violat cording to reasoning of adopt While 1956(a)(1)(B)(i), section Montoya was holding also is consistent with Montoya, our defendant, legislator, a state because When Jackson. opinion in court’s purpose' at issue check cashed section stated in Jackson court honorari legitimate bribe as disguising his practice at the is “aimed” that the maintains um. activity to of unlawful proceeds back plowing 1956(a)(1)(A)(i), be section not violate did attempting activity, it was promote that “plowed back” he never cause between relationship “the explicate bribery continuing into the check Jackson, (a)(1)(B)(i).” 1956(a)(1)(A)(i)and argues Similarly, Paramo id. See scheme. particular, the F.2d at 842. to sus here is insufficient the evidence in its made point earlier aon expanding section under conviction tain under punishable one conduct opinion, that to show 1956(a)(1 )(A)(i), it fails punish also be typically would subsection to further any cash plowed back however, Nowhere, other. under able scheme. mail fraud either intention suggest an did prohibited of conduct universe delineate that, aas argues implicitly 1956(a)(1)(A)(i), to decide section promote' law, cannot a defendant matter could violate sec a defendant whether activity. We already completed by plowing back other than tion Dictio Law According to Black’s disagree. Thus, cannot activity. Jackson of unlawful by offered definition as the nary, as well a conviction imply that to fairly be read something is to “con Paramo, to “promote” 1956(a)(1)(A)(i)necessarily re section under prosperity.” ... or growth [its] tribute plowed the defendant that quires evidence 1990). (6th ed. Dictionary 1214 Black’s Law reinvested, proceeds. back, or criminal definition, a defendant Consistent transactions in financial engage can III. ongoing or future not mote activity. See prior activity, also but the district also claims Paramo 1076; United F.2d at Montoya, 945 cf. for motion failing grant his by erred court (2d 176, Cir. Skinner, 177-78 946 v. on substantial departure based a downward who 1991) (affirming conviction defendant sentencing Section 5K1.1 assistance. pay prior for money orders “[u]pon motion provides that guidelines drug purchases).3 stating defendant government assistance provided substantial has case, understood Paramo present In the per- another prosecution of or investigation have been the embezzled 1956(a)(1)(B)(i). Contrary to Paramo’s reason, section reject claim Paramo's For this finding guilt subsection jury under instructing suggestion, a by erred court district the that the promoted prosecution under (B)(i) if to a a defense' they convict is not could alsoWe "past fraud.” a mail did (A)(i). on of Because subsection claim reject Paramo’s violating subsection charge Paramo with not they jury that failing by to instruct erred of that (B)(i), the elements an instruction section convict not could jury. might confused have also offense guilty under they him found if

1219 offense, 372, 102 Thus, who has committed an the court at son S.Ct. it is an elemen may depart guidelines.” tary process from' the U.S.S.G. prosecutor violation of due for a (1991).4 Although a engage motion in conduct detrimental to a crimi departure a condition for un nal defendant purpose for the vindictive 5K1.1, Supreme Court held in der section penalizing the defendant for exercising his — States, ——,- v.Wade United U.S. right constitutional to a trial. United States 1840, 1843-44, 112 118 L.Ed.2d S.Ct. Meyer, 1242, (D.C.Cir.), 810 F.2d 1246-47 (1992), that federal district vacated, courts (D.C.Cir.), 816 F.2d 695 and rein authority prosecutor’s refusal to review stated sub nom. Bartlett on Neu Behalf of remedy grant they file a motion and to if Bowen, (D.C.Cir.1987), man v. 824 F.2d 1240 prosecutor find the acted “unconsti denied, cert. By way example, tutional motive.” (1988); Goodwin, L.Ed.2d 281 see 457 U.S. at Court stated that “a defendant would be 2488; Bordenkircher, 102 S.Ct. at prosecutor entitled to if a refused relief U.S. at 98 S.Ct. at 668.5 motion, say, file a substantial-assistance be religion,” cause the defendant’s race or or sentencing At hearing, gov “if the prosecutor’s, refusal to move was not suggested ernment that a more narrow rule rationally legitimate related to a Government applies purposes prosecutor’s for of á deci Wade, at -, end.” S.Ct. sion not to file a 5K1.1 govern motion. The provided claim mere sub argued ment holding the Court’s justify remedy. stantial assistance does Wade authorizes a district court to review right A Id. defendant has no even to an only allegations of discrimination on the basis a,“sub evidentiary hearing unless he.makes race, religion, “things or of that nature.” showing” stantial threshold of a constitution Supp.App. argument at 475. This lacks mer al violation. Id. it. The Court Wade stated that a district may grant relief to a defendant if the argues that the district court prosecutor has “an unconstitutional motive” authority depart had downward because —Wade, withholding for a 5K1.1 motion. had an' unconstitutional mot at -, By way U.S. S.Ct. at 1844. refusing ive for to file a 5K1.1 motion—to illustration, explained the Court that a penalize exercising him defen his constitutional dant prosecu would be entitled to relief if a laundering trial on the tor refuses to file a charges. Supreme substantial-assistance Court has held that motion-“say, because of the 'certainly may penal “while an individual be defendant’s race law, religion.” violating just certainly ized for It does not as follow that the Court, may merely by punished exercising protect listing paradigms not be two ” criteria, statutory right. impermissible or constitutional intended to create a Goodwin, 368, 372, v. hierarchy States 457 U.S. 102 pur constitutional liberties for 2485, 2488, (1982). poses Rather, S.Ct. 73 L.Ed.2d analysis. 74 is of section 5K1.1 It “punish a.person well settled that to unqualified phrase, court’s initial use of the plainly motive,” he has done what the law allows him “an strongly implies unconstitutional process to do is a any due violation of the most unconstitutional motive for with Hayes, basic sort.” Bordenkircher v. holding 434 a substantial-assistance motion is 357, 363, 663, 668, U.S. subject judicial 98 54 pe S.Ct. L.Ed.2d review. This includes (1978), Goodwin, quoted 604 nalizing exercising 457 U.S. at a for defendant his consti- guidelines apply 4. We targeted allegédly sentencing were in effect on at vindictive schemes, 14, 1992, noting problem "[t]o fit the ... October the date of Paramo’s sentenc- equal protection into an framework is a task too 521, ing. Kopp, United States v. 951 F.2d 526 rationally accomplished.” Procrustean to be (3d Cir.1991). 212, 225, Jersey, Corbitt v. New 492, 500-01, 439 U.S. 99 S.Ct. (1978) (quoting 58 L.Ed.2d 466 suggests 5. Paramo that such vindictiveness con- Pearce, 711, 723, North v. 395 U.S. 89 Carolina equal protection a stitutes violation of when it 2079, 2072, (1969)). S.Ct. 23 L.Ed.2d 656 We disparate sentencing results in decisions. The interpret therefore Paramo’s claim of vindictive Supreme rejected arguments alleging Court has process similar ness as a due violation. 1220 retaliatory motive prosecutor’s, of a East dence v. States United to trial.

tutional Goodwin, See vindictiveness. Cir.1992), prove actual (10th cert. 1549, 1555 er, F.2d 981 12, 384, 102 at 2492 S.Ct. & n. at 380 457 U.S. 2448, - 124 113 S.Ct. denied, U.S. Second, circum 12, in certain 2494. n.& (1993).6 665 L.Ed.2d suffi may facts show stances, a defendant is that a remand of vindic presumption a give rise to Paramo contends cient adopted 374, at 2489. court 102 at S.Ct. the district id. See necessary because tiveness. a position erroneous government’s of vindictive presumption under Wade depart authority to lacks court pro designed rule prophylactic a ness is alleged motive improper only where a rights where process due a defendant’s tect penalized she he or is that the defendant might re that the danger exists Para rejecting In trial. proceeding exercising legal a him for against tábate vindictiveness, prosecutorial mo’s claim 363, Bordenkircher, at 434 U.S. right. See not believe it did ruled that court Esposi 667-68; v. States United at 98 S.Ct. letter [the said the Government “that what Cir.1992). (3d 300, Because to, 303 F.2d 968 Constitutionally attorney] ais to Paramo’s ab “may in the operate presumption such , in Wade. as articulated reason impermissible motive,” improper any proof of an sence of ... that’s what not believe just do I 2488, 373, at Goodwin, 102 S.Ct. U.S. at 457 talking about.” in Wade was Supreme Court there exists-a where apply it will courts carefully consid Having ” at Supp.App. ‘vindictiveness,’ likelihood of “realistic statements court’s the district ered all 21, 27, 94 S.Ct. Perry, 417 U.S. Blackledge v. argument oral preceding both the context (1974).7 if a Even 2098, 2102, 628 40 L.Ed.2d whole, court’s find the as record and the a realistic likelihood establishes can Specifically, we ambiguous. ruling to be however, still vindictiveness, certainty whether degree of say with not' ob legitimate, proffer opportunity has an it had the believed the district Esposito, 968 for its jective reasons conduct. if depart downward authority under Wade 374, Goodwin, at 305; 457 U.S. see F.2d withheld it found (discussing North Carolina 2489 102 S.Ct. at to penalize motion 2072, 711, 726, Pearce, U.S. v. hold trial. Because we ceeding to (1969)). “[Wjhere the 2081, 23 L.Ed.2d appro authority, a remand has such legiti is attributable to conduct government’s Brown, 991 v. States priate, See reasons, apply- presump we will not mate Cir.1993). (3d F.2d 1166-67 F.2d at Esposito, 968 tion vindictiveness.”. IV. arguendo that Paramo Assuming of vindictive prove a realistic likelihood remand, could have the Paramo will On still ness, presumption of vindictiveness prosecutorial his claim of proving burden of case' because apply in this Schoolcraft, vindictiveness. United reasons, legitimate denied, proffered (3d Cir.1989), government has cert. evidence, for its objective record 543 based 107 L.Ed.2d S.Ct. govern a 5K1.1 motion. ways in refusal file general, there are two Paramo’s assistance was maintains prove a claim of vin ment can a defendant which compared the assistance First, may not substantial use evi- a defendant dictiveness. agree- make such an suggests that the Court intended to erroneously government also government scrutiny only enters of al- applies prerequisite judicial where ment a Wade agreement a 5K1.1 motion to file into a written leged prosecutorial misconduct. begin agreement. To and then breaches with, why only who pro- no defendants we see reason Supreme Blackledge, Court real- found enjoy plea agreements should into enter prose- where a of vindictiveness istic likelihood against pros- affords that the Constitution tection felony charges on a defendant cutor reindicted Additionally, since vindictiveness. ecutorial appealed a conviction after the defendant agreement not involve written itself did Wade charges. Blackledge, at 417 U.S. Wade, motion, misdemeanor see a 5K1.1 file 27-29, 169, 170, (4th Cir.1991), S.Ct. at 2102-03. we doubt given by Vega Jaime, sessment of the cost and benefit that would because Paramo agreed proffer moving" permissible a statement after the flowfrom is a reason for given complete withholdinga Id., others had statements adthit- motion. 112 S.Ct. ting According remand, therefore, their roles in the crimes. to at 1844. On government, gave proof the ing Paramo also a conflict- must meet the same standard of apply prosecutor's account of the division of and would in the context of a give significant locating charging prove failed to aid in anoth- decision: To actual vindic alleged co-conspirator. Finally, gov- tiveness, prosecutor er he must show that the Vega solely penalize ernment notes that both and Jaime withheld a 5K1.1 motion gave by testifying against exercising extra assistance him for to trial. sup- Paramo. These contentions are all satisfy burden, To Paramo will ported by evidence adduced at trial. Sihce government's have to establish that the stat legiti- has comeforward with justifications refusing to file a 5K1.1 explaining mate reasons its failure to file a motion, though supported by objective evi motion, presumption no of vindictive- dence, pretextual. Meyer, are See 810 F.2d applies. ness See id. at 305. rely, however, at 1245. Paramo cannot sole rely pre- Because Paramo cannot on a ly government's withdrawing on the letter sumption vindictiveness, prove he must plea [his] the 5K1.1 plead money laundering." App. offer "based on refusal to prevail. actual vindictiveness in order to at 12. In Wasman, 559,569, United States v. 468 U.S. Bordenkircher, Supreme Court held that 3217, 3223, 104 S.Ct. 82 L.Ed.2d 424 process simply no due violation occurs be proof, noted, Such as one court has is "ex- prosecutor cause a threatens a defendant ceedingly Meyer, difficult to make." charges with more serious to induce a Goodwin, F.2d at 1245. In plea, and then carries out that threat after successfully prosecuted indicted and the de- plead guilty. the defendant refuses to denkircher, Bor felony charge request- 363-65, fendant on a after he 434 U.S. at 98 S.Ct. at by jury charges. ed a trial on misdemeanor 668-69. Although Supreme Court found no ~evi- confronting While a defendant with the dence to ness, a claim of actual vindictive- punishment clearly risk of more severe may charging the Court declared that a "discouraging have a effect on the generally impermissible decision is not unless rights, defendant's assertion of his trial "solely" it results from the defendant's exer- imposition [is] of these difficult choices guaranteed legal right, cise of a rather than permissible-"attribute inevitable"-and prosecutor's ordinary assessment of the any legitimate system which tolerates and prosecution. Goodwin, societal interest in encourages negotiation pleas." 457 U.S. at 380 n. 102 S.Ct. at 2492n. 11. (quoting Id. at 98 S.Ct. at 668. Chaffin v. adopted The Court such a strict standard of Stynchcombe, 17, 31, 412 U.S. 93 S.Ct. proof apparently to accommodate "the broad 1985, (1973)) Although 36 L.Ed.2d 714 11cr- prosecutor discretion held to select prosecutor's denkircher involveda bring decisionto charges against an accused." Id. charges, more serious the same reason enjoy similarly ing applies Prosecutors to a decisionnot to make a 5K1.1 deciding motion for a reduction in sentence. See Ala broad discretion in whether to file a Smith, 794, 802, Sentencing bama v. 109 S.Ct. 5K1.1 motion. The Guidelines give 2201,2206, (1989)("a prose state that courts should substantial 104 L.Ed.2d 865 weight government's may evaluation of the cutor offer a `recommendationof a le charges' extent of a defendant's assistance. See nient sentence or a reduction of as 5K1.1, Moreover, part plea bargaining process") (quot U.S.S.G. cmt. n. 3. once ing Bordenkircher, determines that a defendant 434 U.S. at 667)); Jersey, substantially assisted, government at cf. Corbitt v. New has the 212, 223, 492, 499, power, duty, 58 L.Ed.2d 466 has the not a to file a 5K1.1 Wade, (1978)(state legislature leniency motion. - U.S. at 112S.Ct. at can extend government's sentencing guilty plea). mere "rational as- in in return for a 1222 defined is transaction” “financial term The V. any in check aof deposit alia, the as, inter affirm reasons, will foregoing the For U.S.C. bank. federally insured conviction. of judgment court’s

the un “specified phrase (4). 1956(c)(3), The § and sentence Paramo’s vacate will also array of We broad a encompasses activity” lawful consistent sentencing further remand including mail offenses, criminal and federal opinion. this Therefore, with there 1956(c)(7). §at Id. fraud. first the violated Paramo that question no is dissenting. Judge, ROSENN, Circuit that point 1956(a)(1)(A)(i),a of prongs § two case readily this concedes.. defendant.in the that I believe laundering within in engage not did the Govern- however, that claims, § U.S.C. of respect terms the with burden its carry to failed ment the back plough not did (1988) i.e., bécause crime, that the of element third mail the promote to purchases aided, into proceeds that he prove not did Government the re I Consequently, scheme. fraud cheeks the of deposit the abetted, caused I count conviction, on mail verse the promote intent specific the with dissent. respectfully therefore scheme. fraud upon relies primarily I. (7th Cir. Jackson, F.2d 832 States operated Act case, defendant the Laundering 1991). and Control In that Money The pro cash violating the The operation. of drug is one distribution provides deposit were illegal operation the she: from or ceeds if statute drew defendant account, the in bank involved property the knowing that (a)(1) telephone buy account the against the represents transaction a financial in Id. phones. and mobile beepers activity, of unlawful form some of proceeds the presented a Government such to conduct attempts or conducts con defendant the used were beepers involves in fact which transaction financial his busi of furtherance in drug couriers activi- tact unlawful specified of proceeds the court, the the Therefore, reasoned ness. ty— the with beepers the defendant the intent (A)(i) the continuing crimi the promoting intention n activi- unlawful specified violation in enterprise nal ty; 1956(a)(1)(A)(i). § § 1956(a)(1)(A)(i) 18 U.S.C. continued: is that it 1956(a)(1)(B)(i)provides "Section mo the however, to view unable are,We finan engage in person any unlawful intended ... as purchases phone bile designed it is knowing that transaction cial [de operations continued source, nature, own disguise the or conceal enterprise criminal continuing fendant’s] specified proceeds control ership, or 1956(a)(1)(A)(i). The § under activity. unlawful phones cellular prove not did conviction obtain To indeed role —or same played ‘ must Government 1956(a)(l)(A)(i), as operations drug § [defendant’s] role —in (1) conducted defendant prove beepers. 'involved transaction financial (2) knew activity, unlawful specified ceeds held Circuit Thus, Seventh transaction involved unless violated 1956(a)(1)(A)(i)is form some from derived were obtained illegally to use intends financial (3) participated activity, and from operation illegal advance money to transaction derived money was which 18 U.S.C. activity. further at;the “prac aimed question provision v. Munoz- 1956(a)(1)(A)(i); United ‘specified back plowing Cir.1991). tice (5th 170, Romo, activity’ promote activity.” provided the defendants with only way Jackson, 935 F.2d at 842. possible to convert otherwise worthless cash. into- Jackson instead found the de fendant violating 1956(a)(1)(B)(i) majority in this adopts case the rea- because “[t]he conversion of cash goods into soning Montoya* -holding that Paramo is way services as concealing or dis guilty of promoting the fraud because the guising wellspring of the cash' is a central checks would have been worthless had Para- concern laundering statute.” mo failed to cash Moreover, them. the ma- Id. jority claims that this case is distinguishable judice, the case sub majority con- from Jackson: cedes: Here, however, presents a The government presented no different theory [from Jackson gov- ]. The suggesting of the participants ernment does argue not that Paramo in- funnelled their cash back into the promote tended to the carrying on of mail mail fraud scheme or any equip- when, fraud he used cash derived from ment, devices, or objects other to assist embezzled treasury checks to purchase them in continuing the scheme. personal Rather, items. Maj. Opinion Therefore, at 1217. argues contends that he promote intended to mail Paramo, Jackson teaches he did not fraud at an point: earlier when he convert- “promote” the scheme aiding, abetting, ed the embezzled checks into cash. causing deposited checks to be Maj. Opinion at Finally, the majority bank. person concludes that a can promote only not The Government counters with United future ongoing unlawful activity, but also (9th v. Montoya, 945 F.2d 1068 Cir. prior unlawful activity. Opinion Id. at 1218. 1991). case, In that legislator former state I believe that such a faulty, conclusion is was. convicted of accepting a bribe in-the I adopt the Seventh analysis Circuit’s form of a check from an undercover FBI in Jackson. agent and depositing the check into his bank According to Black’s Dictionary, Law “According account. defendant], to [the “promote” something is to deposit “contribute to [its] check could have ‘promot growth ... or prosperity.” Black’s ed’ Law Dic- the unlawful activity, namely bribe, (6th tionary 1990). ed. It seems funda- because the activity had been completed mental one only can upon contribute to the receipt of the check from the undercov growth of a venture that is ongoing er or to be Agent.” FBI Id. at 1078. conducted in the future: It logically does not The Ninth Circuit disagreed, affirming the follow that one can an enterprise trial court’s holding that the defendant could that has already terminated.1 not have made use of the bribery funds unless the check was deposited and thus Moreover, as the recog- Jackson court mere act of depositing the check nized, was suffi- person promotes a scheme when cient to establish an promote. he or ploughs she back the proceeds thereof The district judice case sub to purchase implements, beepers, such as adopted the reasoning of Circuit, the Ninth illegal further the enterprise. However, as holding that depositing the checks constituí-' judice, the case person sub when a simply promotion of the mail fraud because it illegally uses purchase obtained funds to per- alternatively argues Government 1956(a)(1)(A)(i)(the that the defendant must conduct a gained defendants the confidence and inclination financial transaction "with the intent to to further defraud the IRS each time Paramo on of specified activity.”). aided, abetted, cashed, or caused a check to be Any confidence that the may defendants promoting thus illegal argu- scheme. This gained as result obtaining ment is wide of the mark because the issue is the checks came about after the checks were whether there was sufficient evidence that Para- cashed and therefore after the crime with which mo acted with an intent to the scheme charged. Paramo is at the time the checks were cashed. 18 U.S.C. appel- rehearing filed for petition constitute not do items, purchases such sonal who judges submitted having been lant enjoying the Simply crime. of promotion and of this the decision in participated pro- further not does illegal conduct of fruits the' of judges circuit available the other all of rather, part is that conduct; that mote judge service, no and active regular in has circuit the'defendant which for crime original having asked decision in To concurred who punishment. already received typically circuit of the majority rehearing, and be for must there punishment, additional justify service regular active in circuit of conduct, judges rather the. criminal future of promotion rehearing by the for voted having not criminal past fruits of attainment than is rehearing denied. for banc, petition conduct. defrauded undisputed is It STAPLETON, Judge BECKER, Judge take, not does Moreover, Paramo the IRS. ALITO Judge and Judge HUTCHINSON received he punishment issue banc. rehearing in granted would However, did he crime. committing be abet, cause aid, and not to commit implements buy in order cashed rather, paid schemes; fraudulent further Therefore, items. personal bought and bills simply him punish duplicitous is. it absent stole money retrieving the schemes illegal future at Jackson, F.2d See proceeds. such SUPERMARKETS IGA “prac PETRUZZI’S at aimed (section , INC. ‘specified proceeds back plowing tice activity.”). activity’ to conceal may be Although COMPANY, DARLING-DELAWARE violation Moy Corp.; Tallow INC.; The Standard charged with not 1956(a)(1)(B)(i),he was Isacs, Herman Company; Packing er “[tjhese provi two Moreover, crime. Inc. Supermarkets, IGA Inc., Petruzzi’s activities, the at different aimed are sions Appellant. represents, it class back plowing practice at first 92-7481. No. activity’ ‘specified hiding the at second activity, the Appeals, Court Jackson, activity.” ceeds Circuit. Third 7, 1993. June Argued sufficient sum, there abetting, aiding, 13, 1993. July Decided convict con- thus laundering, and causing I reversed. be must count on viction other all conviction affirm counts. REHEARING FOR PETITION

SUR

Aug. SLOVITER, Judge; Chief Before MANSMANN, STAPLETON,

BECKER, SCIRICA, HUTCHINSON, GREENBERG, ROTH, LEWIS NYGAARD,

COWEN, Judges. *, Circuit

ROSENN rehearing. panel

*As to

Case Details

Case Name: United States v. Alberto Paramo

Court Name: Court of Appeals for the Third Circuit

Date Published: Aug 6, 1993

Citation: 998 F.2d 1212

Docket Number: 92-1861

Court Abbreviation: 3rd Cir.