466 F.3d 79 | 2d Cir. | 2006
Defendant-Appellant Samuel Ness was convicted, after a jury trial, of one count of conspiring to commit three money laundering offenses and one substantive count of violating 18 U.S.C. § 1956(a)(1)(B)© (“transaction money laundering”). The three objects of the conspiracy charged were violations of (1) 18 U.S.C. § 1957(a) (“monetary transaction in unlawful funds”), (2) 18 U.S.C. § 1956(a)(1)(B)®, and (3) 18 U.S.C. § 1956(a)(2)(B)® (“transportation money laundering”). Following denial of Ness’s post-verdict judgment for acquittal, see United States of America v. Ness, 2003 WL 21804973 (S.D.N.Y. Aug.6, 2003), he was sentenced to fifteen years’ imprisonment, with three years’ supervised release. On appeal, Ness raises a number of challenges to his conviction and to his sentence.
We assume the parties’ familiarity with the facts, the procedural history, and the issues on review.
Ness argues, inter alia, that the evidence presented at trial was insufficient to sustain his conviction with the respect to the element of “concealment,” which is applicable both to transaction money laundering and transportation money laundering. Specifically, the statutes proscribe certain “financial transaction^]” (in the case of 18 U.S.C. § 1956(a)(1)(B)©) and the “transportation, transmission, or transfer” of certain funds (in the ease of 18 U.S.C. § 1956(a)(2)(B)®) “designed in whole or in part ... to conceal or disguise the nature, the location, the source, the ownership, or the control of the proceeds of specified unlawful activity.” Here, the evidence showed that Ness, who ran an armored car carrier business, received
Some other circuits that have decided money laundering appeals would find this evidence legally insufficient because they have essentially adopted Ness’s reasoning. See United States v. Cuellar, 441 F.3d 329 (5th Cir.2006), reh’g en banc granted, 454 F.3d 505; United States v. Dimeck, 24 F.3d 1239 (10th Cir.1994); but cf. United States v. Carr, 25 F.3d 1194, 1206 (3d Cir.1994). But we interpret the provisions against the backdrop of Second Circuit precedent, most notably United States v. Gotti 459 F.3d 296 (2d Cir.2006). In that case, a panel of this court upheld convictions under 18 U.S.C. § 1956(a)(l)(B)(i) against a sufficiency challenge with respect to concealment where the evidence showed that defendants participated in a system of “tribute” payments from lower to higher figures in an organized crime hierarchy, with the proceeds deriving from unlawful activity. Gotti, 459 F.3d at 308-311, 337-338. In the view of the Gotti panel, the “highly complex and surreptitious” process through which the funds were transferred — involving coded language, the use of intermediaries, secretive handoffs, and cash transactions — sufficed to permit the inference that the deliveries “had been designed in a way that would conceal the source of the moneys.” Id. at 337; see also id. at 337-38 (citing approvingly to United States v. Prince, 214 F.3d 740, 752 (6th Cir.2000), and United States v. Cruzado-Laureano, 404 F.3d 470, 483 (1st Cir. 2005), for similar approaches to concealment).
We conclude that Gotti controls here.
In their briefs, the parties also devote considerable attention to Ness’s sufficiency of the evidence challenge the regarding jury’s finding that he or his business was a “financial institution”. But given our rejection of Ness’s sufficiency challenge on the “concealment” issue, we may resolve Ness’s appeal without taking up the financial institution sufficiency question. Of the offenses charged, either in the substantive or the conspiracy count, the involvement of a financial institution is strictly necessary only to 18 U.S.C. § 1957(a), Object One of the conspiracy count.
We do, however, consider — and reject — a second, related claim: that the jury instruction with respect to the financial institution element was flawed, and caused Ness prejudice. As Ness failed to object to the charge below, our review is for plain error. United States v. Miller, 116 F.3d 641, 672 (2d Cir.1997). In fact, the “financial institution” jury charge proposed by the prosecution and adopted by the court was inaccurate, as the government now all but admits. But Ness is unable to demonstrate that the error caused him prejudice. As discussed above, Ness’s conspiracy conviction could be sustained on the basis of its third object alone, which does not have “financial institution” as an element, so the relevant count for purposes of this challenge is the substantive count of transaction money laundering. The conduct that would qualify Ness or his business as a “financial institution” under the faulty jury charge would also satisfy the definition of a “financial transaction” in 18 U.S.C. § 1956(c)(4)(A), which forms an alternate basis for conviction. See Gotti, 459 F.3d at 335-36 (interpreting
We have considered each of Ness’s claims, and we find them all to be without merit. Accordingly, we affirm the judgment of the district court.
. Although Gotti's discussion of concealment concerned only an 18 .U.S.C. § 1956(a)(l)(B)(i) prosecution for transaction money laundering, we believe that it controls also with respect to Ness's prosecution under 18 U.S.C. § 1956(a)(2)(B)(i). As indicated above, the relevant concealment language is identical for both provisions. We follow the general rule that the use of identical language in different provisions of a statute is a strong indication that they are to be given the same interpretation, absent clear evidence that Congress intended otherwise. See Sompo Japan Ins. Co. of Am. v. Union Pac. R.R., 456 F.3d 54, 65 (2d Cir.2006). And Ness has offered no reason why the two provisions should be interpreted differently.
. Under the disjunctive structure of 18 U.S.C. § 1956(a)(l)(B)(i), a financial institution may — but need not — be an element of transaction money laundering, and in defining transportation money laundering, 18 U.S.C. § 1956(a)(2)(B)(i) makes no reference whatsoever to financial institutions.
. Nor do we believe that Ness's sentence would require reconsideration even if we found the evidence insufficient with respect to the financial institution element. By our calculation, the existence vel non of a financial institution would not affect the applicable range under the Sentencing Guidelines, nor was it relevant to the factors mentioned by Judge Hellerstein in setting Ness's sentence.