UNITED STATES оf America, Appellee, v. Ray L. BOWMAN, Also Known as Ray Delamotte, Lewis Bowman, Charles Clark, and G.L. Bowman, Appellant.
No. 00-1960.
United States Court of Appeals, Eighth Circuit.
Submitted: Sept. 12, 2000. Filed: Dec. 28, 2000.
235 F.3d 1113
The NHA, in fact, specifically prohibits the oral modification of mortgage agreements. “The Secretary shall not consent to any request for a modification of the terms of [any mortgage covering multifamily housing] except in conformity with regulations prescribed by the Secretary in accordance with the provisions of this section.”
May an official be said to be “carrying out the provisions” of an act when undertaking actions specifically prohibited by that act and by its implementing regulations? We think not. To permit suit for any such conduct would be to convert a limited waiver of sovereign immunity and equally limited grant of subject matter jurisdiction into a general invitation to litigation. Under VSLP‘s theory, any conduct by a HUD official could well be actionable. Accord Teitelbaum v. HUD, 953 F.Supp. 326, 330-31 (D.Nev. 1996) (reaching the same conclusion in a similar matter).4
VSLP argues alternatively that the district court erred by dismissing its suit rather than transferring it to the Court of Federal Claims. District courts shall, “in the interest of justice,” transfer actions over which they lack jurisdiction to any court in which the action could have originally been brought.
We affirm the district court.
Bruce W. Simon, argued, Kansas City, MO, for appellant.
William L. Meiners, argued, Kansas City, MO, for appellee.
Before HANSEN, HEANEY, and MORRIS SHEPPARD ARNOLD, Circuit Judges.
MORRIS SHEPPARD ARNOLD, Circuit Judge.
I.
One provision of the money laundering statute, see
Ray Bowman pleaded nolo contendere to six counts of money laundering, see
Subsequent to his plea hearing, Mr. Bowman moved to dismiss the relevant indictment, contending that the stipulated facts did not, as a matter of law, constitute the offenses charged. The district court denied the motion and sentenced Mr. Bowman to 77 months of imprisonment. Mr. Bowman appeals the denial of his motion.
With respect to six of those counts, Mr. Bowman stipulated that hе committed five bank robberies2 between late 1987 and early 1997, that he obtained approximately $5,225,000 in cash from those robberies, and that law enforcement authorities subsequently recovered a total of approximately $1,640,000 in cash from multiple safe-deposit boxes rented in his name. The essence оf Mr. Bowman‘s argument in regard to these six counts is that using safe-deposit boxes rented in his own name does not amount to the type of “substantial evidence of a design ... [or] intent to conceal,” United States v. Garcia-Emanuel, 14 F.3d 1469, 1475 (10th Cir.1994), that the statute requires. We disagree.
Mr. Bowman lives in Kansas City, Missouri. All five of the bank robberies took place outside Missouri, and Mr. Bowman opened at least onе new safe-deposit box outside Missouri within two days of each of the second, third, and fourth robberies. In addition, during the period of the rob-
From this evidence, we believe that a reasonable jury could infer that after each robbery, Mr. Bowman deposited at least some of the proceeds into one of his safe-deposit boxes and then, within a very short interval, shifted at least some of that deposit into and out of various other boxes. We also beliеve that the pattern and timing of the initial box rentals and all of the box visits, in association with each individual robbery, would allow a reasonable jury to infer that Mr. Bowman was deliberately moving the proceeds around so as to make tracking the money difficult. See, e.g., United States v. Posters ‘N’ Things, Ltd., 969 F.2d 652, 661 n. 7 (8th Cir.1992), aff‘d, 511 U.S. 513 (1994). Those inferences support our conclusion that substantial evidence exists to show that Mr. Bowman had the intent to conceal not only the ownership of the money in question but also its nature, namely, that it was stolen, and the fact that he possessed it. With respect to six of the counts related to money laundering, therefore, we reject Mr. Bowman‘s argument that the facts to which he stipulated are inadequate, as a matter of law, to show an intent to conceal information about the money in question.
II.
With respect to a seventh count under the same provision of the money laundering statute, see
At least two circuits have held that a design or intent to conceal the nature, the source, or the ownership of unlawfully obtained proceeds may be inferred when a defendant transfers those proceeds into the control of othеrs with whom the defendant has a very close relationship. See, e.g., United States v. Short, 181 F.3d 620, 626 (5th Cir.1999), cert. denied, 528 U.S. 1091 (2000), and United States v. Stephenson, 183 F.3d 110, 120 (2d Cir.1999), cert. denied, 528 U.S. 1013 (1999). It is the transformation of unlawfully gained cash into another form—in this case, the checking account of Mr. Bowman‘s girlfriend, and then into the items that she bought—that evinces the design to conceal. See, e.g., United States v. Norman, 143 F.3d 375, 377 (8th Cir. 1998). We therefore reject Mr. Bowman‘s contention that, as a matter of law, the stipulated facts in this instance are insufficient to amount to money laundering.
III.
The remaining two counts under the same provision of the money laundering statute, see
Mr. Bowmаn also stipulated that in 1995 the holder of the corporate account bought a 1995 car for approximately $24,400, then titled, financed, and insured the car in his own name rather than that of Mr. Bowman, and used checks from the corporate account to pay the loan installments. Mr. Bowman provided in cash, hоwever, all of the money that the holder of the corporate account used to pay for the car; Mr. Bowman was, moreover, the sole driver of the car.
Mr. Bowman makes no specific argument—in his original motion to dismiss, his appellate brief, or his oral argument—about these transactions. Presumably his рosition is that an intent to conceal may not reasonably be inferred either from the act of depositing money into another‘s checking account and then receiving payments from that account totaling roughly the same amount, or from the act of providing cash to another that totals apрroximately the same sum as the aggregated checks that the other person uses to buy a car that is driven solely by the person who provided the money. If indeed this is Mr. Bowman‘s position, we reject it.
Depositing unlawfully obtained money into a “seemingly legitimate business account ... and passing [the money] off as funds of a lеgitimate business,” United States v. Nattier, 127 F.3d 655, 659 (8th Cir.1997), cert. denied, 523 U.S. 1065 (1998), is sufficient evidence to allow a reasonable jury to conclude that Mr. Bowman intended to conceal the stolen nature of the money and its true ownership. See also United States v. Termini, 992 F.2d 879, 881 (8th Cir.1993). Using unlawfully obtained cash to buy a car that Mr. Bowman exclusively possessed and drove, which was ostensibly purchased by the holder of the corporate account with checks from that account, is also sufficient evidence to allow a reasonable jury to conclude that Mr. Bowman intended to conceal the stolen nature of the cash, the fact that he provided it to use for buying the car, and the true ownership of the cash. See, e.g., Norman, 143 F.3d at 377; cf. United States v. Baker, 985 F.2d 1248, 1251-54 (4th Cir.1993), cert. denied, 510 U.S. 1040 (1994). See also United States v. Green, 225 F.3d 955, 960 (8th Cir.2000). We therefore reject Mr. Bowman‘s argument, if indeed it is his argument, that the stipulated facts in regard to the relevant corporate checking account are insufficient to amount to money laundering.
IV.
A different provision of the money laundering statute, see
With respect to the first of these сounts, Mr. Bowman stipulated that in September, 1996, he bought a 1992 sport utility vehicle for approximately $12,000. He further stipulated that on the day of the purchase he paid $100 in cash, that a day later he paid $2,000 in cash, a cashier‘s check for $4,450 drawn from the corporate account discussed earlier, and a sеcond cashier‘s check for $4,600 from the same account, and that three days after that, he paid approximately $850 in the form of a check from his girlfriend‘s checking account.
With respect to the second of these counts, Mr. Bowman stipulated that in February, 1997, a friend bought a 1996 sport utility vehicle for $23,500, apрarently titled and financed it in his own name, and paid off the loan for it with four cashier‘s checks, the greatest of which was for $6,000, each of which was obtained on a
Mr. Bowman‘s argument in regard to these two сounts is not altogether clear to us, but apparently consists of the assertion that it was either the seller of the vehicle, the bank that drew the cashier‘s checks, or possibly the friend, who had the obligation under federal law to report any relevant financial transactions—presumably, in this case, the exchange of $23,500 for the vehicle and the execution of the cashier‘s checks in amounts of $6,000 or less. This argument misses the point by a long shot. What the money laundering statute prohibits is not the failure to report a certain type of transaction, see, e.g.,
Strangely, the indictment lacks any specificity with respect to the type of transaction by Mr. Bowman for which reporting was allegedly required, or even what statutes require reporting of some kind, and therefore the reporting requirements thаt Mr. Bowman allegedly sought to avoid. Neither party addressed this question in the district court briefs on Mr. Bowman‘s motion to dismiss. In its appellate brief, the government cites
We need not explore, however, the issue of the applicable statute, who had the duty to report, what amount was required to be reported, or what type of conduct amounts to a transaction that triggers a duty to report. This is because one of the elements of the “structuring” offense is the defendant‘s knowledge that the law requires certain transactions to be reported. See, e.g., United States v. Young, 45 F.3d 1405, 1413 (10th Cir.1995), cert. denied, 515 U.S. 1169 (1995); cf. United States v. Griffin, 84 F.3d 912, 925-26 (7th Cir. 1996), cert. denied, 519 U.S. 999 (1996) and 519 U.S. 1020 (1996). Nothing in Mr. Bowman‘s stipulations addresses his knowledge with respect to any federal transaction reporting requirements. Without such evidence, we cannot say that a reasonable jury could infer, without a reasonable doubt, that Mr. Bowman knew of any relevant transaction reporting requirements.
None of the authority that the government cites is on point relative to this part of Mr. Bowman‘s case. In four of the cited cases, there was direct evidence that the defendant (or a co-defendant who pleaded to the “structuring” offense and with whom the defendant had many conversations to decide how to arrange the transfer of cash) knew about the relevant transaction reporting requirements. See United States v. Walcott, 61 F.3d 635, 636, 636 n. 3, 638 (8th Cir.1995), cert. denied, 516 U.S. 1132 (1996); United States v. Mitchell, 31 F.3d 628, 630, 632-33 (8th Cir.1994), prosecuted under
Because Mr. Bowman‘s stipulations do not include enough information for a reasonable jury to infer, without a reasonable
HANSEN, Circuit Judge, concurring in part and dissenting in part.
I concur in all of the court‘s opinion except for its discussion and disposition of Counts 10 and 11 of the Indictment, the so-called “structuring” counts. In my view, our court reaches too far when it grants relief on a claim (a lack of specific knowledge of the regulation involved) which was neither advanced nor argued by the appellant in either his brief to this court or at oral argument. Because I would affirm all of the appellant‘s convictions, I respectfully dissent from the court‘s disposition of the two “structuring” counts.