United States v. Robert Joseph Carr, Jr., in No. 93-1376. United States of America v. Walter Orlando Cardona-Usquiano, in No. 93-1383

total for offense level the two fraud counts III. (Counts 16). 2 and CONCLUSION 3146(b)(2) (1988) § Because 18 U.S.C. re- foregoing reasons, For the we will vacate quires any imposed for sentence ob- judgment of sentence of the district court imposed any struction consecutive to be oth- because the two-level increase for an sentence, separate er the court must out the position abuse of of trust under USSG portion corresponding of the total sentence 3B1.3, § and will remand to the district court Application to obstruction. The Notes to resentencing for opinion. consistent with this very contemplate posed 2J1.6 situation In respects, judgment all other will be

here: affirmed. example, applica- For where the combined guideline range

ble for both counts is 30-

37 months and the court determines a punishment” appro-

“total of 36 is months

priate, thirty a sentence of months for the

underlying plus offense a consecutive six appear

months sentence for the failure to satisfy requirements. count would these UNITED STATES of America comment, (n. 3). 2J1.6, Here, USSG v. court appropriate determined that the sen- Joseph CARR, Jr., Appellant Robert months, tence for the defendant 37was in No. 93-1376. (31-37 range maximum sentence in the months) based on its determination of his UNITED STATES of America history criminal and base offense levels. The court then sentenced the defendant to 31 on months Counts and six months CARDONA-USQUIANO, Walter Orlando (failure appear). on Count 47 This sen- Appellant in No. 93-1383. way counting, tence no involves double 93-1376, Nos. 93-1383. there was no error. argument Pardo’s final Appeals, is that his criminal States Court of history level for Count 2 Third should have been I Circuit. However,

instead of II. Pardo’s sentence for Argued Feb. 1994. imposed concurrently Count was with his Decided case, June 1994. sentence on Count 16. In this his sentence under Counts 16 and 47 would be Petition Rehearing Sur June 1994. history identical even if his criminal Count 2 Iwere instead of II.5 We decline to challenge

consider his to his sentence under

Count under this circumstance.6 States, 5. 736, 737, Based the total Ray amount of loss caused v. United 481 U.S. 2093, 2093-94, (in $200,000), (1987) (per Pardo’s wire S.Ct. fraud excess of 95 L.Ed.2d 693 his curiam), Supreme Court planning activity, accep- more than held that where a minimal his special imposed sepa- assessment was on three responsibility tance of and his obstruction of counts, they rate could not be considered concur- justice, his base offense level for the wire fraud Ray inapplicable rent sentences. here because would have been the same itas was for the bank subject separate Pardo would spe- still be Thus, together. and wire fraud based on the have, $50 cial assessment on each count. We history offense level for Count and a criminal appropriate, applied when the concurrent sen- (which of II for that count Pardo does not chal- Ray. tence doctrine after See United States v. lenge), his sentence would not have been differ- Inc., Pittsburgh, American Investors event, ent even if Count 2 were excluded. In (3d Cir.1989) (opting not to consider concept grouping, under the Guideline claims of individual defendants whose sentences together, offenses would be treated rather than were concurrent and involved no detrimental separately, argues. as Pardo effects). Philadelphia, Goldberger (argued), Peter Carr, Jr. Joseph PA, appellant, Robert for Mine- & (argued), Powell Lyons P. James PA, appellant, Walter Philadelphia, for hart, Cardona-Usquiano. Orlando S. Rotko, Atty., Walter U.S. J. Michael Zittlau Atty., Ewald Jr., Asst. U.S. Batty, (argued), Atty., PA, Asst. Philadelphia, cy, U.S. and several other co-defendants. The appellee, conspiracy was revealed by a cooperating witness engaged who BECKER, Before: HUTCHINSON and numerous laundering transactions COWEN, Judges. Circuit conspirators with the February, beginning

1989 and ending January, 1991. Javier Gonzalez, kingpin, THE OPINION OF COURT his wife Doris operated Gonzalez owned two businesses COWEN, Judge. Circuit in Philadelphia, Pennsylvania during the Along co-defendants, with numerous other course of conspiracy this agency travel —a (“Carr”) Carr, Joseph Robert Jr. and Walter (“Jav Travel”) G. and a beer distributorship. (“Cardona”) Cardona-Usquiano Orlando Margareth Gonzalez, Their daughter another charged were in multi-count indictment co-defendant, worked at during Jav G. Travel in a participating laundering con- period. time spiracy. charged Carr was with and convict- formerly Carr had employed ap- been ed of three conspiracy counts: to launder proximately years twelve ticketing as a man- money in violation of 18 U.S.C. ager with an company provided airline (“Count 1”); money laundering July flights commercial to Colombia. He met 1990, in 1956(a)(2), of violation 18 U.S.C. Gonzalez, Javier who frequently travelled to by attempting $186,000 transport to in cash South America for purposes, business while (“Count 21”); outside of the United States working job. at his former At trial Carr and failure to a file Customs Service curren- testified that he was friendly with Javier cy report, in violation of §§ 31 U.S.C. Gonzalez, regularly he flew with him as a 5322, and for attempting export to more than travelling companion, and he had been em- $10,000 11, (“Count in currency July on ployed as a tour coordinator for Jav G. Trav- 22”). Cardona charged was with and con- Cardona, el. national, a Colombian was a 1, victed of Count the conspiracy count. tenant duplex by house owned Javier Both Carr appeal and Cardona con- their Gonzalez. on by victions Count 1 arguing the evidence The United States Customs Service com- prove was insufficient beyond to a reasonable menced an investigation undercover of Javier they doubt that shared knowledge and early Gonzalez in 1989. A cooperating wit- necessary intent to guilt conspir- establish of represented ness himself to Javier Gonzalez acy. Carr challenges also sufficiency as a money launderer drug of cocaine traf- support evidence to his conviction on Count ficking proceeds. years, Over the next two 21, attempted money laundering count. the cooperating provided witness Gonzalez Furthermore, appellants both take with issue large quantities of cash to wire outside the district court’s denial of a downward country to Cayman Islands and Co- adjustment in respective their sentences for lombia, as well large quantities as of fresh being a minimal or participant minor in the bills exchanged $100 which were quanti- for offense of conviction.1 We find no error in ties of bills of smaller plus denomination the orders of district court and will af- commission. All of the individual transac- firm the convictions and imposed. sentences tions $10,000, involved sums well in excess and the total amount exchanged or wired out I. country year over period the two We will presentation limit our $1,250,000. factu- excess of Currency No Trans- background al to involving and Reports (“CTR”), Carr action which required are Cardona, as well as their interaction with to be filed with the for cash Gonzalez, Javier kingpin conspira- greater transaction of $10,000, than were 1. appeals Cardona also by arguing his illegal sentence drug from trafficking. appeals Carr also improperly district court $10,000 his enhanced the fine imposed part that was as by base money knowing offense level three levels for his sentence. conspiracy involved in the was derived for bills exchange of bills $100 next The G. Travel or Jav by Gonzalez Javier

prepared $90,000, denomination, took totalling Law enforce- smaller transactions. any of the and drugs cooperating to witness respond place between to trained canines ment by next provided May 1990. The the bills on Doris Gonzalez positively reacted exchanges monetary visit agents all Carr day, after observed surveillance Gonzalez in- bills, except in one report- May denomination 1990 Carr small On Jav G. Travel. dog was available. when passport stance or stolen at passport his lost ed alleg- passport Philadelphia. The

agency in Relating Carr A. Evidence numerous stolen edly lost or contained very short duration indicating trips of stamps trial established introduced Evidence Colombia, suspicions might raise the wit- cooperating on March time, inspectors. At the same of customs $45,000 to Javier bills brought $100 ness same-day re- emergency applied for an Carr illegal as Gonzalez, the cash alleging that he passport placement it be de- requested that proceeds, Kingdom travel to the United scheduled to account. bank Cayman Islands into a posited sup- day trip. day To for a seven the next in cash so deposited not be money could pass- checks, allegation, showed ranging port into five divided it was through were ticket issued two which an airline $9,500, port agency last fact, passport Carr’s May 1989. name. on his deposited G. Travel Jav Cayman Is- on that he traveled to Colombia England showed but traveled not May departed May day. lands on 4, 1990, staying for one May issued ticket was airline Carr’s in his resi- passport was found “lost” Carr’s Gonza- paid for Javier Travel Jav G. arrest. date of his on the dence lez. 1990, wiretaps were July, In and June 24, wit- cooperating August On Travel G. telephone lines at Jav on placed $150,000 with in bills exchanged $100 ness 9, July distributorship. On and the beer denomi- bills of smaller Gonzalez Javier exchanged witness 1990, cooperating he trav- that passport reveals nation. Carr’s at $190,000 Doris Gonzalez bills with in $100 Cali, on Colombia Philadelphia eled from denomi- agency for bills smaller travel 29, August 28, on returned August 1989 and 10, 1990, July following day, The nation. trip and paid for the Gonzalez 1989. Javier him and Carr told called Margareth Gonzalez accompanied Carr. day.” Appendix big is the that “tomorrow $100,- exchanged witness cooperating 11, 1990, (Carr) July 178. On (“App.”) 20, February 1990 with on bills 000 in $100 Carr, compan- Gonzalez, a female and Javier denomi- bills smaller Javier Gonzalez Air- Philadelphia International departed ion stamps showed passport Carr’s nation. Cali, Atlanta via Colombia port en route days four Cartagena, Colombia in he arrived area, departure In the airline and Miami. one-day 24, a February 1990 for on later carry- transferring a blue seen Gonzalez was financed González stay. Again, Javier to Carr. a wad of bills bag and on Carr Colombia. trip traveled and coach, in companion sat and his Carr Mr. $200,000in bills exchange $100 A similar first in who was from Gonzalez separated place took smaller denomination for bills Miami, passengers all layover in class. At a Phila- from 24, traveled 1990. Carr April Cus- stopped were including Carr day, April Cali, the next Colombia delphia to that a Curren- advised Carr toms. Customs pass- 1990, Carr’s Gonzalez. with Javier (“CMIR”) Report Monetary Instruments cy April stamp dated an exit port showed transportation to show the filed must be departure Colombia. indicating his from $10,000 the United out of in cash excess testified trips, respect to all these Carr With request, declaration response to a States. money for Gonzalez carry any did not that he carrying he was told Customs along went country and he out of possess $4,000 he did in and that cash travelling companion. only as a with Gonzalez $10,000.2 During hours, cash in excess of a lawful to return in placed several a call was search, $180,000 Customs found bills from phone $100 Jav G. Travel to regis- number matching with serial numbers those on bills Shortly thereafter, tered to Cardona. Car- provided by cooperating May witness on co-defendant, dona and a who carrying mugs 1990 in two coffee and a talcum green shopping dark bag, arrived at Jav G. carry-on bag. container Carr’s blue An Travel, stayed minutes, a few and then de- $6,000 sum of additional bills was $100 parted. Company legiti- showed records no found on Carr. Javier. Gonzalez was not mate place business transaction took between detained. Jav G. Travel and either of the visitors on cooperating date. When the witness placed Carr was not under arrest. When returned, provided he was questioned with the money, about the Carr told U.S. $5, $10, and his commission in picked Customs officials that up he had bill $20 bag from a train denominations. cooperat- station locker in Philadel- Gonzalez told the phia anonymous phone after an call. witness that he had been short because his, bag stated that the was not that he did he did not accept exchange want to $1 bag, not know who owned date, and that he bills. On this drug-sniffing no canine expecting Cali, a call at a hotel Colom- was available to drugs ascertain whether bia to instruct him where to deliver it. After particular had contaminated the bills. questioning, several hours of Carr was re- Cardona was also entering observed Jav G. leased Miami. Javier Gonzalez had con- Travel on four other occasions around the tinued on to Colombia. time cash transfers taking place were be- released, After he was Carr called Jav G. tween the cooperating witness and Javier spoke Travel and Margareth and Doris 8, 1990, Gonzalez. On March Cardona en- Gonzalez. Carr told Doris Gonzalez that “I tered carrying Jav G. Travel a box with a co- just Customs,” got out of and that “if he calls defendant. Cardona entering was also seen (Carr) you ... gone.” it’s all App. at 187-88. Jav G. Travel with a April co-defendant on upset Doris Gonzalez became phone. on the April April 1990. On two of evening, Later that spoke Gonzalez Javier these occasions the carry- co-defendant was his wife Doris who told him that Carr had ing bag, while on the third occasion Cardo- called Miami and “they told her that carrying na was bag. a black No evidence everything.” took Id. at grand 194. After a presented was concerning the contents of the jury returned a naming sealed indictment bags. box Records seized from the counts, him on the money laundering three agency travel legitimate reveal that no busi- Carr was arrested at his mother’s home in ness transaction was consummated between Philadelphia living. where he was parties on of these dates. B. Evidence Relating to Cardona May 28, 1992, On a search warrant was Evidence introduced at trial showed that executed at Cardona’s residence in Philadel- Medellin, Colombia, Cardona was born in phia. Cardona and a co-defendant ar- were in 31,1989, arrived May United on States $22,900 rested. Police found in cash in small legal permanent and was a During resident. places denominations hidden in various in the course of the laundering conspira- Cardona’s master totalling bedroom. Cash cy, living Cardona was duplex in á in house $10,500 $1, $5, approximately $10, and $20 Philadelphia by owned Javier Gonzalez. denominations was hiding found several 20, Completion April exchange 1990 places in the duplex common basement of bills between the cooperating witness and house. Also found in the basement were delayed Javier Gonzalez was for glassine several bags eleven boxes of commonly used $14,500. hours because Gonzalez was short package drugs for street sale. No evi- After Gonzalez cooperating asked the witness drugs being dence of found in the house was 12, 1984, 2. transportations Prior October required cash were reported to be on CMIR's. $5,000 outside of the United excess of

1201 challenging sufficiency of trial, dog did fendant but narcotics at presented heavy evidence burden. bears drugs on the curren- presence of alert to the base- and bedroom cy 416, found Cardona’s Casper, 956 F.2d 421 States v. United omitted). (citations (3d Cir.1992) ment. government police, de- Cardona questioned When The must establish a unity purpose, though Gonzalez knowing even Gonzalez nied an intent to achieve a com goal, agreement togeth liv- was in which Cardona the house owned mon and an to work er in order to convicta criminal defendant of controverted ing. This statement conspiracy. McGlory, indicating Gonzalez tape-recorded evidence United States v. 309, (3d Cir.1992), denied, cooperating witness F.2d 321 -, cert. - had introduced 415, 5, Records seized U.S. (1992), 113 S.Ct. 121 L.Ed.2d 339 July on Cardona -, 627, 28, May 1992 con- and - U.S. Travel on from Jav G. (1992), -, L.Ed.2d 559 and - U.S. showing the receipts money order tained 1388, (1993). S.Ct. 122 L.Ed.2d 763 Howev from the and his wife by Cardona transfer er, conspiracy also a convictionfor does not re various individuals United States quire every in the of sums element of the crime be Colombia named Cardona proven 1990, $20,600 $45,140 for with direct evidence. See id. Rath for amount er, government rely entirely $15,700 can on cir $14,040 1992. Car- and prove alleged cumstantial evidenceto conspirator that an return, which indicat- tax 1990 federal dona’s knowledge consultant, had the and intent self-employed as a that he ed necessary Id.; to commit the crime. Iafelice, in taxable income. reported (3d 96-98 Cir.1992). When the relies II. purely evidence, however, on circumstantial logical jurisdiction pursuant to 28 "the inferences drawn must have a We have convincing 3742(a) and and connectionto the facts estab § 1291 and U.S.C. U.S.C. Casper, (citing (e) of the defen lished." 956 F.2d at 422 appeals these to consider McNeill, imposed. United States v. dants’ convictions sentences (3d Cir.1989), convic 493 U.S. appeal their Cardona Both Carr and (1990)). count, arguing that S.Ct. 107 L.Ed.2d 1055 conspiracy tions presented there was insufficient indict conspiracy count of the beyond doubt that prove a reasonable trial to know alleged the co-defendants ment knowledge neces intent they shared intentionally engaged in three re ingly and money. em conspire to launder We sary to (1) objectives: impeding Unit lated criminal when following of review ploy standard reports to collect accurate efforts ed States chal sufficiency of evidence considering a curren relating to domestic information lenge a conviction: after (2) $10,000; con cy in excess transactions violation of transactions in ducting financial the ver- appellate court must sustain [A]n 1956(a)(1) designed to conceal 18 U.S.C. substantial evi- jury if there is dict of location, nature, source, disguise the dence, light most favorable viewed speci of proceeds of ownership, control Government, jury’s uphold to the activity, namely the felonious fied unlawful whether evi- determining decision. (3) illegal drugs; and of sufficient, sale and weigh not evi- distribution we will dence is money from transferring credibility transporting and of wit- dence or determine the United States Philadelphia grounds outside on the Appellate reversal nesses. of violation and Colombia in Cayman Islands confined be of evidence should insufficient 1956(a)(2). can convictions prosecu- 18 U.S.C. of the to cases failure where if there is sufficient appeal upheld on not be be need tion is clear. The evidence beyond a prove save circumstantial every conclusion with inconsistent Cardona that Carr and doubt a case reasonable long it guilt, so as establishes that of acts intentionally committed knowingly and jury the defendant could find from which objects of any the three furthering of A de- doubt. guilty a reasonable beyond States, conspiracy objectives. v. conspiracy. respect See criminal With Griffin 466, 469-74, 46, - - -, S.Ct. conspiracy objective, engaging to the second (1991) (guilty 116 L.Ed.2d 371 verdict in a transactions, money laundering in domestic multiple-object conspiracy need not be set evidence showed that Cardona made numer- though the evidence is not aside even ade trips immediately prior ous to Jav G. Travel support quate to the conviction as to one of exchange money cooper- to an between the Vastola, objects); v. United States ating witness and Javier or Doris Gonzalez. (3d Cir.1993). Thus, F.2d 1330-31 produced conclusively Evidence at trial es- hindsight viewed in the evidence need not large money tablished as fact that transfers prove that Carr and Cardona each committed filed, place, took that no CTR’s were that furthering objectives all acts three over in small denomination bills was conspiracy. apartment found in Cardona’s on the date of arrest, drug packaging his equipment discussing all the evi

Without apartment, was confiscated at his and that tending prove guilt, dence Cardona’s we drug-sniffing posi- trained conclude that a rational trier of fact canines reacted could beyond tively to provid- find a reasonable doubt that Cardona the small denomination bills engaged by in at the last conspirators.3 Although least two three ed the visits (3d Cir.1993) argue (relying scholarly history 3. Both Carr and Cardona evi on two positive drug-sniff concerning Corps Army Engineers dence identifica books and a U.S. re by port, judicial tions the trained canines should not be con court took notice fact that the probative guilt, given Pennsylvania sidered have studies Canal was or could be used in seventy ninety-seven commerce), - U.S. -, shown that between interstate percent (1994). all cash in circulation the United 127 L.Ed.2d 373 quantity States is tainted with sufficient Because we decline the defendants' invitation dog. cocaine to alert a trained See United States judicial nearly to take notice of the fact that all ($53,- Fifty-three Eighty-two v. Thousand Dollars currency illegal contains detectable traces of nar 082) Currency, cotics, in United States dog we consider the alert evidence as (dicta (6th Cir.1993) questioning 250-51 n. 5 piece tending another of evidence to show that evidentiary dog's value of a trained alert to cur Carr and Cardona knew that the involved rency); Thirty-nine United States Six Hundred conspiracy illegal in the was derived from Fifty-eight Thousand Five Hundred and Dollars trafficking. by We note that the cases relied on ($639,558) Currency, in United States authority, Carr and Cardona for that courts of (D.C.Cir.1992) (dicta discussing 714 n. appeals increasingly calling dog are alert evi studies). Citing only to these two cases as au doubt, proposition only dence into discuss this thority, they argue nothing. that the alerts mean indepen dicta because in both cases the courts dently upheld argument requested At oral court grant a trial court's aof motion to judicial large per take notice of the fact that a suppress the cash as evidence. United States v. centage of dollar bills in circulation is tainted $53,082, 250; $639,- 985 F.2d at United States v. narcotics, illegal directing without the court Furthermore, 955 F.2d at 714. this court any particular study. recognized has that a district court has discre dog's 201(f), currency tion to admit a judicial trained alert to as Under Federal Rule of Evidence guilt. Headley, adjudicative evidence of may See United States v. notice of an fact be taken an However, (3d Cir.1991). appellate F.2d 1082 n. 1 On this court. the "fact must be one record, subject say dispute we to reasonable in that it is cannot that the district court (1) generally admitting dog either known abused its discretion in within the territorial sniff (2) jurisdiction capable of the trial court or evidence. Furthermore, ready accurate and determination resort to neither Carr nor'Cardona has accuracy challenged dog sources whose cannot reasonable be the admission of the sniff evi 201(b). Becker, questioned.” plain Judge dissenting Fed.R.Ev. We decline to dence as error. judicial point, agrees take notice in this instance because we on this that admission of the evi error, plain do not believe that such a fact is either common dence does not rise to but states that ly readily through dog given absolutely known or determinable un the sniff evidence should be questionably Compare Carley weight sufficiency reliable sources. v. no in our review of the of Coach, 1117, Cir.) (3d inherently problematic. Wheeled 991 F.2d 1126 evidence because it is (quantity government Judge ap and nature of tests con We believe Becker our misconstrues cerning pellate reviewing sufficiency vehicle rollovers "are not matters of role in the of the knowledge, they readily prova undertaking sufficiency common nor are evidence. When a of review, through accuracy principle ble a source whose cannot evidence it is a fundamental - denied, reasonably questioned”), proper appellate be U.S. that "it is not the function of an -, 191, (1993), weigh 114 S.Ct. 126 L.Ed.2d 150 to court Giuliano, evidence anew.” United States v. 582, (3d 1959). Pozsgai, with United States v. 999 F.2d 731 263 F.2d 584 Cir.

1203 $22,000 in cash to Haiti only to transfer are service Travel to Jav G. by Cardona made with period, month combined guilt, frequen the over a five of evidence circumstantial “logical drug trafficking, was sufficient to trips provide a the evidence nature of cy and count); money laundering estab to the facts United convincing connection convict on (8th Blackman, trial, F.2d at 422. The Casper, 956 v. lished” at States quantity Cir.1990) of cash large a into evi- (government’s of such introduction presence residence, canines which trained laundering had money defendant Cardona’s dence that drug presence of to, along the with proper, alerted source of income was legitimate no cir provides further equipment, packaging inference that dispositive, raise but not to linking directly Cardo- evidence cumstantial drug ac- illegal distribution funds came from conspiracy and money laundering na to the tivities). money involved indicating that he knew evidence, of the Based all circumstantial trafficking. drug illegal from derived was juror con- a could believe that rational we Ramirez, 954 F.2d v. States See United that Cardo- beyond a reasonable doubt clude (5th Cir.) permissibly (jury could 1039-40 intentionally agreed to work with na resi at defendant’s money found infer goal— common conspirators a other towards activity illegal proceeds of dence Ac- laundering drug proceeds. illegal tending to show that defen evidence uphold Cardona’s convic- cordingly, we will trafficking of a a member dant was - conspiracy count. on the tion U.S. -, ring), cert. (1992). 3010, 120 L.Ed.2d 884 evidence, sufficiency of reviewing the III. trier of fact a rational conclude that

we also doubt beyond a reasonable could find being to convicted on In addition illegally transfer mon to conspired Cardona count, was also convicted conspiracy native to his States ey outside of money laundering, and attempted Count Colombia, objective conspira of the the third currency export failing an to file Count receipts from Jav obtained cy. Money order chal appeal Carr report. On transaction $45,140 totalling Travel revealed transfers G. conspiracy convictions on the lenges his to presumed be people from Cardona laundering money attempted count and the family in in 1990 Colombia of his members count. filed for were No CTR’s or CMIR’s alone. conviction on can sustain We Carr’s year, That same any of those transactions. if, to determin in addition conspiracy count in income to reported Cardona provided sufficient ing tax return. When government on his agreed with the prove that he evidence evidence, totality light viewed was money, there conspirators to launder drug packaging including the confiscation jury to conclude sufficient evidence for residence, large his such equipment from guilty was that he beyond a reasonable doubt money person amount of sent laundering charged in as attempted via wire transfers limited income Colombia corresponds this count 21 because jury Count for a reasonable sufficient evidence conspiracy. object of See the third participating to convict Cardona of. Grif at - - -, at 469- S.Ct. fin, 502 U.S. laundering conspiracy. See United Hence, (3d turn to the evidence we will first Massac, Cir. (evidence guilt on that count. 1989) use of a wire of defendant’s dog determined that case we have appellate in this clear that Supreme Court has made jury, properly presented to the sniff weigh or to the evidence courts are not "to weight what our view of jury cannot substitute credibility we of witnesses. The determine during guilt/in- should that evidence receive is substantial if there verdict must be sustained jury’s. Fi- for that of the evidence, determination nocence taking most favorable to the view Judge his Becker has added Government, nally, extent support v. United it.” Glasser 457, 469, unreliability dog as 60, 80, sniff evidence States, view on S.Ct. cases, deciding it is judges other (1942). guide determine that the we L.Ed. 680 Once jury, presented dictum. properly 1204 21, government charged laundering property representing

In Count the the the $186,000 attempting transport proceeds activity, to out of of unlawful is defined in 1956(c)(1): 11, country July § the on 1990 violation of 1986, Anti-Money Laundering the Act of 18 “knowing property term [T]he that the 1956(a)(2)(B). § This criminal statute U.S.C. repre- involved in a financial transaction provides part: in relevant proceeds sents the of some form of unlaw- attempts transport ... ... Whoever activity” ful person means that the knew place funds from a in the United property involved the transaction through place or outside the United form, proceeds of some States ...— though form, necessarily which of ac-

tivity felony State, that constitutes a under Federal, foreign or law. (B) knowing ... funds involved 1956(c)(1). transportation ... represent § 18 U.S.C. proceeds of some form of unlawful activi- distinction between subsections ty knowing transportation that such 1956(a)(1) 1956(a)(2)(B) is that for designed in part— whole or in laundering property, mer criminalizes the (i) nature, disguise to conceal or rather than funds. Because we find this location, source, ownership, slight, distinction so we believe that Con proceeds speci- or the control of the gress 1956(c)(1), § intended the definition of activity; fied unlawful above, quoted apply equally which is laundering

violations statute which property. involve funds instead of Re shall be ... sentenced to a fine or im- definition, lying on this we hold that prisonment ... or both. requisite scienter element is established in 1956(a)(2)(B)(i). § Id. This criminal statute present case if the evidence shows be contains two scienter elements as reflected yond a reasonable doubt that Carr knew by Congress’ “knowing” use the term carrying represented pro funds he was language twice in the of the section. See id. any activity ceeds of form of unlawful appeal, argues On the evidence felony state, federal, foreign is a under was insufficient for a rational trier of fact to Isabel, law. See United States v. 945 F.2d beyond find a reasonable doubt he had (1st 1193, Cir.1991);4 1201 & n. 13 see also component required either of the scienter Koller, 1408, United States 1411 a conviction under the statute. (7th Cir.1992); Mickens, United States v. The first scienter element in the denied, (2d 1323, Cir.1991), F.2d cert. required proof statute that Carr knew the - -, 940, 112 S.Ct. carrying July in cash he was on (1992). L.Ed.2d “represented] proceeds of some activity.” form of unlawful carrying Id. The actual Carr was 1956(a)(2)(B). specifical- July directly This clause is not 1990 was not derived statute, sales; ly although defined in an analo- it had been withdrawn from gous 1956(a)(1), criminalizing clause from a U.S. bank account and was legislative history directly exactly 4. The [T]he does not reveal defendant need not know what Congress what intended generated as this first scienter crime the funds involved ain trans- congressional reports element because no were action, only proceeds that the funds are the Anti-Drug submitted with the Abuse Act of felony some kind of crime that is a under Anti-Money Laundering which contained the Act Federal or State law. will This eviscerate the 5393; of 1986. See 1986 U.S.C.C.A.N. defense that a defendant knew the came funds Stavroulakis, (2d crime, thought from a but the crime involved Cir.1991), -, - U.S. "specified" was a crime not on the list of (1992). 118 L.Ed.2d 580 related Senate A (c)(7). crimes in section however, report, Congress indicates that intend (1986). S.Rep. Cong., No. 99th 2d Sess. 12 monetary pro ed to criminalize all transfers of designated felony ceeds derived from crime under state or federal law: supra agent conspirators other described at by an Gonzalez provided to Javier However, 1199-1200, pp. that the his travel the fact with Javier Gonza- government. the just not the transporting flight was two money was lez on a scheduled Colombia Carr activity later, $186,000 is made proceeds days possession of unlawful and his actual “rep- by Congress’ of the word matching use irrelevant serial numbers bills with $100 exchange the statute. After resent” the provided by cooperating those witness drug for money illegal sales derived provided for a rational sufficient evidence by cooperating provided bills fresh $100 jury beyond to find a reasonable doubt witness, transported Carr bills the $100 represented proceeds Carr knew the cash illegal drug money. clearly represented the laundering illegal money from that derived laundering by money the crime of Because exchange.5 change of crimi- very nature involves the its theory, Independent of this there currency or profits into other forms of nal sufficient circumstantial evidence was also Congress intended a we believe property, jury beyond for a rational to find a reason to be convicted under criminal defendant that Carr knew the cash he was able doubt involved the actual funds statute when drug carrying represented proceeds from transportation “represent” attempted trafficking. agree We with the Court activity. proceeds of some unlawful Appeals Eighth that in order for the Circuit 1956(a)(2)(B); United see also U.S.C. laundering at person for to convict (7th Jackson, money, tempting govern launder (defendant Cir.1991) need know par proceeds “trace -the to a ment need not proceeds of unlaw- “involved” thé transaction [drug] sale.” States v. Black ticular activity). In order to convict a defendant ful Cir.1990). (8th man, F.2d 1956(a)(2)(B), it is suffi- a violation of Thus, government proper it for the government prove the defen- cient that the na prove knowledge of the criminal Carr’s was de- involved dant believed entirely through proceeds cash ture though, in illegal activity, even rived from an evidence. circumstantial fact, government funds came from a source. evidentiary in favor Drawing all inferences jury government, we note that government failed to argues that the concerning testimony Carr’s numerous heard beyond doubt that he prove a reasonable Cayman and Colombia trips to the Islands carrying represent- money he was knew the just exchanges place took between after cash reviewing illegal activity. In proceeds of ed cooperating and the or Doris Gonzalez Javier record, inde- appropriate find two we knowing and fre- Carr admitted witness. jury could illegal activities that the pendent Gonzalez, the travelling quently with Javier to conclude that reasonably have relied on laundering conspir- ringleader of this funds some form knew the , jury about an occasion acy.6 The heard First, proceeds. criminal Javier Gonzalez in order passport officials Carr lied to when illegal engaged uncharged in an domestic would not passport which to obtain a new $190,000 money laundering exchange of with showing stamps visits numerous contain days before Carr cooperating witness two also duration to Colombia. Evidence short Although there is no stopped in Miami. officials lied to Customs shows that Carr presence at this establishing Carr’s evidence bag the blue contain- how he obtained including about exchange, circumstantial was eonfis- bills that ing the $100 between Carr phone conversations recorded generated brief, knew that the defendant did conduct In Carr notes that his proceeds. theory charge in the indict- him under this (Carr) n. 11. Appellant at 19 ment. Brief because, previ- apparently have so as we This is an intimate association 6. Evidence of discussed, requires only proof ously ringleader one conspiracy the statute a factor relied money represented mon- a conviction for appeals the defendant knew the to sustain court of sufficiency “any") laundering evidence attack. proceeds (meaning ey unlawful con- of some (2d Cota, fact, did indictment on this count See United duct. not, Cir.1992). not, allege any specific unlawful and need 1206 11, funds, July Taped disguise but also in Miami on 1990.7 tent to the where the

eated designed phone conversations from both before the defendant knows someone else the confiscated, money intending disguise flight and the was transaction the funds. after 1199-1200, Awan, 1415, supra pp. provide v. described at See United States 966 F.2d (11th Cir.1992) incriminating (quoting evidence that Carr knew the 1424-25 United Ortiz, 1394, money carrying had been derived F.Supp. he was 1401 States v. Furthermore, (S.D.Fla.1990)). illegal pos- transactions. interpreta- such an Under drug sniffing dogs tion, itive alerts trained government prove must the money likely indicate that much of the defendant knew that the funds were derived Thus, drug cannot used in transactions. we activity from an unlawful and that the defen- jury beyond say a rational could not find transportation dant knew the was undertak- a reasonable doubt that Carr knew the mon- disguise money in en to or conceal the some ey carrying represented proceeds he was of material fashion. See id. at 1424-25. In drug trafficking. illegal Awan, the court overturned the conviction of money laundering a defendant because there disputed The second scienter element of prove was insufficient evidence to that he required proof the statute that Carr knew conspirators knew the other had de- transporting that his act of the funds was signed complicated banking transactions to “designed part in or in or whole conceal disguise money. or conceal the source nature, location, source, disguise the Id. at 1433-35. ownership, proceeds control of the or the activity.” specified unlawful 18 U.S.C. government presented The evidence 1956(a)(2)(B)(i). “Specified § activi- unlawful jury was sufficient for a rational to find Carr ty” broadly in defined the statute as mean- guilty beyond a reasonable doubt under such ing any activity specifically act or that is a theory. presented Evidence that on 1956(c)(7). § felony Id. listed crime. July 11,1990 carry-on received the blue felony listed offenses include traffick- bag Philadelphia Airport at the International 1956(c)(7)(C). ing. § See id. from Javier Gonzalez. When asked to de- In order to convict Carr under monetary all in clare instruments excess of required Count was not $10,000 Airport, Miami Carr stated prove that Carr knew the he was $4,000 A he had cash. subse- carrying proceeds specified un was “the quent carry- consensual search of Carr’s blue 1956(a)(2)(B)(i). activity,” lawful id. Rath $180,000 bag revealed cash secreted er, requires only the statute that Carr knew mugs pow- two coffee thermos and a talcum transporting his act of the funds was de addition, carry- der In container. Carr was nature, signed disguise or its conceal person. bills on his When $100 source, ownership, or control. See United possess bag, asked how he came to (4th Campbell, States v. 977 F.2d highly suspicious, told officials a if Customs Cir.1992) (interpreting analogous proper incredible, story that he had received an subsection, ty money laundering 18 U.S.C. anonymous phone telling call him to retrieve - 1956(a)(l)(B)(i)), it transport from a train station locker and to -, 1331, 122 (1993); L.Ed.2d 716 By returning guilty it to Colombia. verdict Massac, United States 867 F.2d 177- count, jury obviously on this resolved a (3d (same). Cir.1989) credibility government. in favor of issue agree appeals with one court of It is not We our role to disturb that determina- sum, interpreted appeal. has this scienter element to allow tion on we conclude that all money laundering jury for a conviction under the this evidence was sufficient for beyond statute not where the defendant has find a reasonable doubt that Carr personally designed designed currency in- transaction with knew Gonzalez had Lying might sufficiency pro- to law enforcement officers tain a conviction in a of evidence alone, guilt standing Cota, 760-61; vide insufficient evidence of but in provides challenge. See 953 F.2d at United evidence, conjunction lying with other Gallo, (5th Cir.1991). States v. 927 F.2d guilt an allowable inference to sus- to a in a manner to conceal was entitled base level reduction for

transportation scheme source, nature, ownership being participant or a minimal or minor disguise the activity. money. Bierley, criminal States v. United (3d Cir.1990); Thus, conviction on we will affirm Carr’s Ortiz, (3d 126-27 laundering which arose count Cir.1989). -When the district court’s denial of $186,- transportation of attempted his adjustment primarily a downward is based 11, July 1990. also on We 000 to Colombia legal interpretation on a of the Guidelines the presented to the that the evidence conclude erroneous, defendant claims to be we exer beyond a prove reason jury was sufficient plenary Bierley, 922 cise review. F.2d at agreed with the other able doubt that Carr contrast, By 1064. when the defendant takes money participate in the laun conspirators to issue with the district court’s denial of a ample there is dering conspiracy. Because being par reduction for a minimal or minor on Count support his conviction ticipant primarily which was based on factual object 21, third corresponds to the determinations, only we review for clear er laundering conspiracy, we will Price, ror. United States v. 13 F.3d conspiracy on the also affirm his conviction - (3d denied, Cir.1994), U.S. -, cert. at - - -, Griffin, 502 count. See U.S. (1994); Bierley, S.Ct. 128 L.Ed.2d 485 at 469-74. 112 S.Ct. 1064; 3B1.2, § at see also U.S.S.G. comment, (the (backg’d.) adjust decision to IV. partic downward for minor or minimal alternative, ipation, or the intermediate “in A. heavily depen volves a determination that is appeal and Cardona the sentences Carr case”). upon particular dent facts a argue imposed the district court. Both pursuant to United States Sentence Commis- argues the district court (1993) Manual, sion, § Guidelines 3B1.2 First, independent erred for two reasons. he (“U.S.S.G.”) in that the district court erred contends that his role in his “relevant con adjust- denying request a their for downward minor in duct” was as U.S.S.G. defined guideline in level on the ment offense participant any § “[A] 3B1.2. minor means playing “mitigating role” in the a basis participant culpable who is than less most money laundering conspiracy. guide- This participants, role could not other but whose line states: 3B1.2, be described as minimal.” U.S.S.G. on the defendant’s role in the of- Based comment, (n. 3); see also United States v. fense, the offense level as follows: decrease (3d Cir.) (discuss Tsai, 166-67 (a) partici- a minimal If the defendant was participant”), of “minor definition any activity, criminal pant decrease - denied, -, by 4 levels. (1992). L.Ed.2d 54 n (b) partici- If a minor the defendant was Assuming, arguendo, the district activity, pant in criminal decrease properly his conduct to court limited relevant by 2 levels. surrounding on his conviction activities (a) (b), falling In cases between de- (attempted money laundering), Count crease 3 levels. argues that his role as a mere courier requested a 2 level U.S.S.G. 3B1.2. Carr compared minor as to the roles of the was being participant. for a minor reduction drugs conspirators other involved who sold 2, 3, requested a or 4 level reduction Cardona trafficking profits and shared in either the being participant a minimal or minor for laundering. court’s Since the district case, conspiracy. In each the district role as a courier determination that Carr’s rejected requested court base level re- comparison to the other was not minor duction. attempted conspirators in the mon- involved ey laundering activity primarily factual in employ

We a mixed standard re nature, considering we it for clear error. when whether a defendant review view - U.S. -, perfected.”), cert. Headley, 923 been In (1993). (3d Cir.1991), recog Fur we 126 L.Ed.2d 78 S.Ct. 1084-85 F.2d thermore, Headley acknowledged representing we defense counsel nized that participation drug courier for fact that a defendant’s “[t]he served as a defendant who [conspiracy] that of courier conspiracy on a few occasions was limited to large failing argue that the defen a minor or minimal is not alone indicative of ineffective Accordingly, for a base to consideration dant was entitled role.” 923 F.2d partici adjustment being a minor conclude that the district level this record we for a consider remanding the case pant. not a court’s determination that Carr was issue, guidance to gave some clearly we participant ation of erroneous. minor a courier court as to whether the district submits that his sentence Carr also participant: a minor should be considered pursuant to 18 must be vacated U.S.C. courier culpability of a defendant [T]he 3742(f)(1) misap § because the district court necessarily on factors as depend such must by relying on a broader plied the Guidelines relationship of the defendant’s the nature scope of conduct than that contained relevant importance of the participants, the to other Investigation Report in his Presentence to the success of the defendant’s actions (“PSR”).8 argues that the district court Carr venture, and the defendant’s awareness partici misapplied the definition of “minor scope criminal enter- nature and of the limiting pant” by not his relevant conduct prise. attempted money laundering act that Garcia, (quoting States v. Id. at 1084 United essence, place July took on 1990. In on (2d Cir.1990)). 153, 155 We noted 920 F.2d objects following appeal to the state Carr as to whether that the ultimate conclusion made the district court at the sen ment mak- participant is a minor involves courier tencing hearing: id., findings, which we ing various factual case, Mr. Carr’s the Court thinks that [I]n appeal. only error on should review for clear form, absolutely way, shape in he is no or specifi- Although court did not the district participant. minimal or a minor He was a Headley, cally out in followthe course set significant This is a man who participant. amply supports the district court’s record testimony [sic] show made numerous partici- that Carr was not a minor conclusion days trips in to Colombia of one or two stopped in cash pant. Carr was Miami with money laundering duration. This man was $186,000 attempted bills. That $100 regular on a routine and basis with and for transportation provided to Colombia the ba- kingpin money-laundering of his [sic] 21. for his conviction on Count Evidence sis operation. travelling was with Javier shows Carr (Carr) Carr, According App. at 223. Gonzalez, kingpin conspiracy, of the reflects the district court’s reliance statement associated, closely were Carr and Gonzalez respect on all of his conduct with and that Carr knew the funds just conspiracy, rather than his limited rele- light activity. criminal proceeds of some respect attempted his vant conduct with money particular launder- of the fact that the conviction, denying money laundering if might place have taken transaction not adjustment. mitigating role transporting the physically was not Carr Carr, however, given an imme carry-on bag, was person and in his cash on his object opportunity certainly See diate but did was vital to its success. not Fuller, district court’s statement. Nor has counsel United States Cir.1992) (“If (5th brought for Carr otherwise to our attention defendant] had made [the objection an made in that the record contains delivery of the the crime would have 3D1.2(a) (b), Investigation Report Carr's relevant conduct was calcu- 8. Carr's Presentence gave conviction that which rise his on his base offense level from U.S.S.G. lates laundering namely (a)(2), operative guideline persons Count 2S 1.1 count— leading laundering money. to the confiscation of Since all of the events convicted of Airport togeth- on grouped $100 bills from Carr at the Miami of conviction were Carr’s counts July pursuant sentencing purposes to U.S.S.G. er for impermissibly that it I don’t think that his role in district court was the overall charged than that relying substantially relevant conduct other conduct here on was Thus, significantly failed to or even contained the PSR. less less than that of appeal and we review most of preserve the issue for his cohorts.... “plain error” not

only to ensure that was I think the evidence shows that' even Pollen, 978 committed. United States v. being generous defendant, most [sic] (3d Cir.1992) (citing Fed. F.2d average he was an run mill partici- - U.S. -, 52(b)), cert. R.Crim.P. pant conspiracy in this I think that (1993). 2332, 124 L.Ed.2d 244 accordingly he not entitled to a or a two point adjustment three or a four being hearing Upon review of the entire sentence participant. a minor or minimal record, we do not believe the district “seriously court committed an error af- (Cardona) App. disagree 158-59. We fect[ing] rights compromis[ing] substantial reading Cardona’s of this statement as indi- proceedings,” the fairness of the cating erroneously that the district court re- Martinez-Zayas, conspiratorial lied on conduct that (3d Cir.1988). Carr’s relevant conduct for part of Cardona’s relevant conduct as con- sentencing purposes of that which Rather, tained his PSR. we believe this 11,1990 July during attempt- his occurred statement reflects the proper district court’s $186,000 in transportation ed cash to Co- application mitigating adjustment of the Nevertheless, already lombia. we have con- guideline by comparing culpability Cardona’s ample tending that to cluded there are facts in his relevant conduct with conspira- other participant that not a minor show Carr was particular tors in those involved transactions. respect particular to this transaction. Furthermore, reviewing in all of the evi- fact, very transportation In success of the relating conduct, dence to relevant Cardona’s $186,000in bills to Colombia was $100 agree we with the district court’s conclusion upon dependent Carr’s role as the courier. average participant. that he was at least an Therefore, may although the district court The district court did not commit clear error in denying have committed error Carr’s re- concluding in that Cardona was not entitled quest mitigating adjustment for a based on any mitigating adjustment to for his role in in relevant conduct that was not contained conspiracy. PSR, say we cannot that the district denying court’s conclusion Carr a two base being participant reduction for a minor level B. plain

was error. argues Cardona also that his sen tence should be vacated because the district Cardona maintains that he was enti improperly court enhanced his base offense mitigat tled to as much as a four base level by pursuant adjustment level three levels to U.S.S.G. ing being participant a minor 2Sl.l(b)(l). guideline provides § Carr, This for a conspiracy. in the overall Like he for defendants three base level enhancement that court in tak contends the district erred money laundering who “knew or convicted scope into account a of relevant broader proceeds of believed that the funds were the conduct than that contained in the PSR. activity involving an the ... distri unlawful respect request for a miti With to Cardona’s controlled bution of narcotics other sub gating adjustment, the district court stated: considering stances.” Id. After Cardona’s Well, the rather familiar with Court’s enhancement, objection to this sentence testimony that was and the evidence district court stated: since there was a full educed this ease is, enough question trial a month. is there from blown lasted almost No, find, by I one could that he don’t think that one could find knew currency dealing preponderance of the evidence that he was drug trafficking activity. gentleman anything proceeds than an av- It’s was other erage participant. view that there is. the Court’s $1,000,000. Therefore, range fact, going g[o] by bit bit I’m not actually by district court evidence], imposed fine by [through the piece piece called for was the minimum amount totality is such as of the evidence but assessing Sentencing Guidelines. When the defendant suggest that not did fine, required court is to consider the district he deal- proceeds that know that the statute, specified by which are several factors drug trafficking ac- ing were derived 3553(a) 3572(a), §§ as well see 18 U.S.C. drug traf- tivity. They were derived from Sentencing as factors contained Guide- engaged ficking activity in which he was 5E1.2(d)(l)- themselves, § lines see U.S.S.G. cor- probation I officer and think (7). Nevertheless, court “shall the district points. I rectly find awarded the three cases, except in all where the impose a fine preponderance of the evidence at least a is unable to defendant establishes that he characteristic proper is a offense that this pay pay likely to become able to and is proper and a enhancement. 5E1.2(a). any fine.” U.S.S.G. (Cardona) at takes issue App. 156. Cardona recommending a receiving the PSR After of the district court that with the conclusion $10,000, sentencing filed a mem- fine of Carr totality establishes of the evidence requesting that the fine be orandum waived money he was involved knew the Cardona 5E1.2(f). entirely pursuant to U.S.S.G. drug dealing. proceeds of with constituted argument before the dis- Central' Carr’s primarily this conclusion is Since our view court, appeal, trict and on is that the PSR determination, it a factual we review negative Cusumano, reflects that had a net worth clear error. See United $20,000, monthly negative net (3d Cir.1991), of about and a - just unemployed -, cash flow because he sentencing. sentencing hear- (1992). prior to At the L.Ed.2d acknowledged ing, court the district that in 1990 Cardona The evidence shows presently pay did not have the means significantly to Colombia wired more $10,000 Upon minimum fine. review tax return. reported than on his federal he however, resources, potential future Carr’s entering G. Travel several He was seen Jav imposed the fine the district court because during period in which cash times the time judge could not conclude that “there’s no exchanges taking place Javier were between prospect in the foreseeable future reasonable witness, cooperating while Gonzalez and pay could not at least the abso- [Carr] legitimate reveal no reasons business records So, going impose I lute minimum fíne. am to Furthermore, large the visits. sums for required by the minimum fine that I’m law to in were found Car- small denomination bills (Carr) impose.” App. residence, drug packaging dona’s as well as materials, The on the date of his arrest. a Motion for Correction of Sen- Carr filed 35(c) pursuant cash was further revealed to Fed.R.Crim.P. with confiscated tence dogs illegal argued traces of nar- in he trained to contain the district court which evidence, Considering govern- all of this we because the cotics. fine should be waived objected conclude that the district court did not com- to the financial infor- ment had not finding report mit clear error in that Cardona knew contained in the PSR which mation illegal laundering proceeds negative came fi’om net In addi- reflected Carr’s worth. tion, proper- argued court transactions. The district Carr that a full consideration ly offense level in the enhanced Cardona’s base all the relevant factors contained stat- pursuant yields to U.S.S.G. conclusion that three levels ute and Guidelines 281.1(b)(1). $10,000 beyond § his future fine was Finally, the install-

means. Carr contended C. period payment for of the fine was ment illegal interest should be waived challenges portion Carr also inability pay. present to because Carr’s imposed his sentence where the district court rejected $10,000 most of these convicted of three The district court fine. Carr was April arguments in in an order dated together called for a fine counts impose findings respect to court must fine unless make to defendant’s because “the - likely fine), ability that he is not to pay establishes to defendant fine,” pay any -, which Carr (1991); able to become 116 L.Ed.2d S.Ct. (Crim. District Court Order No. Cammisano, failed to do. United States v. 92-00102-08) 1993) (E.D.Pa. (citing Apr. (8th Cir.1990) (same). Rather, we exer 5E1.2(a) (f)), reprinted in U.S.S.G. plenary alleged legal cise review over the (Carr) Appellant at Addendum C. Brief for errors, but review conclusions which are reviewed several rele- The district court also largely factual nature for clear error. including responsibility factors Carr’s vant The district court’s ultimate conclusion of background, dependents, for educational em- whether to waive or reduce the fine is re ployment history, and net worth in conclud- viewed for an abuse of discretion be likely would have the means to that Carr cause the relevant Guideline indicates that $10,000 in the fu- pay the minimum fine of the district court should retain discretion. graduat- ture. The record reflects that Carr 5E1.2(f). See U.S.S.G. school, college high attended ed from years, employed and had ad- three been sentencing record industry positions ministrative the airline present plainly case reveals that the district years prior to the events which several statutory guide court considered those gave rise to his criminal conviction. line factors that it found relevant in deter review, court noted that Carr’s the district mining possessed ability pay that Carr $10,000 approximately when net worth was $10,000 minimum fine in the Im future. undocumented, $30,000 loan an unsecured posing solely ability a fine based on future payable to his mother was subtracted pay permissible. See United did, liabilities. The district court his total (3d Cir.1992) (sen Joshua, nevertheless, waive interest on the fine. imposing ability tence a fine based on future pay upheld appeal where district court argues portion of that this his finding judg made a that defendant was a sentence must be vacated because the dis creditor). Furthermore, ment we hold that by recalculating trict court committed error permissible sentencing it is for a court sua by adding the uncorrob his net worth back sponte to recalculate a defendant’s net worth payable loan to his mother. orated considering whether defendant has the Furthermore, contends that the district actually ability pay fine where the PSR incorrectly placed the on the court burden imposed. a fine be inability pay recommends that defendant to establish his government fine nor the where neither Carr case, although present In the the objected portion to that the PSR reported negative that Carr had a net PSR negative revealed that Carr had a net worth worth, it still recommended that the district $20,000. note, initially, We that this is not Thus, $10,000 impose court a fine. Carr was a situation where we review the record de sentencing hearing on notice before the that novo to ascertain whether the district court government recommending the any findings made to show that it considered $10,000 despite impose court a fine of the ability pay whether the defendant had the to position fact that current financial indi his imposed. United the fine Cf. (3d Cir.) (vacat Demes, lumpsum make a 941 F.2d 223-24 cated he would be unable to payment the As the district court ing sentence because the district court failed fine.9 Fair, issue, only presenting that the district Carr to several In the court held In cites adopts cases which he contends hold that a defendant findings court must make when the court may inability pay by PSR, to a fine reference establish the facts contained in the but then decides alone, any independent re- to the PSR without depart to from its recommended fine or sen- quirement present See to additional evidence. tence. 979 at 1041. The district court in F.2d Fair, (5th F.2d Rivera, 1041 United States v. present actually imposed the case a fine which Cir.1992); United States v. Rivera, in the PSR. In the was recommended Labat, (2d Cir.1992); $17,500 imposing a sentence fine court vacated (10th Cir.1990). F.2d 604-07 None of these given the and remanded for reconsideration proposition and all cases stand for such a broad district court seemed to believe the PSR recom- distinguishable. are stated, part negative in of his net only entitled future because correctly is defendant if of the fine he or waiver worth. to a reduction currently pay to and proves that he is unable sentencing record re Our review the pay in the future. likely to be able to is not clearly made no veals that the district court 5E1.2(f). then, § Even the Guide- U.S.S.G. concluding findings factual in erroneous with the district court leave discretion lines ability pay had some future to the be reduced the fine should to decide whether that the district court minimum fine. Given (“If defendant establish- or waived. Id. legal rele made no error and considered the likely ... not ... he is not able and es that capacity as to future to vant factors Carr’s ..., pay fine]

to able to [the become fine, on the rec pay the which are reflected may impose a fine or waive the court lesser ord, certainly its discretion it did not abuse added)). Therefore, (emphasis the dis- fine.” $10,000 failing altogether.10 to fine waive legal error in recalculat- trict court made no leaving him net or in ing Carr’s worth future proving he had no abili-

the burden ty minimum fine. pay to V. naturally Although relied on the fact convictions and sentences of both Carr object government not to this did will be affirmed. Cardona PSR, thereby not portion of the did tending to establish or

present evidence neg loan and the undocumented corroborate BECKER, Judge, concurring in Circuit worth, he retained the overall ative net still part dissenting part. proving possess not burden of he did join majority’s opinion except I ability pay recommended fine to sniffing its discussion of the canine Joshua, 5E1.2(a); future. See U.S.S.G. portions III and the of Part and Part IV Preston, 856; United States v. F.2d sufficiency pertaining to the of the evidence (3d Cir.1990), 89-90 21. I supporting Carr’s conviction on Count 1002, 112 L.Ed.2d 498 U.S. explain why I (1991). separately write not court concluded The district majority has construed 18 believe not that burden even that Carr did meet 1956(a)(2)(B)(i) broadly, too but considering U.S.C.A. Carr’s motion for correction after general express my views on the argued that he did also of sentence which he inadmissibility sniffing pay fine in of canine evidence. not have the means to Thus, fine, persuasive actually provide none of these cases mended a when the PSR concluded authority for the rule Carr advances: when con- pay a fine. 971 that the defendant was unable sidering guideline Here, factors as to whether a unambiguously F.2d at 895. rec- PSR ability pay a fine which is defendant has imposed which was ommended fine PSR, may in the a district court recommended making findings the district court after con- individually scrutinize evidence con- factual Labat, ability pay. cerning Carr's future objected to tained in the PSR which has not been containing vacated a a fine of the court sentence either the or the defendant. PSR, $110,000 where the as introduced over extinguish Adoption one of of such a rule would objection, the defendant without indicated that remaining vestiges the few of discretion left with indigent and would be should be considered judges sentencing in criminal defendants district pay to a fine from the lower end of the able pursuant to the Guidelines. range. guideline at 604-06. More fundamentally, the sentence the court vacated very ques- 10. We would be faced with a different imposed because the fine was as an “additional if the district court had recalculated the tion compensating govern- purposes the fine” for of presented net worth as in the PSR defendant’s incarceration, the for the costs of ment imposed was recom- and a fine when none imposed only appropriately held can be court government in the PSR and when the mended ability pay case, the defendant has the to when objection. In such a a defendant raised no contrast, punitive By at 606-07. Carr's might legitimate fine. Id. claim that the PSR have facts, inability pay which the district court PSR contains a fine. How- itself establishes an ever, to tending adopted, he has some future to show that we are faced with that scenario in this fine, ability pay puni- express opinion to how that to the which is and we no as means case be decided. issue should tive in nature. culpability that I. U.S.C.A. is sufficient for the commis- OF CONSTRUCTION 1956(A)(2)(B)© offense, § sion of an distinguishing without thereof, among the material elements such Meaning the Statute A. The Plain of provision apply shall to all the material ele- 1956(a)(2)(B)(i)makes it a crime to Section offenses, ments of contrary pur- the unless a of transport out the United States pose plainly appears.” Model Penal Code represent ... ... “knowing that the funds 2.02(4) (1965). § .“Knowing” applies to all proceeds the of some activ- form of unlawful (i) material elements of subsection under that ity knounng transportation that such ... rule, and because it identifies the essence of (i) disguise ... designed is to conceal or the “proceeds specified the offense the of unlaw- nature, location, source, the the owner- (as 1956(c)(7)) activity” by § ful defined ele- proceeds speci- ship, or the control of the of ment is a material term.1 activity_” 18 U.S.C.A. fied unlawful 1956(a)(2)(B)® (emphasis supplied). § Un- phrase This construction does not read the clearly fortunately, language does not activity” “some form of unlawful in convey requirement the mens rea of whether 1956(a)(2)(B) § out of the statute: that “knowing” applies solely to the fact that the language applies broader “designed” to “conceal or transportation was 1956(c)(2)(B)(ii), § which does not contain the disguise” really pro- of is attributes what language “proceeds' specified of unlawful ac- specified activity ceeds of unlawful —render- tivity.”2 Congress Had meant to have the “proceeds specified unlawful activi- 1956(a)(2)(B)® § requirement scienter ap- ty” language passing a mere referent ply only proceeds of “some form of unlaw- requirement which no mens rea attaches —or activity” “proceeds specified ful and not to requirement whether the scienter extends (and should) activity,” it unlawful could have also to fact that the funds language used “some form of unlawful specified activity.” proceeds “the unlawful 1956(a)(2)(B)® activity” §in instead of the Although drafting of the statute is language “proceeds specified unlawful ac- question opaque, and the of the mens rea tivity,” conveyed meaning. or otherwise one, requirement respectfully I a close dis- construction, agree majority’s with the see 1956(a)(1), example, § Congress For Maj. Op. at 1206. partially way drafted the statute the (cid:127) 1956(a)(2) majority interprets § to read. After careful meditation on the structure “Whoever, begins, knowing That section 1956(a)(2)(B)®, § wording I am led to property involved a financial transac- conclude the end the mens rea of represents proceeds tion some “knowing” applies also to the fact that the form of activity, attempts conducts or “specified represent proceeds funds unlawful conduct such a financial transaction which in activity” majority’s unlawful and that proceeds specified involves the unlaw- reading cabining requirement the mens rea fact 1956(a)(1) activity....” 18 U.S.C.A. disguise” to the “conceal or element is less ful major- (Supp.1994) (emphasis supplied). The guidance I persuasive. find the Model 1956(a)(2)(B)® ity similarly reads as if it approach culpa- Penal toward Code’s learned bility. “knowing transportation read that such ... The Model Penal Code’s rule of statu- tory provides designed disguise is ... to conceal or construction “[w]hen nature, location, source, defining prescribes law an offense the kind of the owner- government suggest transport 1. I do not mean to that the 2. That subsection makes it a crime to obliged prove knowledge "(B) of unlawfulness or funds in to or out of the United States prove must that the defen- knowing that the ... funds involved in the trans- "specified dant knew that the statute defines as portation represent proceeds of some ... the unlawful activities” what the defendant knew the proceeds knowing activity form of unlawful and that such derived from. I mean that the transportation designed part is in whole or in ... prove government must that the defendant knew (ii) reporting requirement to avoid transaction (but law) represent- that the in fact not in under State or Federal law”. See 18 U.S.C.A. many proceeds great ed the of one of the forms 1956(a)(2)(B)(ii) (Supp.1994). § "specified of unlawful activities” enumerated in (cid:127) 1956(c)(7). 1214 language to ‘the and seope even after resort represents control of what

ship, or the fact structure, motivating activity,” legislative history, and specified unlawful proceeds of leaves out the statute.” Moskal v. United policies’ as written of the the statute whereas 103, 108, 461, 465, States, 111 S.Ct. 498 U.S. words. emphasized (1990) (quoting 449 112 L.Ed.2d Bifulco sup majority upon relies the The case States, 381, 387, 447 100 S.Ct. U.S. United construction, States v. Mas United port its 2252, (1980)); 2247, 65 L.Ed.2d 205 see Cran (3d Cir.1989), sac, 174, did 177-78 867 F.2d 158, don, at 110 S.Ct. 1001-02. 494 U.S. majority cites it for. issue the not decide the question that the history, was no legislative In that case there no and there is Since proceeds structure, derived from the language, defendant knew nor the neither the since only question trafficking; the we con provide animating purposes of the statute de I.A, the transaction was direction, fronted was whether supra see Part the statute sure fact. disguise or that signed to conceal ambiguous. Therefore the rule of is at best heightened that scienter lenity mandates Lenity Rule Application B. of of require- rather than no scienter requirement, (as it), wrong majority applies have ultimately I am about the ment would if Even offense. concerning the mens rea to that element of the question difficult speci- “proceeds of for the element standard II. The Relevanoe 1956(a)(2)(B)(i), Ev- activity” §in it of Canine-Alert

fied unlawful very least the stat- to me that at the seems IDENCE ambiguous. requirement ute’s mens rea introduction of Although I believe lenity come into rule of should Therefore the error, dog-sniffing it does I require the same outcome reach play and error, plain inasmuch not rise to the level of above. I there was sufficient evidence as also believe beyond prove rule a reasonable doubt Supreme Court has held that the represented proceeds of employed cash involved lenity “resolv[e] be of should drug trafficking even absent the canine-sniff- any ambiguity [a criminal] the ambit evidence, ing and hence that the evidence coverage.” Crandon v. United statute’s Moreover, States, 152, 158, 110 997, 1001, question prejudicial.4 was not S.Ct. 494 U.S. (1990) currency in fact (emphasis supplied).3 whether the 132 108 L.Ed.2d proceeds drug trafficking is not relevant purposes of the rule ambiguity An exists subjectively question of whether Carr a reasonable in “those situations which transporting currency he was de- a statute’s intended believed persists about doubt 47, (1985) (stating plain recurrently 84 1 error echoed the same L.Ed.2d 3. This Court has "particularly egregious Knight, applies errors” V.I. v. 989 F.2d view. See Government of fairness, 619, (3d Cir.1993) ("The lenity "seriously integrity or rale of re affect 633 concerning judicial proceedings,” any ambiguity public reputation mean quires viewing "by plain statute be resolved in favor of must be evaluated of a criminal error (internal (emphasis supplied)), against the criminal defendant.” such a claim the entire record” - -, 556, omitted)); 114 S.Ct. 126 quotations Government V.I. v. Par Tabaka, (1993); 1097, (3d Cir.1993) (‘“Plain rilla, United States v. 982 L.Ed.2d 457 7 F.3d 1100 (same); 100, (3d Cir.1992) United case-by-cáse 103 analysis requires F.2d determina error’ Cir.1992) Knox, (3d F.2d 819 examining States v. as 'the tion that includes factors such -, (same), grounds, error, other - U.S. vacated on significance obviousness of (1993); violated, United S.Ct. 126 L.Ed.2d 325 protected that was interest the rule Cir.1992) (3d Mobley, States v. particular the seriousness of the error in (same); J. 3 Norman case, Statutes Statu reputation judicial proceedings if Singer, cf. 59.04, (5th tory at 118 ed. 1992 Construction eye with an the error stands uncorrected —all ” rev.) ("The a criminal statute must words of injustice.’ (quoting avoiding manifest toward meaning doubt as to its leave no reasonable Thame, (3d States v. United legislature, and where such the intention of the Smith, 1988))); Government V.I. v. Cir. liberty of the citizen is favored." doubt exists the (footnotes (“Plain (3d Cir.1991) are errors F.2d omitted)). undermine the fundamental fairness those that miscarriage jus to a the trial and contribute tice,” "sparingly.” 52(b); e.g., and courts are to find them See Fed.R.Crim.P. omitted)). 1, 15-16, (internal quotation Young, 1046- 470 U.S.

1215 ($639,558) Fifty-Eight dred & Dollars drug trafficking in order to laun- rived from Currency, United States 712, Nevertheless, obliged I 714 n. it. feel to com- der (D.C.Cir.1992), elsewhere, 2 and which collec- light of ment on the nature of the evidence tively persuade me that portion a substantial highly prejudicial what I believe to be its currency of United States now in circulation proceedings.5 potential future is tainted with sufficient of traces controlled My concern from numerous studies stems substances to cause a trained canine to alert United States cited in and other evidence presence. Although mounting to their Fifty-Three Eighty-Two Thousand Dollars part evidence and studies were not made of Currency, 245, in United States 250 directly record at trial and thus are not (6th Cir.1993), United States v. Six review, n. 5 I before us on set them forth in the Thirty-Nine Hundred Thousand Five Hun- margin.6 (There prejudicial percent. study indicating

5. The nature of canine-alert evidence at is least one proceedings up percent can manifest itself in various in ad- to 97 of all bills in circulation example, cocaine, at country dition trials on merits—for by in the are contaminated hearings investigating suppression the existence average micrograms with an of 7.3 of cocaine probable vel of cause to search'based on a non per Analysis, bill. Crime and Chemical 243 currency grand jury canine’s reaction to or in 1554, (1989).) 1555 Science proceedings. ... It has been estimated that one out of every circulating three bills has been involved 6. The Sixth Circuit wrote: in a cocaine transaction. R. Siegel, Intoxi- evidentiary value of a narcotics detection [TJhe (1989). cation 293 Cocaine attaches—in a va- dog’s recently ques has been called into alert bills, riety ways of which in turn con- —to court, "[tjhere tion. As noted one district is they pass through reg- taminate others as isters, cash some indication that residue from narcotics drawers, counting cash machines at currency contaminates as much as 96% establishments, id.; banks and commercial currently in circulation.” United States v. Analysis, supra, Crime and Chemical at 1555. $80,760.00 Currency, in United States 781 that, result, Dr. Woodford testified as a bills (N.D.Tex.1991) F.Supp. 475 & n. 32 [ may gram contain as little as a millionth of a (5th Cir.1992)]. aff'd, 978 F.2d 709 See also cocaine, many but that is times more cocaine Drug-Sniffing Dogs Challenged: Use ACLU dog than is needed for a to alert.... See Complaint by Backs Men Whose Pocket Cash Taslitz, generally Does the Cold Nose Know? Seized, 6, 1990, ("I May Was at DI Wash. Post, Myth Dog Lineup, Scent Unscientific rely would not want to walk into court and (1990). 42 L.J. 29 & n. 71 Hastings exclusively dog on a sniff for a forfeiture of (some omitted). 955 F.2d at n. 2 714 citations money,” Saphos, said Charles S. Chief of have, Many apparently other sources without ex Department's U.S. Justice gerous Drugs Narcotic and Dan ception, reached same conclusion. See Unit guys Section. "There are a lot of Mendez, F.Supp. ed States v. 827 1283 out there that have shown that is a there trace (S.D.Tex.1993) ("Dogs alert to the odor from dope [of] on lot of out there. And for bags unsuspect trace amounts in alone, just that reason I’d want more than ing, persons drugs long gone.”); innocent from dog.”); Dirty Money, Oc Banker, Admin., Drug Jones v. United States (discussing study by tober Enforcement 10 Lee (M.D.Tenn.1993) F.Supp. 719-21 Hearn, Toxicologist Chief for Florida's Dade (recognizing growing that "a chorus of courts [is] County Medical Examiner's Office that 97% finding[ ] evidence of the narcotic-trained country positive bills from around the tested dog's currency extremely 'alert' to the is of little cocaine; noting play also that banks a role weight” probative concluding that “the con spreading the cocaine traces tellers when tinued reliance of courts and law enforcement money, rubbing count and recount one bill dog 'legitimate' separate officers on sniffs to cur another). Thus, against a court should "seri rency 'drug-connected' currency logically ously question[] dog's the value of a alert evidence_” indefensible”) (citing $80,- a 1987 memorandum persuasive without other scientist, evidence, 760.00, revealing (and DEA admitted into F.Supp. at cases cited randomly therein). that “one-third of the bills in a selected cocaine”); sample were contaminated with ... 985 F.2d at 250 n. 5. The District of Columbia surveyed United States v. in United States Curren Circuit similar evidence: (D.N.J.1989) cy, F.Supp. (stating implications [drugs In order to blunt the expert being witness money, that the defendant’s concluded defendant] found on the Woodford, analyzing samples currency expert, random "[a]fter called an James Dr. who throughout percent varying testified that denominations from banks of all cash in the quantities United States contains sufficient the Northeast ... that all the bills contained Beard, residue"); Curriden, dog. Reject cocaine to alert a trained Officer cocaine Mark Courts handler, Evidence, dog (Aug. suggested Drug-Tainted the hearsay on the basis of 79 A.B.A.J. 22 lower, 1993) (quoting that the number was near 70 forensic chemist Dr. James Wood- 1216 them, or mustered contradict many cited above is wise—-which any studies

If of the relevancy dog to a of valid, any arguments pointing fact that a alerted then the evidence, in cur- despite shouldering bills United States large number of its canine-alert major in a metro- rency has circulated relevancy. which establishing its the burden (at the studies are di- politan center my opinion that It thus considered is rected) likely meaningless quite and un- is by governmental fact that numerous studies and fairly prejudicial, see Fed.R.Evid. agencies, studies which stand private and have been excluded. thereof should unrefuted, strongly suggest that a trained many Although having been directed of used cur- alert to all bundles canine will brief, by Carr’s I have cited the studies jury rency permit to draw a does not disputed the in its brief has not person prior inference that the reasonable any mentioned validity of the studies currency drug traf- possession of such was a pointed countervail- It has not above. Indeed, I am with one.7 or other- ficker or associated ing of record studies —whether (1991) dog's (holding probability that a stating 595 A.2d 106 "[t]he as that ford of Atlanta every single person establish that the in the United States is alert to seized funds did not that money likely carrying drug-tainted currency is almost certain" than not derived from was "more study by Drug reporting a 1987 a En- a violation of Controlled that or used to facilitate owner). Agency by scientist found that one-third Act" forcement Substances money Building in of all at the federal Reserve any support majority opines, what- without Dillin, cocaine); Chicago John was tainted with soever, by drug "positive sniff- that alerts trained Seizing Money, Reign Agents Would Law from money likely ing dogs indicate that of the much 17, 1993, (report- at 2 June Sci. Christian Monitor, Maj. Op. drug transactions.” was used percent Rep. Hyde stated that "97 of all that true, may although given the afore- 1206. It be currency at least a trace of narcot- now carries detail how traces of mentioned studies which Reeves, ics”); Dusty Money, Howard R. Orlando drugs may doubtful, bills it is be transferred between 1, 1992, ("According July at A14 Sentinel Trib., money likely was "much by May circulated the Hartz a 1992 newsletter drug But what the evi- used in transactions.” prepared by Group the International Inc. and obviously is dence fails to describe who Mich., Kalamazoo, Awareness Center of Health drug in those transactions and who involved money percent paper of all in the United 97 standing person about them. If the before knew cocaine."); Jeff Brazil contains traces of goods grocexy pays line for his or her me in Free, Drug Beriy, May Be But Is & Steve You sale, drug in a and I receive with cash earned Money?, Trib., June Your Sentinel Orlando clearly posses- change, that cash as then I am (reporting taken at A6 that all used bills transactions,” "money drug ... sion of used in communily -including prominent a leaders— thereby have not become a trafficker but I chief, senator, judge, police a state circuit matter). (or Drug- money launderer for mayor, college president, others—tested quickly money passed around as and as tainted cocaine, toxicologist Wayne positive for and that illegal effortlessly tainted with as Morris, crime-laboratory specialist for a former appar- drugs, given the vast amounts of cash Enforcement, Department has the Florida of Law drugs by ently black market in it is consumed of criminal cases that as testified in hundreds that, indicate, easily studies conceivable as the currency percent in some cities much as 90 of all used bills come tainted between 70%-97% cocaine); Virtually positive All U.S. Pa tests illegal drugs. with traces of Cocaine, Albany Money per with Is Contaminated 12, 1991, (discussing that the odds that out of the Aug. at A-8 It would seem Union, Times exchanged govern indicating for the by private in cash two institutions over studies bills, cocaine); assuming composed $100 currency it is tainted with ment's of U.S. 80% Cocaine, (i.e., assuming average Money Supply $10 bills about Dusted with an Nation's (i.e., 18,000 bills), (available being none was ever since 1989 Dec. Int’l, United Press (whether directly exposed drugs Library) (reporting printed) or that tests LEXIS' News sorting ToxicologyTesting indicat virtue of contact with tainted Service Inc. of Miami exceedingly randomly equipment) Even if I dis are low. ed and all 10 of 11 bills nationwide grossly Orange County, the statistics cited in Cal. tested count as excessive selected bills from studies, cocaine, that between positive which indicate 70%- and that Steven Fike of the currency with suffi Laboratory of U.S. is contaminated in San Francisco stated U.S. Customs 97% drugs for a trained canine to alert detectable cient traces of to, of the bills he tests contain 70% Daniels, residue); currency meets and assume that of cocaine In re 1% traces cf. test, (Ia. 1991) "dog's of a random (holding the odds that none out that a N.W.2d 18,000 currency con bills in U.S. controlled substance collection detection of the odor of a (less drugs are so small than currency] provide evi tains traces of illicit did not substantial [on by comparison, drug dealing”); there are about connecting money 1 in dence 1078— 15, 25, sun) equivalent to zero. Giffin, Pa.Super. atoms in the as to be Commonwealth v. evidence, in protect “public that the information now order to rep- inclined to the view strong presumption a judicial available establishes proceedings,” utation of admissibility of of against the evidence a Young, 1, 15-16, 470 U.S. currency, gov- that the canine’s alert to and 1038, 1046-47, (1985), 84 L.Ed.2d 1 I would presumption only if it ernment can rebut prejudicial exclude that and irrelevant evi- establishes, clearly convincingly out- first and dence from our consideration of this case.8 presence jury, the relevance side the However, I think that the other evidence non-prejudicial character of the and offered and the government the has nature Carr’s conviction evidence. Since failed renders showing its burden of. the relevance its the admission of that evidence harmless er- dog government's every handlers testified in uni- with affirmative evidence of relevance in they many could not tell how in a son at trial that Litig., case. See In re Asbestos tainted, bag dogs of bills were would alert if (3d Cir.1987) (Becker, J., ("As concurring) 1247 tainted, a bills was and one out of thousand recognized long ago, Justice Holmes 'the court way knowing partic- a that there was no when may merely ascertain as it sees fit fact that is 95-97; ular became tainted. Eichmann at bill ground laying a for down a rule of law.' To 118-19, 121; Kinsky at 97-98. Hamlers recognition forbid such would force courts to background, grossly prejudicial Against the this (cita reality." fashion laws without to reference readily ap- potential of canine-alert evidence is omitted)), 485 tion 108 parent. government I also note that the witness- (1988); S.Ct. 99 L.Ed.2d 901 Bulova dog that a could alert to one es' concession Co., F.Supp. Watch Co. v. K. Hattori & of one thousand untainted tainted bill in bundle (E.D.N.Y.1981)(Weinstein, C.J.) ("A court’s majority's specula- completely bills discredits the power accepted to resort to less well known and positive tion that the canines' alerts indicated gaps knowledge sources of data to fill in the of its money likely drug that "much of the was used in legislative general hypothesis and evidential Rather, appear transactions.” it would from the purposes accepted must be because it is essential government's just own witnesses that even if judicial process.”); to the Fed.R.Evid. 201—advi the thousands of bills sniffed were "used few of sory generally committee note. See Michael J. drug dogs would have transactions” that Saks, Way Judicial Attention to the the World alerted to the whole bundle. Works, (1990); 1017-18 Rev. gov- IowaL. The facts would have been different if the Keeton, Legislative E. Robert Facts and Similar randomly ernment had selected out several hun- Facts, Things: Deciding Disputed Premise subjected dred of the bills and had each one 1, 8-10, (1988); 14-28 Ann Woll- individually to a canine. This could establish Minn.L.Rev. handler, Rethinking Reception Leg the Judicial degree probabilistic certainty within a what Facts, Ill, (1988); percentage islative 112-14 of the bills in the whole bundle con- Vand.L.Rev. Davis, drugs. Approach tained traces of If as a statistical matter Kenneth C. An to Problems of Process, percentage departed significantly that percentage from the Evidence in the Administrative 55 Harv. general (1942). of used bills in circulation to 402-10 L.Rev. respond, might which the canines the evidence Although I am driven to conclude that there is relevancy proper bear some and with instruc- evidence, assign any weight no to to that reason might prejudicial. Alternatively, tions not be majority apparently labors under the false government could have washed the bills and assumption, support for which there is also no exact obtained measurements of the amount of record, only currency which has been contained, drug compared traces the bills by immediately preceding possessor used in a statistically quantity this to that found to taint drug likely transaction is to contain traces of currency general circulation. But as the test words, conducted, drugs. government’s majority proof fatally In other is sub silen- is prejudicially engaged legislative factfinding, flawed. in similar al though nothing support it has its facts other studies, acknowledges majority 8. The but de- assumptions. than unfounded and baseless In they clines to consider them as evidence because particular, majority impliedly assumes satisfy do not the standard set Federal Rule of only vety portion currency small in circula judicial adjudicative Evidence 201 for notice of drugs tion is even if 1 in tainted with —since Maj. Op. at facts. See 1202-1203 n. 3. I see the 10,000 general bills in circulation contains perspective: studies from a different I am in- enough drug for a trained canine to alert traces they adequate clined the view that are to, probability that in a random collection of legislative factfinding, governed by which is not 18,000 bills there would be at least one such bill is, Rule 201. That I do not see them as evidence that, majority approximately Beyond is 84%. of whether the canine alert evidence was rele- only drug also assumes that traffickers and their case, vant in this but as evidence of whether co-conspirators possession are in of such tainted currency gener- evidence of a canine's alert to is tell, money. assumption is ally As far as I can probative. purpose, admissible or For this belief, unsupported by rhyme sufficiently convincing reading based on a or rea the studies make son, require purity money supply. for me in the chemical to come forth except pertaining to the facts the ones particular, the canine- all in this case. ror alerts), briefly repeat I which will canine appears have been rele- sniffing evidence here. of whether the curren- only to the issue vant government’s exchanged for the cy Gonzalez in the record of Carr’s There evidence pro- Cayman trips in fact repeated fresh bills other short $100 Colombia, trips he took in trafficking.9 I believe Islands ceeds government’s proximity to the ex- close government, proffered other change for cash in smaller de- of bills $100 money originated including fact that the the making stop a at after nominations Gonzalez, drug was convicted of who from agency, passport of the inci- the travel the trafficking, to establish sufficed occurring May 1990. From this dent on represented in fact the large of cash amount evidence, jury amalgamation the could le- of sum, trafficking.10 In al- drug proceeds of gitimately have inferred that on several other think; canine alert though I admission of the carried cash from the United occasions Carr plain in this case was not error evidence country, including foreign to a Colom- Rule of Criminal Procedure under Federal also established that Carr bia. The evidence 52(b), purposes appellants’ think for of I. transporting large amount knowingly a was sufficiency challenge we of the evidence ($186,000),that lied to the cus- of cash weight only give the evidence the due should of agent about the amount and source toms absolutely none. it— transporting, and that he the cash he was government phoned after the Mrs. Gonzalez III. the GaRR’s UndeR PROPER Guilt money report loss. confiscated the the Reading op 1956(a)(2)(B)(i) conclude, jury it allowed the as These facts 1956(a)(2)(B)(i), my reading I did, of illegally, Under that Carr violation in. laws, knowingly drawing currency reporting after all reasonable trans- think that even ported country. out of the cash government, the inferences favor of the properly jury have found Carr could I think all these facts in combina- But beyond on guilty a reasonable doubt the establishing shy fall of that Carr was tion 21 of the indict- charges contained Count launderer, knowingly money as there is no my I base conclusion on the relevant ment. indicating the cash evidence that Carr knew majority’s drug set forth in the traffick- represented proceeds facts that are of (that 1198-1200, is, ing.11 Although obtained the cash from opinion pages 1204-07 circumstantially majority, providing any support that a was stolen without the fact radio 9. The prove or reasoning, that the defendant knew he she explanation seems to for or of its goods. purchasing stolen money that the mere fact that the conclude proceeds drug represented of traffick fact draws, ing quite it I believe erro conclusion majority agree was am- I with the that there —a canine-sniffing neously, from the evidence—is drug trafficking ple adduced with evidence of prove relevant evidence to that Carr knew that it respect Maj. Op. Cardona. See at 1201-03. Maj. Op. at 1205-1206. Even if I could did. sign majority's assumption about the on may majority posits jury that the have 11. The evidence, probativeness canine-sniffing of money laundering on the alter convicted Carr of logical between this circumstantial connection money ground native that Carr believed that knowledge escapes me. The evidence and Carr's money represented proceeds illegal laun majority suggesting cannot be that because the problem dering. Maj. Op. at See 1205. The money dogs drugs on the so Carr smelled charge theory government that the did not is too, present when could have as Carr was not indictment, any evidence it in the did not adduce exchanged his tainted cash with the Gonzalez it, argue jury, it to the and did not did not cash, government and the cash Carr informant’s appeal. raise it as a basis for affirmance Cf. drug actually it. carried had no traces on The (4th Campbell, United States money fact that some which Carr never had Cir.1992) ("All the Government's evidence was drug trafficking, a contact with was once used in designed defendant] knew that [the to show that (assuming fact which a canine could detect drug Lawing is no indica was a dealer. There the evidence of a canine alert is jury for the moment that Law- could have believed tion that point), bearing probative no on what on that has form of criminal activi was involved in some - (different) origin dealing.”), ty CaiT believed about the other than -, caught transporting. L.Ed.2d 716 which he later was U.S. (1993). fact, specifically government reasoning using majority's The is tantamount convicted) drug (subsequently trafficker judge Gon- give district jury did zalez, there is no anything Carr was charge evidence on willful blindness. See United acquaintance a business but Gonzalez’s12 Caminos, (3d or he knew of Gonzalez’sillicit activities. Cir.1985) (holding that willful blindness oc- Specifically, no introduced curs when “the defendant himself was sub- that Carr was aware jectively high aware of the probability of the proceeds of drug trafficking, fact question”). Caminos, But in which to, opposed example, money as illegally we concluded that willingness of two skimmed Gonzalez’s two legitimate pay individuals to over to have the businesses, money that Gonzalez was at- defendant deliver a Brazilian $60 wood carv- tempting to smuggle to Colombia on behalf ing was sufficient to finding sustain his Colombian avoiding friends who were defendant’s willful to the fact blindness United States or Colombian taxes or on be- there something illicit hidden in illegal immigrants half of sending their carving, distinguishable. There charge wages to their families in Colombia. None on quite broad, willful blindness was applying probative the circumstantial evidence the ma- to “willful blindness to the existence of facts jority frequent trips, cites —the passport the which indicated that high probabili- there is a incident, phone the or conversations —alone ty that illegal some forbidden or substance “logical combination has the and convinc- may (em- therein,” be contained id. at 366 connection,” Casper, 956 phasis supplied), whereas here I believe the (3d Cir.1992), F.2d drug to traffick- government prove had to that knew the ing needed to drug trafficking elevate the money represented proceeds “specified of theory of what any Carr knew over other activity,” unlawful supra see Part I. Carr theory. easily could merely have believed that he was majority today The jury specu- allows a to transporting the cash in violation of the cur- late on the trip mere basis of a short rency reporting laws of laundering it, instead a large Colombia with amount of cash not (given whereas wording broad only that the money is a carrier launderer charge) willful blindness such no alternative drug trafficking proceeds, but that knows he explanation existed in Thus Caminos.13 it Especially case, however, he is. in a criminal has not beyond been established a reasonable it improper speculate about what the doubt that Carr subjectively aware of a requires defendant knew. The Constitution high probability that he was government prove each element of the transporting represented proceeds beyond doubt, offense reasonable mere- not drug trafficking. ly to suspicion. short, a reasonable In beyond did not reasons, evidence For foregoing establish reason- I respectfully able doubt that Carr knew repre- judgment funds dissent from the insofar af- as it proceeds drug trafficking. sented from firms Carr’s conviction on Count 21. al, charged law,” in the foreign Maj. Op. indictment pur- knew for proceeds the cash traf- poses 1956(a)(2)(B), govern- when the and ficking, an indictment was never amended press argument upon ment not did it. (if "surplusage” to rid it of that indeed that is was). majority what it The seems to cull its majority's suggestion 12. The about an "intimate theoiy appeal, from Carr's brief on which men- relationship,” Maj. Op. at 1205 & n. is not tions it observe had by the supported record. While there was evi- pursued not it. dence trips that Carr went on numerous business majority grounds Insofar as the fashions new Gonzalez, there was evidence that no appeal, liability departs criminal it they two were close friends or confided established and conventional norms notice fact, July each trip, other. on the process and apropos due criminal convictions. one about relating which there was See U.S. amend. VI. Issues of notice Const, precise arrangements, travel their the two did aside, process due jury I do not see how the airplane. not sit in the even same section of the "knowing” could have convicted Carr of money represented proceeds money laun- dering jury when the arguments was not I also that the instructed that note raised here state, laundering "felony ais under feder- were not discussed in Caminos. REHEARING FOR PETITION SUR 28, 1994

June SLOVITER, Judge; Chief Before: MANSMANN, STAPLETON,

BECKER, SCIRICA, HUTCHINSON,

GREENBERG, ROTH, ALITO, NYGAARD,

COWEN,

LEWIS, Judges. Circuit by appel- rehearing filed for petition judges who having been submitted

lant of this court in the decision

participated judges of the circuit available

to all the other service, judge and no regular active circuit having asked in the decision concurred

who majority the circuit rehearing, and a service regular active

judges of circuit rehearing by the court having voted rehearing is denied. banc, petition for America

UNITED STATES Jr., Appellant. RETOS,

George

No. 93-3341. Appeals, Court of

Third Circuit. 2,May

Argued 8, 1994.

Decided June

Case Details

Case Name: United States v. Robert Joseph Carr, Jr., in No. 93-1376. United States of America v. Walter Orlando Cardona-Usquiano, in No. 93-1383

Court Name: Court of Appeals for the Third Circuit

Date Published: Jun 28, 1994

Citation: 25 F.3d 1194

Docket Number: 93-1376, 93-1383

Court Abbreviation: 3rd Cir.