United States v. Caldwell (Gayle)

FILED
United States Court of Appeals
Tenth Circuit

March 30, 2009
PUBLISH Elisabeth A. Shumaker
Clerk of Court
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee,
v. No. 07-6254
GAYLE L. CALDWELL,

Defendant - Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
(D.C. NO. 5:06-CR-00264-HE-2)

Alleen Castellani VanBebber, McDowell, Rice, Smith & Buchanan, P.C., Kansas
City, Missouri, for Defendant - Appellant.

Susan Dickerson Cox, Assistant United States Attorney, (John C. Richter, United
States Attorney, with her on the brief), Oklahoma City, Oklahoma, for Plaintiff -
Appellee.

Before HARTZ, Circuit Judge, McWILLIAMS, Senior Circuit Judge, and
McCONNELL, Circuit Judge.

HARTZ, Circuit Judge.

Gayle Caldwell appeals her convictions on charges of wire fraud, see

18 U.S.C. § 1343, and money laundering, see id. § 1956(a)(1)(B)(i), arising from
her role in a fraudulent scheme that involved securing loans for homes at

artificially inflated prices. Mrs. Caldwell contends that (1) there was insufficient

evidence to convict her of either offense; (2) the district court erroneously

admitted evidence of mortgage loans not charged in the indictment; (3) her trial

was improperly joined with that of her husband and two other codefendants; and

(4) the district court improperly denied her motion to sever her trial from that of

her codefendants. We have jurisdiction under 28 U.S.C. § 1291. We hold that

there was insufficient evidence to sustain her money-laundering conviction but

reject her other contentions.

I. BACKGROUND

Mrs. Caldwell and six codefendants were charged in a 14-count indictment

in the United States District Court for the Western District of Oklahoma. The

charges arose out of fraudulently obtained mortgage loans for six homes in the

Oak Tree subdivision in Edmond, Oklahoma, between 2003 and 2005.

Mrs. Caldwell was charged with respect to one of the loans.

The fraudulent scheme enabled persons with weak credit to obtain loans

that paid the entire purchase price of the homes and gave them money back

besides. The mortgage lenders were defrauded in at least two respects. First, the

purchase agreement provided to the lender inflated the value of the home. Rather

than stating the seller’s asking price, it added an additional sum (the Excess

Amount) to that price and then, in an addendum not disclosed to the lender,

-2-
provided that the Excess Amount would not go to the seller but would be used to

pay a contractor for repairs or remodeling of the home. The named contractor,

however, was a sham, merely a bank account used to funnel money to the

purchaser and other participants in the scheme. Second, the lenders were told that

the purchasers had used their own funds to make the down payments on the

homes. But the purchaser in fact borrowed the down payment from participants

in the scheme and paid them back out of the Excess Amount. At trial,

representatives of the lenders said that each loan application would have been

rejected if the lender had known of either the addendum or the down-payment

loan.

Mrs. Caldwell and her husband, Charles E. Caldwell Jr., had full-time jobs

as pharmaceutical representatives. Although Mrs. Caldwell had obtained a real-

estate license some 15 years earlier, she had never worked in that field and got

involved in the charged scheme through her husband. In 2002 he began to

supplement his income as a part-time mortgage broker. At first he worked for

Skyline Mortgage (which had no involvement in the scheme). He then moved to

United Lending, where he participated in three fraudulent loan transactions for

which he was convicted. See United States v. Charles Caldwell, No. 07-6251

(10th Cir. Mar. 30, 2009). United Lending was owned by Linda Jew and managed

by her husband Anthony, a central figure in the fraudulent loans.

-3-
 About 15 months after Mr. Caldwell began working for United Lending,

Mrs. Caldwell purchased a company named Access Marketing Services, Inc. from

Mr. and Mrs. Jew for $500. The sole business of the company was lending money

to home purchasers to make their down payments.

Mrs. Caldwell’s convictions arose out of one transaction in January 2005, a

mortgage loan to Fenella Balang for the purchase of 1709 Irvine Drive. The

property had been listed at $575,000 before the seller reduced the asking price to

$550,000. Yet the purchase agreement stated a sale price of $800,000 and

included an addendum requiring the seller to make payments at closing totaling

$220,000. The seller was led to believe that the money was for repairs to the

home, although the addendum did not name a specific (sham) construction

company. As was the case with the other transactions charged in the scheme, the

addendum was not disclosed to the lender.

Balang borrowed her $120,000 down payment, yet indicated on her loan

application that no part of the down payment had been borrowed. The loan

officer listed on her application was Mr. Caldwell. The down-payment loan was

repaid out of the mortgage-loan proceeds, which also were used to pay Balang

$92,000.

There was evidence at trial that Mrs. Caldwell was involved in two aspects

of the transaction. First, she testified that when Mr. Jew had asked her whether

her company, Access Marketing, could lend the $120,000 for Balang’s down

-4-
payment, she referred him to ProSpect Marketing Services, which ultimately

supplied the down payment. Second, at closing, which Mr. Caldwell attended,

$10,000 of the loan proceeds went to Access Marketing. An Access Marketing

invoice for the $10,000 was provided to the title company that handled the

closing, although Mrs. Caldwell denied preparing the invoice and suggested that

Mr. or Mrs. Jew must have been responsible for it. According to the closing

statement, the $10,000 was for “marketing service to Access Marketing.” Add. to

Br. of Pl.-Aplee. (Gayle Caldwell) at 228. Mrs. Caldwell testified that the

$10,000 was a referral fee because she had told Mr. Jew about ProSpect

Marketing. Of the $10,000, Mrs. Caldwell disbursed $4,500 to her husband (the

transaction that formed the basis of her money-laundering charge) and $3,500 to

Mrs. Jew, apparently keeping the remaining $2,000 in Access Marketing’s

account. These payments were in addition to the mortgage brokerage fee to

United Lending (of which Mr. Caldwell received 65%), which was listed on the

closing statement.

Mrs. Caldwell’s account of her involvement in the Balang transaction was

contradicted by testimony from Mr. Jew. He denied that Mrs. Caldwell (or

anyone else) had referred him to ProSpect Marketing. He testified that he spoke

only with Mr. Caldwell, asking him if Access Marketing could lend $120,000 to

Balang for her down payment, but that Mr. Caldwell had replied that the amount

was too large. As for the $10,000 paid to Access Marketing at closing, he denied

-5-
that he or his wife prepared the invoice and said that the involvement of Access

Marketing was only to help the mortgage brokers (Mr. and Mrs. Jew and

Mr. Caldwell) take money out of the transaction. He explained that “out of

greed” they had decided to take another $10,000 from the loan proceeds and used

Access Marketing to facilitate that action. R., Trial Tr. Vol. 10 at 1586.

To help prove Mrs. Caldwell’s motive, intent, and knowledge of a

common scheme and design, the government presented evidence of two uncharged

mortgage-loan transactions in which she had been involved. The first transaction

was the loan for the Caldwells’ own home purchase, which occurred in August

2003, more than a year before the Balang loan. The Caldwells’ loan presented

many of the features of the fraudulent scheme. The seller listed the home at

$320,000, but the purchase agreement, which was signed by the Caldwells and

provided to the mortgage lender, set the price at $350,000. Also, the Caldwells

borrowed $17,914.14 for their $19,255.59 down payment. Yet the loan

application, which Mrs. Caldwell signed, represented that they had not borrowed

funds to make their down payment. Although the purchase agreement did not

include an addendum requiring the seller to pay for remodeling or repairs, the

transaction was nevertheless conducted with the understanding that the seller

would return $34,500 of the loan proceeds. From that $34,500 the Caldwells’

down-payment loan was repaid and they received more than $12,000 to boot.

-6-
 The other uncharged transaction was a mortgage loan to Decell Lewis in

November 2004, two months before the Balang transaction. Mr. Caldwell was the

loan officer. As with the charged transactions, the sale price had been inflated

(from the listed price of $225,000 to $360,000 on the purchase agreement), an

addendum to the purchase agreement required the seller to pay $97,000 at closing

for repairs, and the purchaser borrowed money for the down payment. Access

Marketing was the down-payment lender. This was Access Marketing’s second

loan since Mrs. Caldwell had acquired the company a month earlier. The down-

payment loan to Lewis was $17,267.87, but at closing Access Marketing

submitted to the title company handling the closing an invoice for a much larger

sum, $113,155.07, as a “Marketing Service Fee.” Add. to Br. of Pl.-Aplee.

(Gayle Caldwell) at 292. Mrs. Caldwell testified that Mr. or Mrs. Jew, not she,

prepared the invoice, an allegation denied by Mr. Jew. At closing Mr. Caldwell

endorsed the $113,155.07 check for deposit in Access Marketing’s account. Out

of that sum, Mrs. Caldwell wrote a $59,000 check to Lewis, and $10,000 to

Lewis’s real-estate agent. She also wrote a $16,000 check to her husband, and a

$5,000 check to herself, leaving $23,155.07 in the Access Marketing account.

II. DISCUSSION

We address the issues on appeal in the following order: (1) sufficiency of

the evidence of wire fraud; (2) admissibility of evidence of the uncharged

transactions; (3) Mrs. Caldwell’s joinder with codefendants in the indictment; (4)

-7-
failure to sever her trial from that of the codefendants; and (5) sufficiency of the

evidence of money laundering.

A. Sufficiency of the Evidence of Wire Fraud

We review the evidence de novo to determine whether a reasonable jury,

viewing the evidence in the light most favorable to the prosecution, could find

Mrs. Caldwell guilty beyond a reasonable doubt. See United States v. Parker, 553

F.3d 1309, 1316 (10th Cir. 2009). “To convict a defendant of wire fraud, the

government must prove three elements: (1) the defendant participated in a

scheme to defraud; (2) the defendant intended to defraud; and (3) a use of an

interstate wire in furtherance of the fraudulent scheme.” United States v. Turner,

551 F.3d 657, 664 (7th Cir. 2008). The wire communication alleged in the count

against Mrs. Caldwell was the wire transfer of $683,954.50 in loan money from

the mortgage lender, Long Beach Mortgage Company, to the title company

handling the closing.

Mrs. Caldwell does not challenge the existence of a fraudulent scheme, nor

does she dispute that the wire transfer furthered the scheme. Thus, we are

concerned only with (1) her participation (did she assist the scheme?), and (2) her

knowledge (if she did assist, did she know that what she was assisting was a

fraud?).

Ironically, the best evidence of Mrs. Caldwell’s assistance in the Balang

transaction was her own testimony. She told the jury that Access Marketing

-8-
earned the $10,000 “marketing service” fee by referring Mr. Jew to the eventual

down-payment lender. According to Mrs. Caldwell, when Mr. Jew asked her

whether Access Marketing could lend $120,000 to Balang, she told him that the

sum was too large for her but recommended ProSpect Marketing, which

ultimately provided the loan. Even though her testimony was not introduced in

the government’s case, this evidence can be used to support the verdict. See

United States v. Delgado-Uribe, 363 F.3d 1077, 1082 (10th Cir. 2004) (“If a

defendant chooses to present additional evidence [after a motion for judgment of

acquittal is denied], the defendant waives the right to have the sufficiency of the

evidence tested by the government’s case alone and we review the entire record

on appeal.” (internal quotation marks omitted)); cf. Fed. R. Crim. P. 29(b) (if a

motion for judgment of acquittal is made at the end of the government’s case, but

the court reserves its decision, “it must decide the motion on the basis of the

evidence at the time the ruling was reserved”). This was not, however, the

government’s theory of its case against Mrs. Caldwell. Indeed, Mr. Jew, who was

a key witness for the government, testified that Mrs. Caldwell said nothing about

ProSpect Marketing and that he contacted that company on his own.

To provide a coherent discussion of the sufficiency of the evidence on the

wire-fraud charge, we will analyze the evidence from the government’s

perspective, which, like Mrs. Caldwell’s version, supports a finding of her

participation in the scheme, but which in addition strongly supports a finding of

-9-
her fraudulent intent. The government’s theory was that Mrs. Caldwell assisted

the scheme by supplying the means to channel some of the mortgage-loan

proceeds to those participating in the scheme. The closing statement for the

Balang purchase listed a $10,000 “marketing service” fee to Access Marketing.

Add. to Br. of Pl.-Aplee. (Gayle Caldwell) at 228. At closing Access Marketing

submitted an invoice for that amount and it was paid out of the loan proceeds.

Access Marketing then disbursed $3,500 to Mrs. Jew and $4,500 to Mr. Caldwell,

leaving $2,000 in the Access Marketing account. Thus, Mrs. Jew received 35% of

the money, and the Caldwells jointly received the other 65%. (This 65%/35%

division was the same split of United Lending’s mortgage-broker fee that

Mr. Caldwell was to receive when he obtained a client and acted as loan officer.)

According to Mr. Jew, it was necessary that the $10,000 be funneled through

Access Marketing because United Lending was already slated to receive $32,690

for its commission in brokering the Balang transaction, the maximum that the

company could receive under lending guidelines. Consequently, if any additional

money were to be paid to the Caldwells and Mr. and Mrs. Jew, it had to be

characterized as something other than a brokerage commission. Hence, the

“marketing service” fee to Access Marketing. This evidence was sufficient for

the jury to find beyond a reasonable doubt that Mrs. Caldwell assisted in the

scheme by serving as a conduit of loan proceeds to the scheme participants.

-10-
 That leaves the question whether there was sufficient evidence that

Mrs. Caldwell had the requisite fraudulent intent—that is, whether she

participated with the knowledge that she was furthering a fraudulent scheme. In

our view, the question is not a close one.

To begin with, there is evidence that Access Marketing received the

$10,000 at closing without having performed any services. Although

Mrs. Caldwell testified that she earned the $10,000 by referring Mr. Jew to the

down-payment lender, he denied that she did, and Mrs. Caldwell did not suggest

that Access Marketing had earned the $10,000 in any other fashion. (It is also

interesting to note that this $10,000 “fee” exceeded the $8,050 commission earned

by the company that actually provided the $120,000 down-payment loan.) In

legitimate commercial transactions, people are not ordinarily paid large sums for

trivial efforts. A jury could reasonably infer that someone who receives $10,000,

despite having done nothing to earn it, likely knows that something crooked is

afoot. See United States v. Chavez-Marquez, 66 F.3d 259, 262 (10th Cir. 1995)

(large sum ($4,000) paid to defendant for relatively minimal effort (driving car

from El Paso to Albuquerque) supported inference that defendant knew that he

was transporting contraband).

Further supporting an inference of Mrs. Caldwell’s knowledge is her

participation in prior fraudulent mortgage loans. With respect to her own home

mortgage, she (1) signed a purchase agreement overstating the price of her home;

-11-
(2) obtained a down-payment loan, yet denied doing so on her loan application;

and (3) received over $12,000 in loan proceeds for her own purposes. She was

certainly no stranger to the sort of fraud employed in the Balang transaction. And

her participation in the Lewis loan shows that she was also familiar with using

Access Marketing as a conduit to conceal the true destination of loan proceeds.

At the Lewis closing Access Marketing received more than $113,000, which she

then disbursed to multiple parties, including the purchaser, her husband, and

Mr. and Mrs. Jew.

Moreover, a jury could infer that she had learned from her husband the

fraudulent nature of the mortgage-loan transaction. After all, their involvement in

mortgage lending was a joint affair in several respects. She had bought Access

Marketing from Mr. Caldwell’s bosses, Mr. and Mrs. Jew; Access Marketing had

made down-payment loans to customers for whom Mr. Caldwell was the loan

officer; and Mr. Caldwell had even performed tasks for Access Marketing, such

as endorsing a check. See generally Charles Caldwell, No. 07-6251 (discussing

sufficiency of the evidence of Mr. Caldwell’s knowledge of the fraudulent

scheme).

Finally, the jury could infer Mrs. Caldwell’s guilty knowledge if they

disbelieved her exculpatory testimony. For example, to explain Access

Marketing’s receipt of $10,000, she testified that she had referred Mr. Jew to

Balang’s down-payment lender, but the jury could have credited Mr. Jew’s denial

-12-
that she made the referral. “[F]alse exculpatory statements . . . are admissible to

prove circumstantially consciousness of guilt or unlawful intent.” United States

v. Davis, 437 F.3d 989, 996 (10th Cir. 2006) (internal quotation marks omitted).

Viewing the evidence in the light most favorable to the government, we

hold that the jury had ample grounds to find that Mrs. Caldwell had the requisite

intent to defraud.

B. Rule 404(b) Evidence

Mrs. Caldwell challenges the district court’s decision to admit evidence of

two uncharged transactions—the Caldwells’ mortgage loan for their own home

and the Lewis home purchase for which Access Marketing loaned the down

payment. The district court admitted this evidence under Federal Rule of

Evidence 404(b) to show Mrs. Caldwell’s motive and intent and a common

scheme and design. We review the decision to admit evidence under an abuse-of-

discretion standard. See United States v. Schene, 543 F.3d 627, 640 (10th Cir.

2008). We see no abuse of discretion here. As demonstrated in our discussion of

the sufficiency of the evidence of wire fraud, this evidence was probative on the

issues of knowledge and intent. And there is little likelihood that the jury used

this evidence for an improper purpose because, as Mrs. Caldwell concedes, the

district court gave a proper limiting instruction. See Charles Caldwell, No. 07-

6251, slip op. at 21–22 (holding same evidence was properly admitted against

Mr. Caldwell).

-13-
 C. Joinder and Severance

Mrs. Caldwell appeals the district court’s denial of her pretrial motion

alleging that the indictment improperly joined the charges against her with the

charges against her codefendants. We review joinder de novo. See United States

v. Colonna, 360 F.3d 1169, 1177 (10th Cir. 2004). Federal Rule of Criminal

Procedure 8(b) allows an indictment to charge multiple defendants “if they are

alleged to have participated . . . in the same series of acts or transactions,

constituting an offense or offenses.” This standard is satisfied by showing “a

common thread to each of the defendants,” which “may be established by

common evidence as to various counts.” United States v. Rogers, 921 F.2d 975,

984 (10th Cir. 1990). As further explained in our companion opinion in Charles

Caldwell, No. 07-6251, we hold that joinder was proper because the Balang

transaction shared multiple features with the other transactions charged in the

indictment.

Similarly, Mrs. Caldwell argues that the district court wrongly denied her

motion to sever her trial from that of her codefendants, a decision we review for

abuse of discretion. See United States v. Zapata, 546 F.3d 1179, 1191 (10th Cir.

2008). Federal Rule of Criminal Procedure 14(a) grants a district court discretion

to sever the trials of properly joined defendants if a joint trial “appears to

prejudice a defendant.” Mrs. Caldwell argues that she suffered prejudice because

“at least 5/6 of the evidence was not relevant to the case against Gayle Caldwell,”

-14-
thereby risking guilt by association. Aplt. Br. at 24. We are not persuaded. We

have said that Rule 14(a)’s prejudice standard requires a showing of actual

prejudice, which is not satisfied merely by pointing to a “negative spill-over

effect from damaging evidence presented against codefendants.” United States v.

Wacker, 72 F.3d 1453, 1468 (10th Cir. 1995). Mrs. Caldwell has not made the

necessary showing. The government separately grouped together the exhibits for

each transaction and its questioning of its witnesses addressed the transactions

separately. Moreover, the district court instructed the jury that “[t]he fact that

you may find one defendant guilty or not guilty as to . . . one count must not

control your verdict with reference to any other count or offense charged against

that defendant or any other defendant.” Supp. R., Pleading (Charles Caldwell),

Doc. 187 at 8. Not only do we presume that juries follow such instructions, but

the jury’s acquittal of codefendant Joseph Therrien on one count gives us extra

confidence that there was no abuse of discretion in the denial of severance. See

Caldwell, No. 07-6251, slip op. at 24–25.

D. Sufficiency of Evidence of Money Laundering

In addition to wire fraud, Mrs. Caldwell was also convicted of money

laundering under 18 U.S.C. § 1956. She contends that there was insufficient

evidence to sustain the conviction. We agree.

The pertinent language of § 1956 is as follows:

-15-
 (a)(1) Whoever, knowing that the property involved in a financial
transaction represents the proceeds of some form of unlawful
activity, conducts or attempts to conduct such a financial transaction
which in fact involves the proceeds of specified unlawful activity—

***

(B) knowing that the transaction is designed in whole or in
part—
(i) to conceal or disguise the nature, the location, the
source, the ownership, or the control of the proceeds of
specified unlawful activity . . . .

shall be sentenced to . . . imprisonment for not more than twenty
years . . . .

To establish the crime, the government must prove four elements: (1) that the

defendant knowingly conducted a financial transaction, (2) that the funds

involved were proceeds of a specified unlawful activity, (3) that the defendant

knew that the funds involved were proceeds of that unlawful activity; and (4) that

the transaction was designed to conceal the nature, location, source, ownership, or

control of the proceeds. See United States v. Rahseparian, 231 F.3d 1267, 1272

(10th Cir. 2000). Specified unlawful activity is defined to include wire fraud. See

18 U.S.C. § 1956(c)(7)(A); see also id. § 1961(1). The financial transaction

charged in the indictment was Access Marketing’s $4,500 check to Charles

Caldwell after it received the $10,000 “marketing service” fee from the proceeds

of the Balang mortgage loan. 1

1
The indictment’s money-laundering count against Mrs. Caldwell alleges
that she
(continued...)

-16-
 There can be no question that the check was from proceeds of the mortgage

loan to Balang; and we have already explained that the evidence was sufficient

for the jury to find that the mortgage loan was obtained through wire fraud in

which Mrs. Caldwell knowingly participated. Thus, the only question remaining

is whether the writing of the $4,500 check to Mr. Caldwell was “designed in

whole or in part . . . to conceal or disguise the nature, the location, the source, the

ownership, or the control of the proceeds of” the wire fraud. 18 U.S.C.

§ 1956(a)(1)(B)(i); see Cuellar v. United States, 128 S. Ct. 1994, 2003 (U.S.

2008) (construing the identical “designed . . . to conceal” language in 18 U.S.C.

§ 1956(a)(2)(B)(i), relating to the transportation of monetary instruments and

funds).

1
(...continued)
did knowingly conduct and attempt to conduct a financial transaction
affecting interstate and foreign commerce, that is, the transfer of
funds by means of a check in the amount of $4,500.00 on Access
Marketing Service, Inc.’s account . . . payable to Charles Caldwell
for a “referral fee,” which involved the proceeds of a specified
unlawful activity, that is, wire fraud as described in Count 12 in
violation of Title 18, United States Code, Section 1343, knowing that
the transaction was designed in whole or in part to conceal and
disguise the source, ownership and control of the proceeds of said
specified unlawful activity, and that while conducting and attempting
to conduct such financial transaction, [she] knew the property
involved in the financial transaction represented the proceeds of
some form of an unlawful activity.

R., Vol. 1, Pleadings (Gayle Caldwell), Doc. 1 at 32–33.

-17-
 As noted above, the evidence at trial indicated that Access Marketing was

involved in Balang’s loan for the purpose of disguising the fact that Mr. Caldwell

and United Lending (Mrs. Jew, to be specific) were receiving a significantly

larger “commission” on the transaction than was permitted. Indeed, United

Lending was already to receive a $32,690 commission, which Mr. Jew testified

was the maximum a mortgage broker could collect under lending guidelines. To

circumvent this cap, the participants in the scheme misrepresented the additional

$10,000 they would receive as a “marketing service” fee to Access Marketing.

Thus, the use of Access Marketing helped conceal and disguise the fraudulent

scheme from the mortgage lender.

But once Access Marketing received the $10,000 from the loan proceeds,

the concealment ended. Access Marketing’s $4,500 check to Mr. Caldwell (as

well as the $3,500 check to Mrs. Jew) not only failed to conceal what was going

on, it actually exposed it. The checks revealed that the money paid to Access

Marketing was slated to go to the mortgage brokers all along. Money laundering

requires more than simply writing a check with the proceeds of unlawful activity.

We have repeatedly stated that § 1956 is not a “money spending statute.” United

States v. Garcia-Emanuel, 14 F.3d 1469, 1475 (10th Cir. 1994) (internal quotation

marks omitted). We fail to see how the check to Mr. Caldwell concealed any

aspect of the wire-fraud scheme, or how Mrs. Caldwell could have intended it to

do so.

-18-
 The government’s sole argument with respect to the “designed . . . to

conceal” element is that Mrs. Caldwell “knew that moving the money quickly out

of the Access Marketing account would conceal the nature, location, source,

ownership and control of the money.” Aplee. Br. at 25. This argument tracks the

prosecution’s lone comment on the matter at closing argument:

The evidence is clear, ladies and gentleman, as soon as [the
$10,000 referral fee] hits Access Marketing, Gayle Caldwell does
what she has to do to get the bulk of that money out of Access
Marketing so that it won’t be known that Access Marketing is sitting
on that $10,000 it didn’t earn, because 8,000 of the 10,000 gets paid
out immediately by Gayle Caldwell, first to Linda Jew, and then to
Chuck Caldwell to take the ownership and control out of Access
Marketing.

R., Trial Tr. Vol. 13 at 2333.

This argument is nonsensical. We fail to see how the quick disbursement

furthered any concealment or disguised anything. The timing, rather, confirms

that from the outset the money was to go to Mr. Caldwell and Mrs. Jew. Nor do

we see how the transaction was intended to conceal that Access Marketing did

nothing to earn the money. The whole point of using Access Marketing was to

make it appear that the company had earned the money. There would be no

reason for Mrs. Caldwell to want to conceal that the money belonged, at one

point, to Access Marketing.

Accordingly, we hold that no reasonable juror could have found beyond a

reasonable doubt that Access Marketing’s $4,500 check to Mr. Caldwell was

-19-
“designed in whole or in part . . . to conceal or disguise, . . . the source, the

ownership, or the control of the proceeds” of the wire fraud. 18 U.S.C.

§ 1956(a)(1)(B)(i). We therefore reverse Mrs. Caldwell’s conviction of money

laundering.

III. CONCLUSION

We AFFIRM Mrs. Caldwell’s wire-fraud conviction and REVERSE her

money-laundering conviction.

-20-