United States Court of Appeals
For the First Circuit
No. 03-1065
UNITED STATES OF AMERICA,
Appellee,
v.
GEORGE C. ROY,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Richard G. Stearns, U.S. District Judge]
Before
Torruella, Circuit Judge,
Rosenn, Senior Circuit Judge,*
Howard, Circuit Judge.
John F. Cicilline for appellant.
Virginia M. Vander Jagt, Assistant United States Attorney,
with whom Michael J. Sullivan, United States Attorney and Susan M.
Poswistilo, Assistant United States Attorney, were on brief, for
appellee.
July 9, 2004
*
Of the United States Court of Appeals for the Third Circuit,
sitting by designation.
HOWARD, Circuit Judge. George Roy appeals from his
convictions for promotional money laundering, see 18 U.S.C. §
1956(a)(3)(A), and conspiracy to engage in promotional money
laundering, see 18 U.S.C. § 1956(h). The charges arose out of
three transactions in which Roy, for a commission, exchanged with
a cooperating witness over $250,000 in one-hundred-dollar bills for
an equivalent amount in bills of smaller denomination. The
witness, an acquaintance of Roy's, had approached him posing as a
marijuana dealer who needed his money "cleaned" in this way both to
keep his supplier happy and to make it easier to travel
internationally with large amounts of cash. Much of the evidence
consisted of tape recorded conversations between Roy and the
witness -- conversations in which Roy expressed an interest in
reselling and an ability to resell some five or six hundred pounds
of the high grade marijuana to which the witness claimed access.
This case was tried on the theory that, in the course of
his dealings with the cooperating witness, Roy both conspired to
and did in fact "conduct[] or attempt to conduct[] a financial
transaction involving property represented to be the proceeds of
specified unlawful activity" -- to wit, marijuana sales involving
the cooperating witness -- "with the intent . . . to promote the
carrying on of specified unlawful activity" -- to wit, future
marijuana sales to and by that same witness. 18 U.S.C. §
1956(a)(3)(A); 18 U.S.C. § 1956(h). Roy's principal appellate
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argument is that the district court committed reversible error in
informing the jury that Roy could be convicted if he engaged in the
actus reus with an intent to promote "or facilitate" the already
referenced marijuana sales. As Roy correctly points out, the
statute makes no mention of an intent to "facilitate"; an intent to
"promote" is required. Promotion and facilitation are not the
same, Roy posits, because one can facilitate something simply by
doing nothing, whereas one must engage in affirmative conduct in
order to engage in "promotion." Thus, Roy contends, the
instruction impermissibly and prejudicially diminished the
government's burden of proof. The government's principal response
is that, contrary to Roy's protestations, the words "promote" and
"facilitate" are synonymous and have been used interchangeably by
a number of appellate courts, including this court, in describing
the mens rea required by 18 U.S.C. § 1956(c)(3)(A). See United
States v. LeBlanc, 24 F.3d 340, 346 (1st Cir. 1994); see also
United States v. Panaro, 266 F.3d 939, 949-50 (9th Cir. 2001);
United States v. Reed, 167 F.3d 984, 993 (6th Cir. 1999); United
States v. Paramo, 998 F.2d 1212, 1215-16 (3d Cir. 1993); United
States v. Skinner, 946 F.2d 176, 177-78 (2d Cir. 1991).
Individual words usually signify a range of ideas, and we
have little trouble agreeing with Roy that, in some contexts,
"promotion" and "facilitation" might signify different concepts.
Moreover, we may grant for the sake of argument that one sometimes
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may reasonably be thought to have "facilitated" something without
actually doing anything, whereas "promotion" always (or at least
nearly always) requires affirmative conduct of some sort. But the
question here is not whether "promotion" and "facilitation" are
always synonymous; the question is whether, in the context of the
jury instructions, there is a reasonable likelihood that the jury
understood the district court's use of the word "facilitate" to
denote something materially easier for the government to prove than
the "promotion" that is required by the statute. See United States
v. DeLuca, 137 F.3d 24, 37 (1st Cir. 1998) (collecting cases).
Roy says that there is such a reasonable likelihood
because the jury instructions "clearly misled the jury as to the
level of involvement required to convict Mr. Roy." The argument
continues:
Had the District Court properly instructed the
jury on the meaning of promote, the verdict
likely would have been different. Mr. Roy's
actions may have facilitated the narcotics
activity, but that certainly does not mean he
promoted, or intended to promote, such
activity. Unfortunately, based on the
District Court's instructions, the jury
believed it was enough to convict Mr. Roy if
he merely facilitated the activity.
But Roy's elaboration of his argument incorrectly assumes that the
district court's instruction on promotion or facilitation described
the actus reus at which the statute is directed. It did not. As
set forth above, the instruction described the actus reus
prohibited by the statute as the conducting of (or attempted
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conducting of) financial transactions involving the proceeds of
unlawful activity (here specified to be marijuana sales). The
concepts of "promotion" or "facilitation" came into play only in
describing the mens rea with which one must have engaged in the
actus reus. Thus, contrary to Roy's argument, the jury was not
permitted to convict on a showing that Roy somehow inertly
facilitated the narcotics activity. Rather, it was asked whether
Roy had engaged in affirmative conduct while harboring a specified
mens rea: "to promote or facilitate" the carrying on of the
specified narcotics-related activity. Because it is incoherent to
say that one engaged in affirmative conduct with an intent to bring
about some consequence by means of one's facilitative inaction, we
think there is no reasonable likelihood that the jury understood
the district court's use of the verb "facilitate" in the jury
instructions to denote conduct-free passivity. And because Roy has
not suggested any other definition of "facilitate" under which the
jury was reasonably likely to have convicted by finding that he
engaged in the actus reus with something short of the promotive
intent required by the statute, we reject his challenge to the
instructions. See DeLuca, 137 F.3d at 37.
Roy's remaining arguments warrant no more than a brief
mention. Roy contends that the evidence was insufficient to
support the jury's verdict, arguing that the jury could only have
found that he exchanged cash for cash with an intent to earn a
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commission (and with an indifference to the success or failure of
the marijuana purchases made or to be made with the cash he
washed). But Roy's argument in this respect completely omits
reference to the evidence that he had expressed an interest in and
an ability to resell some five to six hundred pounds of the
marijuana to which the cooperating witness claimed access. This
evidence permitted the jury to infer that Roy and the witness had
a mutual interest in the continued success of the witness's
marijuana distribution business. See United States v. London, 66
F.3d 1227, 1242-43 (1st Cir. 1995). Such an inference is
sufficient to satisfy the statute. See id.
Roy asserts that the district court inadequately
explained to the jury the specific intent required for conviction
under the statute. This assertion provides no ground for
disturbing the judgment because it has been made without a specific
explanation of how and why the instructions fell short. See United
States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990). This same
principle of inadequate appellate briefing dooms Roy's non-specific
challenge to "the introduction of evidence relating to marijuana
activities." Surely much of the evidence of "marijuana activities"
was relevant to the issue of Roy's intent in engaging in the three
financial transactions in question. Roy's failure to differentiate
among and to discuss in context the effect of the admission of
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specific blocs of such evidence renders incomprehensible his
arguments under Fed. R. Crim. P. 401, 403, and 404.
Roy says that the district court "improperly" admitted
the excerpts of the taped conversations between himself and the
cooperating witness, but he identifies no legal principle or ground
in support of his argument. In any event, the court granted Roy's
motion under Fed. R. Evid. 106 to play the entire recording so as
to avoid any risk of distortion due to incompleteness, see United
States v. Awon, 135 F.3d 96, 101 (1st Cir. 1998), abrogated on
other grounds in United States v. Piper, 298 F.3d 47, 57 n.5 (1st
Cir. 2002), and we fail to see any other possible flaw in the
admission of the tapes. Roy also says that the court erred in
denying his pretrial motions under Fed. R. Crim. P. 12(d)(2) and
7(f) for a designation of evidence and/or for a bill of
particulars, but he fails to explain how he might have been
prejudiced by any error in the denial of his motions. A showing of
prejudice is essential to the success of these claims. See United
States v. Candelaria-Silva, 162 F.3d 698, 702 (1st Cir. 1998)
(interpreting Fed. R. Crim. P. 12(d)(2)); see also United States v.
Nelson-Rodriquez, 319 F.3d 12, 31 (1st Cir. 2003) (discussing
motions for a bill of particulars), cert. denied, 123 S. Ct. 2589-
90 (2003). Finally, Roy challenges the court's refusal at
sentencing to adjust his offense level for acceptance of
responsibility under U.S.S.G. §3E1.1, but the court's ruling was
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proper in view of Roy's continued insistence that he acted without
the requisite criminal intent. See United States v. Mikutowicz,
365 F.3d 65, 75-77 (1st Cir. 2004) (acceptance-of-responsibility
adjustment not appropriate where defendant admits to the actus reus
but goes to trial to contest the government's allegation that his
conduct was willful).
Affirmed.
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