UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT
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No. 93-3280
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
HAYWOOD LEE CAVALIER,
Defendant-Appellant.
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Appeal from the United States District Court
For the Eastern District of Louisiana
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(March 14, 1994)
Before WISDOM, BARKSDALE, and EMILIO M. GARZA, Circuit Judges.
EMILIO M. GARZA, Circuit Judge:
Haywood Lee Cavalier appeals his conviction for causing the
conducting of a financial transaction involving the proceeds of
mail fraud, with the intent to promote the carrying on of the
fraud, in violation of 18 U.S.C. §§ 1956(a)(1)(A)(i), 2 (1988).1
1
Section 1956(a)(1)(A)(i) provides:
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 . .
. with the intent to promote the carrying on of specified
unlawful activity . . . shall be sentenced to a fine of
not more than $500,000 or twice the value of the property
involved in the transaction, whichever is greater, or
imprisonment for not more than twenty years, or both.
Section 2 provides:
Cavalier argues that the district court erred in denying his
motions to dismiss the underlying indictment. Finding no error, we
affirm.
I
Cavalier's nephew, Gregory Cavalier, purchased a 1986
Chevrolet van which was insured by Allstate Insurance Corporation
("Allstate") and financed by General Motors Acceptance Corporation
("GMAC"). The nephew could not afford the monthly payments, so
Cavalier took possession of the van and agreed to pay Allstate and
GMAC. He did not take legal title to the vehicle because of the
expenses involved in transferring title. Cavalier found that he
also could not make the payments on the van. He thought of burning
the van, but a friend suggested that he send it to Honduras
instead. Cavalier shipped the van to Honduras, where an agent sold
it for approximately $10,000.00. Gregory Cavalier then reported to
Allstate that the van had been stolen. Based on the false theft
report, Allstate paid GMAC $9,749.50 to satisfy the lien on the
vehicle.
In an unrelated incident, Louisiana authorities charged
Cavalier with possession with intent to distribute cocaine, but
agreed to dismiss the charge if Cavalier cooperated in an ongoing
(a) Whoever commits an offense against the United States
or aids, abets, counsels, commands, induces or procures
its commission, is punishable as a principal.
(b) Whoever willfully causes an act to be done which if
directly performed by him or another would be an offense
against the United States, is punishable as a principal.
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operation. Pursuant to the plea bargain agreement, Cavalier
provided information that resulted in the arrest of William Vance.
With revenge as an apparent motive, Vance informed Allstate about
Cavalier's insurance fraud.
Based on the use of the mail to deliver the false theft
report, Cavalier was charged with aiding and abetting mail fraud,
in violation of 18 U.S.C. §§ 1341, 2 (1988). Count III of the
indictment charged Cavalier with causing the conducting of a
financial transaction involving the proceeds of mail fraud))namely
Allstate's transfer of the check to GMAC))with the intent to
promote the carrying on of the fraud, in violation of 18 U.S.C.
§ 1956(a)(1)(A)(i), 2. Cavalier filed a motion to dismiss Count
III of the indictment based on his contention that Count III did
not sufficiently charge a crime under §§ 1956(a)(1)(A)(i), 2.
Cavalier also filed a motion to dismiss the entire indictment based
on his contention that Louisiana authorities violated certain terms
of his plea bargain agreement. The district court denied both
motions.
Pursuant to his guilty plea, Cavalier was convicted on all
counts of the indictment and sentenced to a term of 41 months
imprisonment. On appeal, Cavalier contends that the district court
erred in denying his motions to dismiss the indictment.
II
A
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Cavalier initially challenges the sufficiency of Count III of
the indictment. An indictment is sufficient if it contains the
elements of the charged offense, fairly informs the defendant of
the charges against him, and insures that there is no risk of
future prosecutions for the same offense. United States v. Arlen,
947 F.2d 139, 144 (5th Cir. 1991), cert. denied, 112 S. Ct. 1480
(1992). Because Cavalier does not argue that he was not fairly
informed of the charges against him or that he risks double
jeopardy, we need consider only the first requirement. "Whether an
indictment sufficiently alleges the elements of an offense is a
question of law to be reviewed de novo." United States v. Shelton,
937 F.2d 140, 142 (5th Cir.), cert. denied, 112 S. Ct. 607 (1991).
To obtain a conviction for money laundering, the government
must prove "[t]hat the defendant 1) conducted or attempted to
conduct a financial transaction, 2) which the defendant knew
involved the proceeds of unlawful activity, 3) with the intent to
promote or further unlawful activity." United States v. Ramirez,
954 F.2d 1035, 1039 (5th Cir.), cert. denied, 112 S. Ct. 3010
(1992). Count III of the indictment states:
On or about January 13, 1988, in the Eastern District of
Louisiana, HAYWOOD LEE CAVALIER, (a) knowing that the
monetary instrument involved represented the proceeds of
some form of unlawful activity, as defined in Title 18,
United States Code, Section 1956(c), (b) did knowingly
and willfully conduct and cause to be conducted a
financial transaction, as defined in Title 18, United
States Code, Section 1956(c)(4), that is, the transfer
and delivery to GMAC of check #94384986-3, in the amount
of $9,749.50, by Allstate, a financial institution, as
defined in Title 18, United States Code, Section
1956(c)(6), which was engaged in and the activities of
which affected interstate commerce, and (c) such
financial transaction did in fact involve the proceeds of
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specified unlawful activity, that is, the knowing and
intentional execution of the mail fraud scheme alleged in
Counts 1-2 above, and (d) the defendant did so with the
intent to promote the carrying on of such specified
unlawful activity. All in violation of Title 18, United
States Code, Section 1956(a)(1)(A)[(i)] and Section 2.
Cavalier first argues that he did not cause to be conducted a
financial transaction between Allstate and GMAC because he had no
dominion or control over Allstate. Cavalier cites no authority for
the proposition that one must have dominion over a party to a
financial transaction to actually cause the occurrence of that
transaction. The facts clearly show that the sending of the false
theft claim to Allstate caused Allstate to transfer a check to
GMAC, thereby extinguishing GMAC's lien on the van. We therefore
reject the argument that Cavalier did not cause to be conducted a
financial transaction between Allstate and GMAC.2
Cavalier also argues that the check which Allstate transferred
to GMAC did not involve the proceeds of unlawful activity because
the check was used to satisfy a purely civil obligation))i.e., the
lien on the van. We also find this argument without merit. The
ultimate use of the check is irrelevant to determining whether the
check involved the proceeds of unlawful activity. The check which
2
Cavalier also argues that § 1956(a)(1)(A)(i) applies only
to one who conducts or attempts to conduct a financial transaction
involving illegal proceeds, and not one who causes to be conducted
such a transaction. Because Cavalier fails to read § 1956 in the
context of § 2(b), we reject this argument. See 18 U.S.C. § 2(b)
(providing that "[w]hoever willfully causes an act to be done which
if directly performed by him or another would be an offense against
the United States, is punishable as a principle" (emphasis
added)). Undoubtedly, if Cavalier himself had sent the proceeds of
his mail fraud to GMAC in order to satisfy the lien, then he would
have been punishable under § 1956.
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Allstate transferred to GMAC resulted from the sending of the false
theft report, and therefore constituted the proceeds of Cavalier's
mail fraud.
Lastly, Cavalier argues that Allstate's transfer of the check
to GMAC cannot demonstrate his intent to promote the carrying on of
his mail fraud because the mail fraud was complete when he devised
a scheme to defraud Allstate and sent via the mail a false claim to
Allstate for the purpose of executing the scheme.3 According to
Cavalier, one cannot promote a completed unlawful activity for
purposes of § 1956(a)(1)(A)(i).4 We disagree.
In United States v. Paramo, 998 F.2d 1212 (3d Cir. 1993),
cert. denied, 1993 WL 465420 (Feb. 22, 1994), the defendant made a
similar challenge to his conviction under § 1956(a)(1)(A)(i),
contending that a defendant cannot promote an already completed
unlawful activity. Citing the definition contained in Black's Law
Dictionary))to "promote" something is to "contribute to [its]
growth . . . or prosperity"))the court held that "a defendant can
engage in financial transactions that promote not only ongoing or
future unlawful activity, but also prior unlawful activity." Id.
at 1212; see also United States v. Montoya, 945 F.2d 1068, 1071
3
See 18 U.S.C. § 1341; United States v. Church, 888 F.2d 20, 23 (5th
Cir. 1988) (stating that to obtain a conviction for mail fraud, the government
must prove both a scheme to defraud and the use of the mails for the purpose of
executing the scheme).
4
In rejecting this argument, the district court found that
the "satisfaction of Gregory Cavalier's debt to GMAC was an
integral part of the overall [fraud] scheme involving the van."
The court therefore concluded that Allstate's transfer of the check
to GMAC, which satisfied GMAC's lien on the van, effectively
promoted the mail fraud.
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(9th Cir. 1991) (holding that a defendant can conduct a financial
transaction with the intent to promote an already completed
activity for purposes of § 1956(a)(1)(A)(i)). Here, the sending of
the false theft report via the mail completed the specified
unlawful activity of mail fraud. See 18 U.S.C. § 1341. It is
undisputed that Allstate's transfer of a check to GMAC furthered
Cavalier's scheme to defraud by extinguishing the lien on the van.
We think it equally clear that by furthering the overall scheme of
which the completed mail fraud was a part, Allstate's transfer of
a check to GMAC contributed to the prosperity of, and therefore
promoted the completed mail fraud.
Cavalier's reliance upon United States v. Jackson, 935 F.2d
832 (7th Cir. 1991) is misplaced. In Jackson, the court recognized
that a person promotes a specified unlawful activity for purposes
of § 1956(a)(1)(A)(i), only when he or she reinvests the proceeds
thereof to further that activity. See id., 935 F.2d at 842.
Accordingly, the court held that a defendant's purchase of cellular
phones for his personal use, made with the proceeds of his
continuing drug enterprise, was not a financial transaction which
promoted that enterprise. See id. at 841. Here, Cavalier caused
to be reinvested or plowed back the proceeds of his mail fraud to
promote his overall scheme to defraud Allstate))i.e., Cavalier
caused Allstate to transfer a check to GMAC which extinguished the
lien on the van. This was not a case of a person simply using
illegally obtained funds to purchase personal items. We therefore
hold that Allstate's transfer of a check to GMAC could evidence
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Cavalier's intent to promote the underlying mail fraud.
Accordingly, we reject Cavalier's challenge to the sufficiency of
Count III of the indictment.5
B
Cavalier also contends that Louisiana authorities, in
connection with a written plea bargain agreement, promised him that
he would not be prosecuted for any information arising out of his
cooperation. He argues that Louisiana authorities broke this
promise when United States Customs officials used Vance's
information to prosecute Cavalier for insurance fraud, information
which Cavalier believes arose out of Cavalier's cooperation. Even
assuming, arguendo, that Louisiana authorities made such a
promise,6 we think it clear that Vance's information did not arise
out of or derive from Cavalier's cooperation. As the district
court correctly pointed out, the information regarding Cavalier's
insurance fraud was volunteered by Vance, and was not related to
the information which Cavalier provided concerning Vance's drug
5
We further summarily dispose of Cavalier's contention
that § 1956 is unconstitutionally vague. "[T]he void-for-vagueness
doctrine requires only that a penal statute define the criminal
offense with sufficient definiteness that ordinary people can
understand what conduct is prohibited and in a manner that does not
encourage arbitrary and discriminatory enforcement." Kolender v.
Lawson, 461 U.S. 352, 357, 103 S. Ct. 1855, 1858, 75 L. Ed. 2d 903
(1983). As applied to Cavalier, the statute gave ample notice that
the conduct he engaged in was prohibited. See U.S.C. §
1956(a)(1)(A)(i) (providing that a defendant must possess the
intent to promote the carrying on of the specified unlawful
activity).
6
The district court found no evidence in the record to
suggest that Louisiana authorities promised Cavalier immunity in
return for his cooperation in the sting operation against Vance.
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activities. That Vance may have volunteered information against
Cavalier as a matter of revenge is irrelevant to any immunity which
Cavalier may have had. We therefore reject Cavalier's immunity
argument.
III
For the foregoing reasons, we AFFIRM.
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