United States v. Bobby C. McDougald

BOGGS, Circuit Judge,

dissenting.

There is no significant dispute over the state of the facts or the record in this case. The dispute is over whether, in the words of Jackson v. Virginia, 443 U.S. 307, 320, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979), “any rational trier of fact” could believe beyond a reasonable doubt that McDougald used drug proceeds when he purchased a car for Eddie McFadden and that he knew he was using drug proceeds. A recitation and proper analysis of the evidence introduced at trial convinces me that there exists at least one rational person who could find that this is what occurred.

The key persons in this drama are: McDougald, the defendant; Ronald Watts, a close friend of McDougald’s who was also involved in a drug conspiracy centered in California; and Eddie McFadden, a major drug dealer in California, a federal fugitive, and the center of the California drug ring.

Watts recruited McDougald to drive from Columbus, Ohio to California in a van belonging to Watts. After driving across the continent, McDougald was to pick up McFadden at a McDonald’s. After a failure of connections, McFadden was ultimately located and McDougald drove McFadden and an associate back across the country to Columbus. Within a day or two after, the return, Watts asked McDougald to come over to his house and buy a car for McFadden. While at the house, McDoug-ald saw McFadden give $10,000 to an associate, Burton. Watts, McDougald, and Burton went to a dealership, where the car, a Beretta, had already been picked out. McDougald pretended to be the person buying the car, took the cash from Burton, literally “under the table,” and then paid for the car and registered it in his own name. Two days later, McDougald drove McFadden back to California in the new car and then flew back to Columbus.

The following year, police who were investigating the California drug ring asked McDougald about cars that he owned.1 McDougald answered their questions with a series of lies, designed to conceal his connection with the car, as well as McFadden’s. In addition, at trial McDougald denied buying the car for McFadden and testified to a series of other events involving *265the car that were directly contradicted by the government’s evidence. As the court correctly states, a rational jury could certainly conclude “that this entire story was fabricated.” At 261.

The court’s entire opinion appears to be based on the notion that it is within the realm of physical possibility that McFadden has substantial sources of income other than drug dealing; that he procured the cash given to McDougald from these sources; and/or that McDougald had no idea of McFadden’s sources of income. While this is a scenario that a credulous juror could certainly believe, the question is whether a rational juror could believe to the contrary. I believe that such a juror could.

First, a drug dealer with other sources of income is not thereby insulated from money laundering charges. The government clearly proved that McFadden was a drug dealer with substantial income from drugs. The government is not required to prove that the drug dealer has no other income. United States v. Jackson, 935 F.2d 832, 839-41 (7th Cir.1991). In Jackson, the defendant had sufficient legitimate income to account for his purchases. In denying a motion to dismiss for insufficiency of the evidence, the court held that the government need not trace the “origin of all funds deposited into a bank account to determine exactly which funds were used for which transaction.” Id. at 840.

The court’s theory would appear to provide substantial protection for the drug dealer of independent wealth that would not be available to the purely entrepreneurial drug dealer. Thus, a drug dealer with a $1,000,000 trust fund would be able to allege that any purchase up to the interest on his trust corpus came from that source. There is no law to this effect. Even Webster, 960 F.2d at 1308, cited by the court, does not stand for the proposition that it is impossible to commit money laundering unless you buy something that costs more than all of your legitimate income. Otherwise, any indictment focusing on the purchase of item X could be defeated by showing that there is legitimate income of at least that amount. In fact, a person who has substantial illegal income is almost always in the position of spending commingled cash when using large amounts of cash. In our case, of course, there was no evidence of a legitimate source of income for McFadden, and the government cannot be faulted for not proving a negative.

As to McDougald’s knowledge, the evidence here shows considerably more than “guilt by association.” The evidence against McDougald is not that he went bowling or to church with Watts; or that they have friends and acquaintances in common. Instead, the evidence shows that McDougald took three cross-country trips at the behest of Watts and McFadden, for no apparent legitimate purpose; that McDougald lied repeatedly about these transactions; and that McDougald knew that he was engaged in concealing McFadden’s connection with the car.

Based on these facts, it is not only rational to believe that drug money was involved, it requires an unusually trusting and credulous nature to doubt that drug money was involved.

McDougald may not allow an assumption of “deliberate ignorance” to shroud his knowledge. See United States v. Strickland, 935 F.2d 822, 826-827 (7th Cir.1991) (upholding a jury instruction that knowledge can be inferred from deliberate ignorance). Nor was the government in any way lax in failing to produce evidence that would normally be available. The quality of proof in this case shows no indication of differing significantly from any other money laundering case. A drug dealer in McFadden’s position, under the majority’s rationale, would appear to be able to use a pawn like McDougald with impunity so long as no witness could be found to testify that McDougald was unmistakenly told, in the presence of others, “we are drug dealers and I am giving you drug money.” The law does not require so extensive a burden. I therefore dissent.

Before: MERRITT, Chief Judge; MARTIN and BOGGS, Circuit Judges.

*266ORDER

June 16, 1993.

The panel has considered the petition for rehearing and is of the opinion that rehearing is unnecessary. It is therefore ADJUDGED and ORDERED that the petition for rehearing shall be, and hereby is, denied. It is further ORDERED that the addendum to the opinion attached to this order shall be, and hereby is, filed and made a part of the opinion in this case.

SUPPLEMENTAL OPINION

PER CURIAM.

The government’s motion for rehearing has been denied, but the court grants the government’s request that we reconsider language regarding the evidentiary significance of the defendant’s false statements to police and at trial. The language objected to is:

In short, Bobby McDougald lied about his role in the purchase of the Beretta only after he was put on notice that he had done something wrong. This evidence is irrelevant to his state of mind on June 4, when he purchased the car.

We agree that this statement is overly broad. McDougald’s false exculpatory statements are relevant to his state of mind at the time of the purchase. In this case, however, the events intervening between the time of the car purchase and the time of the false statements reduce or eliminate the strength of any inferences that may be drawn from these statements.

. Police questioned McDougald because, while engaged in the execution of a search warrant at the Wattses’ home, officers located a set of keys *265to the Beretta and registration tags that named McDougald as the purchaser of the vehicle.