United States v. James Larry Dobbs

EMILIO M. GARZA, Circuit Judge,

concurring in part and dissenting in part:

I concur in the majority opinion, except Part III — the money laundering convictions. As the majority points out:

One of the money laundering counts charges that Dobbs deposited approximately $4500 of the cattle sale proceeds into his wife’s bank account. The Dobbs had decided to use the account as their main operational account. The money was used to pay the ordinary expenses of the ranch and household. The other money laundering count charges that Dobbs converted a cattle sale check for approximately $37,000 into a cashiers check for $37,000 and then converted the cashiers check into four separate cashier’s checks. These smaller cashiers cheeks were then used to pay for ranch and family expenses.

Majority op. at 5668.

Both United States v. Garcia-Emanuel5 and United States v. Sanders,6 two Tenth Circuit cases on which the majority heavily relies, are money laundering cases stemming from drug sales. The issue in both cases was whether “the transactions were structured to conceal Defendant’s identity.” The court in those cases was struggling to distinguish between mere money spending and money laundering. The facts of this case are significantly different. The identity of the defendant is not at issue here; however, the source of the money is because the cattle that were sold were mortgaged to the bank.

Section 1956 of Title 18 not only prohibits any financial transaction involving the proceeds of unlawful activity designed in whole or in part to conceal the ownership but also the source of the specified activity.7 Indeed, other defendants have made the same argument that Dobbs makes; that is, that Dobbs’ open association with the transactions and the proceeds negates the intent element of the money laundering statute. The courts in those cases, however, rejected the defendants’ argument, because “§ 1956(a)(B)(i) does not require an attempt to conceal the identity of the defendant; a scheme that conceals only the source of the funds falls within the purview of the statute.” United States v. Kinzler, 55 F.3d 70, 73 (2d Cir.1995).8 Indeed, the Tenth Circuit itself has explicitly limited Sanders’ holding to apply in eases in which the defendant’s identity was at issue, but not in cases in which the defendant sought to hide the source of the proceeds:

In Sanders we noted that, according to the legislative history, Congress intended that the money laundering statute “include transactions designed to conceal the identity of the participants to the transaction.” ... We find no requirement in the statute or in Sanders that every money laundering conviction must be supported by evidence of intent to conceal the identity of the participants to the transaction. Even though the defendant made no efforts to conceal his identity ..., the evidence suffi*400ciently supports the inference that a concealment occurred in another sense. The [transaction] was designed to conceal the illegal source of the proceeds from those who would likely expose the defendant’s underlying fraudulent activities.

United States v. Lovett, 964 F.2d 1029 (10th Cir.), cert. denied, — U.S. —, 113 S.Ct. 169, 121 L.Ed.2d 117 (1992).9

Accordingly, the conclusion that there is insufficient evidence of money laundering based solely on evidence that “the use of the money was not disguised and purchases were for family expenses and business expenses” is not on target. I therefore question whether evidence that the “undisguised use” of the money is probative of Dobbs’s intent to conceal the source of the unlawful activity — the sale of mortgaged cattle whose proceeds belonged to the bank — which is the material issue before us. In my view, the concealment on which we should focus is not the identity of the defendants as in Garcia-Emanuel and Sanders, but the source of the money deposited into the Dobbs’s bank accounts. Accordingly, because the cattle sales created proceeds of an unlawful activity,10 we must focus on what he did after these sales.

In one count, Dobbs’ attempt to conceal the source of these proceeds by purchasing the $37,000 cashier check without the name of the remitter (the cattle barn) is, in my opinion, probative of money laundering. The combination of that act with changing that check into four separate checks of lesser amounts to hide the total amount of the cattle sale is, in my opinion, sufficient for conviction. See United States v. Willey, 57 F.3d 1374, 1385 (5th Cir.1995) (noting that series of unusual financial moves supports finding of intent to conceal); Hollenback v. United States, 987 F.2d 1272, 1279 (7th Cir.1993) (stating that deposits and payments in small amounts rather than entire sum satisfied intent element because payments were “irregularly structured transactions that were calculated to mislead observers as to the size of the transactions and the actual nature of the funds used”).

In the other count, whether placement of money from cattle sales proceeds into Dobbs’ wife’s account is probative of money laundering is a closer question. At least, the deposit of these proceeds into his wife’s account was unusual under the facts of this case. The Eighth Circuit as well as our own has found deposits into an account other than the defendant’s personal account sufficient to show an intent to conceal. See United States v. Willey, 57 F.3d at 1385-86 (noting that deposits into business account support finding of intent to conceal); United States v. West, 22 F.3d 586, 591 (5th Cir.) (holding that deposits of illegal proceeds into girlfriend’s account satisfied money laundering statute), cert. denied, — U.S. —, 115 S.Ct. 584, 130 L.Ed.2d 498 (1994); United States v. Sutera, 933 F.2d 641, 648 (8th Cir.1991) (holding that deposit of proceeds of gambling into business account sufficed to support intent to launder money); cf. United States v. Peery, 977 F.2d 1230, 1234 (8th Cir.1992) (holding that defendant’s transfers between accounts satisfied intent element even though identity not concealed), cert. denied, — U.S. —, 113 S.Ct. 1354, 122 L.Ed.2d 734 (1993).11

*401A close examination of even Garcia-Emanuel and Sanders, on which the majority relies, supports the conviction rather than the acquittal of Dobbs. The majority correctly points out that in Counts 9 and 10 of Garcia-Emanuel, the defendant withdrew $9,000 in drug money from his bank account to purchase a cashier’s check on which he was named remitter to make payment on a residential mortgage. 14 F.3d at 1476. The Tenth Circuit held that this use of a cashier’s cheek was insufficient to prove concealment. Id.12 Clearly, most of these transactions fall under the category of “money spending” as opposed to “money laundering,” but this is because the defendant’s identity was the item that had to be concealed.

In Count 11, however, the court held that the purchase of some land with a cashier’s check on which the defendant’s restaurant was listed as remitter was sufficient documentary evidence to support a finding of deception. Id. at 1476-77.13 In Count 13, the defendant first bought a CD with cash then used the CD as collateral for a loan to an insurance company he partially owned. This was described by the court as “classic money laundering” because the defendant “through a complex series of transactions, transform[ed] the cash he received selling drugs into a legitimate business investment. ...” Id. at 1477. This is a similar scheme to that which Dobbs used to hide the source of the cattle sales proceeds in this case.

In Sanders, the defendant used drug money to purchase two vehicles. 929 F.2d at 1471. “The Sanderses personally handled the transaction to purchase the Volvo and were readily identified by the salesperson with whom they dealt.” Id. This transaction was described as a “ ‘normal cash transaction.’ ” Id. Although the Sanderses placed title of the Lincoln in their daughter’s name, they traded in their old car .and paid the difference in cash. “All three of the Sanderses were readily identified by the Lincoln salesperson with whom- they dealt.” Id. Furthermore, “[b]oth the Volvo and the Lincoln were conspicuously used by the Sand-erses.” Id. The Tenth Circuit again held that the evidence was insufficient to support a conviction, although it stated that the Lincoln purchase “presents a closer case,” because one might infer an intent to hide behind the daughter’s identity. Id. at 1472. In this case, Dobbs placed the proceeds of the four unmarked checks in his wife’s bank account — a course of action unlike his previous handling of cattle sales checks; this change of method is probative of concealment. Thus, I would affirm the conviction on this count.

In summary, Dobbs’ eventual use of the funds may have been “open and notorious,” majority op. at 5668, but that does not answer the question of whether the manner in which he moved the funds to his accounts demonstrated an intent to conceal the source *402of those funds — the improper sale of cattle.14 I am simply not convinced that the Government did not prove its case on these money laundering charges. Accordingly, I respectfully dissent from the reversal of Dobbs’ money laundering convictions.

. 14 F.3d 1469 (10th Cir.1994).

. 929 F.2d 1466 (10th Cir.), cert. denied, 502 U.S. 846, 112 S.Ct. 143, 116 L.Ed.2d 109 (1991).

. The section states as follows:

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 ... knowing that the transactions is designed in whole or in part ... to conceal or disguise the nature, the location, the source, the ownership, or the control of the proceeds....

18 U.S.C. § 1956(a)(1) (1988) (emphasis added).

.Accord United States v. Manarite, 44 F.3d 1407 (9th Cir.) (rejecting argument that money laundering statute required intent to conceal identity and holding that attempts to conceal source of proceeds satisfied intent element), cert. denied, — U.S. —, 115 S.Ct. 2610, 132 L.Ed.2d 854 (1995); United States v. Dimeck, 24 F.3d 1239, 1246 (10th Cir.1994) (explaining that purpose of statute is to focus on “characteristics which, when concealed or obliterated, allow illegal proceeds to be passed into commerce as legitimate proceeds more easily”); United States v. Alford, 999 F.2d 818, 824 (5th Cir.1993) (holding that intent element is shown if transactions were for "the purpose of disguising the nature, location and control of the proceeds”); Hollen-back v. United States, 987 F.2d 1272, 1278 (7th *400Cir. 1993) (stating that statute covers more than intent to hide identity).

.The court clarified further:

To find that the money laundering statute is aimed solely at those transactions designed to conceal the identity of the participants to the transaction is to ignore the broad language of the statute.... In short, the money laundering statute is not aimed solely at commercial transactions intended to disguise the relationship of the item purchased with the person providing the proceeds; the statute is aimed broadly at transactions designed in whole or in part to conceal or disguise in any manner the nature, location, source, ownership or control of the proceeds of unlawful activity.

Lovett, 964 F.2d at 1034 n. 3.

. See United States v. Edgmon, 952 F.2d 1206, 1209-10 (10th Cir.1991) (stating that improper sale of FmHA-mortgaged cattle created "proceeds of an illegal activity”), cert. denied, —U.S. —, 112 S.Ct. 3037, 120 L.Ed.2d 906 (1992); cf. United States v. West, 22 F.3d 586, 591 (5th Cir.) (holding that transactions underlying bankruptcy fraud produced "proceeds of unlawful activity”), cert. denied, — U.S. —, 115 S.Ct. 584, 130 L.Ed.2d 498 (1994).

. Moreover, the evidence as a whole supports a finding of intent on this count. See Willey, 57 F.3d at 1386 ("[I]t is not necessary to prove with regard to any single transaction that the defendant removed all trace of his involvement with the money or that the particular transaction charged is itself highly unusual ... [and] it is not necessary that a transaction be examined wholly *401in isolation if the evidence tends to show that it is part of a larger scheme that is designed to conceal illegal proceeds.”).

. The court's conclusion on other counts was the same. In Count 12, he made a second payment on some land, again using a cashier’s check on which he was named as remitter. Again the court held that this evidence was insufficient. In Count 14, Defendant made no effort to conceal a $15,000 partial cash payment for a Paso Fino horse. In Count 22, he made a similar payment as in Count 14. In Counts 18, 19, 20, 24 and 25, he purchased horses and other horse paraphernalia with cash or checks on which his name appeared. In count 21, again there was insufficient evidence of money laundering because Garcia appeared as the remitter. Lastly, in Count 23, $4,400 wired by Garcia to a Florida bank account of a Columbian national without evidence "of an unusual structure to the transaction, of undue secrecy surrounding it, or of any attempt to avoid attention” was insufficient upon which to convict. Id.

. Indeed, Dobbs' "open and notorious” use may show that he was an inept money launderer, but it does not necessarily negate the conclusion that he laundered money. See Sutern, 933 F.2d at 648 ("While the money might have been better hidden ..., the money laundering statute does not require the jury to find that [the defendant] did a good job of laundering the proceeds.”).

. Indeed, in Count 15, Garcia's wife purchased another Paso Fino horse drawing a $20,000 check from a joint checking account in which three separate checks in the amounts of $7,000, $8,000, and $8,000 had been deposited the week before. Although a straight (B)(ii) case, the government prosecuted the case under (B)(i). Although the court stated that ”[t]he inference under this theory, that the design to conceal in the first transaction (the purchase of the cashier's check) can be imputed to the second (the purchase of the horse), is considerably weaker,” the court nevertheless held that "this is evidence of a design to conceal.” Id. at 1477.