United States v. Cavalier

                  UNITED STATES COURT OF APPEALS
                           FIFTH CIRCUIT

                           _____________

                            No. 93-3280
                           _____________


               UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

                              versus

               HAYWOOD LEE CAVALIER,

                                    Defendant-Appellant.

         ________________________________________________

           Appeal from the United States District Court
               For the Eastern District of Louisiana
         ________________________________________________
                          (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.

                                    -2-
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




                               -3-
     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

                                -4-
       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.

                                 -5-
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.

                                     -6-
(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


                                          -7-
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.

                                        -8-
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.




                               -9-