United States Court of Appeals,
Eleventh Circuit.
No. 94-8239
Non-Argument Calendar.
UNITED STATES of America, Plaintiff-Appellee,
v.
Rodger Dale JENKINS; Ricky Edward Dyer, Defendants-Appellants.
July 19, 1995.
Appeals from the United States District Court for the Northern
District of Georgia. (No. 4:93-00003-CR-01-HLM), Harold L. Murphy,
Judge.
Before TJOFLAT, Chief Judge, KRAVITCH and ANDERSON, Circuit Judges.
PER CURIAM:
In this case, which arose out of an elaborate kickback scheme,
appellants were convicted on multiple counts of transporting stolen
and fraudulent securities in interstate commerce, of conspiring to
do so, and of engaging in money laundering. Appellant Dyer
challenges his convictions and sentences. Appellant Jenkins
challenges only his sentences.
Appellant Dyer contends that the district court erred: (1) in
denying his mid-trial motion to dismiss the indictment; (2) in
refusing to instruct the jury concerning the Government's alleged
destruction of evidence; and (3) in the comments it made (without
defense objection) in the presence of the jury in response to an
inappropriate argument Dyer's attorney was making to the jury.
Dyer's contentions are patently meritless; we therefore affirm his
convictions.
Appellants argue that their sentences should be set aside for
two reasons. First, that the district court erred in declining to
group together counts 2-8 and 9-11. We are not persuaded.
The offenses charged in counts 2-8 and 9-11 were appropriately
grouped separately because transporting stolen goods (counts 2-8)
and engaging in illegal monetary transactions (counts 9-11) are not
the same type of offense or closely related under the facts.
First, the victims differed: the counts 2-8 victim is World
Carpet; the counts 9-11 victim is society. Second, different
conduct is criminalized: the elements of interstate transportation
of stolen securities or fraudulently taken goods differ from the
elements of money laundering. Third, the offense level for counts
2-8 does not determine the offense level for counts 9-11. Among
other things, the separate guidelines applicable to these two
groups of counts measure different harms (in addition to different
conduct). In sum, appellants' first argument is meritless.
We are persuaded, however, by appellants' second argument
that the district court, in determining that the value of the funds
involved in counts 9-11 totalled more than $100,000, erred in
including kickbacks of less than $10,000. Each of those counts
charged a violation of 18 U.S.C. § 1957 and involved a check for
more than $10,000 that Jenkins caused Excaliber to issue to Data
Services and Supply (the entity Dyer established to launder the
kickbacks) in payment of a false invoice. Section 1957 is directed
at a person who "knowingly engages or attempts to engage in a
monetary transaction in criminally derived property that is of a
value greater than $10,000...." It is unclear whether section 1957
applies only to single transactions exceeding $10,000 or includes
a series of transactions that total more than $10,000. If the
former, the kickbacks that were less than $10,000 are not illegal,
and the court erred in considering them in calculating the amount
of the funds involved. When, as here, "a criminal statute is
ambiguous in its application to certain conduct, the rule of lenity
requires it to be construed narrowly." United States v. McLemore,
28 F.3d 1160, 1165 (11th Cir.1994). We therefore conclude that the
court erred in including in its calculation the transactions not in
excess of $10,000, and that the case must be remanded for
resentencing.
AFFIRMED, in part; VACATED, in part, and REMANDED.