U.S. v. Nattier, s. 96-2380

• Decision Date: 03 October 1997
• Docket Number: Nos. 96-2380,96-2451,s. 96-2380
• Citation: 127 F.3d 655
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Eldon Gene NATTIER, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. James Franklin COLEY, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 655

127 F.3d 655

UNITED STATES of America, Plaintiff-Appellee, v. Eldon Gene NATTIER, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. James Franklin COLEY, Defendant-Appellant.

Nos. 96-2380, 96-2451.

United States Court of Appeals,

Eighth Circuit.

Submitted Jan. 13, 1997.

Decided Oct. 3, 1997.

Sam Poston, St. Louis, MO, argued, for appellant Nattier.

Allen I. Harris, St. Louis, MO, argued, for appellant Coley.

Rosemary Meyers, St. Louis, MO, argued (Edward L. Dowd, Jr., United States Attorney, on the brief), for appellee.

Before WOLLMAN and HANSEN, Circuit Judges, and MONTGOMERY, ¹ District Judge.

HANSEN, Circuit Judge.

Eldon Gene Nattier and James Franklin Coley were convicted by a jury on several counts of conspiracy, money laundering, and making false statements in violation of federal law. They appeal their convictions and sentences. We affirm.

I.

Count I of the 19-count indictment in this case charged Eldon Nattier, James Coley, and Nattier's son Jonathan Marc Nattier (Marc) with conspiracy (1) to embezzle funds from Mercantile Bank of St. Louis, in violation of 18 U.S.C. § 656 (1994), and (2) to launder the embezzled funds in violation of 18 U.S.C. § 1956(a)(1)(A)(i) and (a)(1)(B)(i) (1994). Count I listed 19 overt acts in furtherance of the conspiracy, including that the three men opened a new bank account in Cape Girardeau, Missouri, some distance from St. Louis, in the name of International Realty Investments, Inc. (IRI), which was a legitimate Missouri corporation with Eldon Nattier as the president, Coley as the chief operating officer, and Marc as the secretary/treasurer. The corporation was formed years before the conspiracy began and existed as a real estate investment company. Marc fraudulently caused Mercantile Bank (his employer) to issue to IRI checks totaling $479,341.19. This money did not belong to IRI but to another corporation having a name similar to IRI. The conspiracy count charged that the defendants deposited the embezzled checks into IRI's newly established bank account and caused IRI to purchase various parcels of real property in St. Louis with the embezzled funds.

Counts III through VI ² charged Nattier and Coley with making false statements to obtain food stamps. Count VII charged Nattier with making false statements to the Internal Revenue Service (IRS). The remainder of the indictment charged Nattier and Coley with specific counts of money laundering, in violation of 18 U.S.C. § 1956(a)(1)(A)(i) and (a)(1)(B)(i). These instances of money laundering included the same purchases of real property in St. Louis referenced as overt acts in count I, along with one property in Kentucky and one 1991 Ford Explorer--all purchased with checks drawn on IRI's newly established corporate account which contained the embezzled funds.

A jury convicted Nattier and Coley on all counts against them. The district court ³ grouped all of the counts for sentencing, with the money laundering counts being the most serious offenses. The district court imposed on Nattier a sentence of 78 months of imprisonment on the money laundering counts. Because the conspiracy and the false statement counts were limited by a statutory maximum penalty, the district court imposed separate concurrent sentences of 60 months of imprisonment for these offenses. Likewise, the district court sentenced Coley to 63 months of imprisonment on the money laundering counts and concurrent 60-month sentences on the conspiracy and the false statement counts.

Nattier and Coley appeal, challenging the denial of Nattier's motion to dismiss count I, the sufficiency of the evidence to sustain their money laundering convictions, the jury instructions, and the district court's calculation of their sentences. Additionally, Coley contends that the government coerced him into not presenting expert testimony concerning the effects of domestic violence.

II.

A. Motion to Dismiss

Nattier contends that the district court erred by denying his motion to dismiss count I of the indictment as duplicitous, arguing that count I charged two separate objects of the conspiracy. We review de novo the district court's denial of Nattier's motion to dismiss count I of the indictment. See United States v. Sykes, 73 F.3d 772, 773 (8th Cir.), cert. denied, --- U.S. ----, 116 S.Ct. 2503, 135 L.Ed.2d 194 (1996). Federal Rule of Criminal Procedure 8(a) provides that the government may charge two or more connected offenses in the same indictment, provided each is charged in a separate count. "Duplicity is the joining in a single count of two or more distinct and separate offenses." United States v. Street, 66 F.3d 969, 974 (8th Cir.1995) (internal quotations omitted). "The principal vice of a duplicitous indictment is that the jury may convict a defendant without unanimous agreement on the defendant's guilt with respect to a particular offense." United States v. Karam, 37 F.3d 1280, 1286 (8th Cir.1994), cert. denied, 513 U.S. 1156, 115 S.Ct. 1113, 130 L.Ed.2d 1077 (1995). The risk inherent in a duplicitous count, however, may be cured by a limiting instruction requiring the jury to unanimously find the defendant guilty of at least one distinct act. Id.

The jury instructions in this case acknowledged that count I of the indictment charged a conspiracy to commit two separate offenses--conspiracy (1) to embezzle funds and (2) to launder the unlawful proceeds of the embezzlement. The relevant instruction stated as follows:

It would be sufficient if the Government proves, beyond a reasonable doubt, a conspiracy to commit one of those offenses; but, in that event, in order to return a verdict of guilty, you must unanimously agree upon which of the two offenses was the subject of the conspiracy. If you cannot agree in that manner, you must find the defendants not guilty.

(Appellant Nattier's Adden., Jury Instr. No. 14.). "We assume, as we must, that the jury followed these instructions." Karam, 37 F.3d at 1286. We conclude that this limiting instruction was sufficient to cure the risk of a nonunanimous verdict on the conspiracy charge, and the district court did not err by denying Nattier's motion to dismiss count I.

B. Sufficiency of the Evidence

We next address the defendants' contention that the government presented insufficient evidence to sustain their convictions on the substantive counts of money laundering. When considering whether the evidence is sufficient to support a guilty verdict, "we view the evidence in the light most favorable to the government, giving the government the benefit of all reasonable inferences." United States v. Herron, 97 F.3d 234, 236 (8th Cir.1996), cert. denied, --- U.S. ----, 117 S.Ct. 998, 136 L.Ed.2d 877 (1997). We reverse only "if no reasonable jury could have found the defendant[s] guilty beyond a reasonable doubt." United States v. Taylor, 82 F.3d 200, 201 (8th Cir.1996) (internal quotations omitted).

Nattier and Coley argue that the general verdicts on the money laundering counts must be set aside because the government did not prove every element of each form of money laundering charged. Each money laundering count charged that the specified conduct violated two subsections--18 U.S.C. § 1956(a)(1)(A)(i) and 18 U.S.C. § 1956(a)(1)(B)(i). The two subsections, each requiring proof of three elements, share two common elements. Both subsections require the government to prove that the defendants (1) engaged in the specified transactions involving illegal proceeds and (2) knew that the funds were illegal proceeds. See United States v. Rounsavall, 115 F.3d 561, 565 (8th Cir.1997) (setting forth the requirements under 18 U.S.C. § 1956(a)(1)(B)(i)), cert. denied, --- U.S. ----, 118 S.Ct. 256, --- L.Ed.2d ---- (1997); United States v. Jenkins, 78 F.3d 1283, 1288 (8th Cir.1996) (setting forth the requirements under 18 U.S.C. § 1956(a)(1)(A)(i)). Nattier and Coley do not dispute that they engaged in the specified financial transactions and knew that the proceeds of unlawful activity were involved. Thus, the first two elements of each subsection are satisfied.

Nattier and Coley challenge only the government's proof on the final element of each subsection. The final element of subsection (a)(1)(A)(i) requires proof that the defendants intended to promote the carrying on of embezzlement, and the final element of subsection (a)(1)(B)(i) requires proof that the defendants knew that the transaction was designed to conceal the illegal proceeds. Because the general verdict on each money laundering count does not indicate which alternative the jury found in this case, we examine the sufficiency of the evidence under each subsection.

First, the defendants argue that the transactions specified in the indictment could not have furthered or promoted the carrying on of the embezzlement within the meaning of subsection (a)(1)(A)(i), because the embezzlement was complete by the time these transactions took place. We disagree. Nattier and Coley were engaged in an embezzling and money laundering scheme designed to promote the goals of and to reap a profit for IRI, their real estate investment company. The scheme was devised and carried out after the defendants discovered a similarity in name between IRI and one of Mercantile Bank's customers to whom dividends were owing but unclaimed. Due to this similarity in name between the two companies, IRI and its financial transactions were integral to the embezzlement scheme. While the unlawful act of embezzlement may have been complete at the time Marc obtained the checks for IRI, the funds could not benefit the overall criminal scheme until successfully deposited in IRI's bank account and made available for the real estate and other financial transactions specified in the indictment. All of the defendants' financial transactions after first depositing the embezzled checks in IRI's account furthered this scheme and contributed to the overall prosperity of the conspiracy...