U.S. v. Christo

Decision Date01 December 1997
Docket NumberNo. 96-2417,96-2417
Citation129 F.3d 578
Parties11 Fla. L. Weekly Fed. C 807 UNITED STATES of America, Plaintiff-Appellee, v. John CHRISTO, III, James W. Maulden, Defendants-Appellants.
CourtU.S. Court of Appeals — Eleventh Circuit

James H. White, Jr., Panama City, FL, James K. Jenkins, Maloy & Jenkins, Atlanta, GA, for Maulden.

Scott A. Srebnick, Miami, FL, for Christo.

P. Michael Patterson, U.S. Atty., David L. McGee and Paul Alan Sprowls, Asst. U.S. Attys., Tallahassee, FL, for Plaintiff-Appellee.

Appeal from the United States District Court for the Northern District of Florida.

Before EDMONDSON and DUBINA, Circuit Judges, and LIMBAUGH *, Senior District Judge.

PER CURIAM:

Defendant-Appellants John Christo III ("Christo") and James W. Maulden ("Maulden") appeal from jury convictions. Defendant Christo appeals his sentence for conspiracy, misapplication of bank funds, and bank fraud. Defendant Maulden appeals his sentence for conspiracy, misapplication of bank funds, bank fraud, and money laundering. We affirm in part, reverse in part, and vacate and remand in part.

Background

Christo was the president of Bay Bank, and a member of its board of directors. Codefendant Maulden was also a member of the board of directors of Bay Bank until 1989. Between 1986 and 1988, Maulden would occasionally write checks for which he had insufficient funds in his account (collectively "NSF check(s)"). In accordance with bank policy, the NSF checks were recorded as overdrafts; and Maulden paid interest on the amount of the check.

In 1988, Maulden entered into a scheme with Christo and Christo's father 1 so that when he submitted an NSF check, the bank would call his accountants, who then would write checks on Maulden's other accounts to cover the NSF check. Christo would personally intercede on a daily basis to ensure the procedure was followed. Many of the checks written to cover the NSF checks were drawn on accounts which also had insufficient funds. Because Maulden was not charged interest on these NSF checks, he received interest-free, unrecorded loans, without the prior approval of the board of directors.

Discussion 2
I. Defendant Maulden

Maulden claims insufficient evidence supported his conviction for money laundering under 18 U.S.C. § 1957 3 because no proof was presented of an independent criminal transaction separate from the underlying offenses. 4 He claims that, for a conviction to be sustained, the government must show that a defendant took the added step of engaging in a prohibited monetary transaction with proceeds that were "obtained" from a specific unlawful activity. The government basically contends that every check kiting scheme involves conduct that is punishable under the money laundering statutes.

A claim of insufficient evidence to sustain a conviction is reviewed de novo. United States v. Kramer, 73 F.3d 1067, 1070 (11th Cir.1996). "We, however, view the evidence in the light most favorable to the government, with all reasonable inferences and credibility choices made in the government's favor." United States v. Martinez, 83 F.3d 371, 374 (11th Cir.1996). We are required to affirm a conviction if "any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979).

Money laundering is an offense to be punished separately from an underlying criminal offense. United States v. Edgmon, 952 F.2d 1206, 1213 (10th Cir.1991) (finding that Congress intended money laundering and other specified unlawful activity to be distinct offenses punished separately). The main issue in a money laundering charge, therefore, is determining when the predicate crime becomes a "completed offense" after which money laundering can occur. United States v. Kennedy, 64 F.3d 1465, 1477-78 (10th Cir.1995).

Counts V, VI, and VII of the indictment charged Maulden with violations of 18 U.S.C. §§ 1957 and 2. Each count involved a separate withdrawal of funds to pay a check written to SouthTrust Bank from one of Maulden's business accounts at Bay Bank. Each check was a $25,000 monthly payment on Maulden's outstanding loan at SouthTrust. The indictment alleged that each withdrawal involved funds derived from misapplication of bank funds and bank fraud.

A bank fraud offense is not complete until there is an "execution" of the scheme to defraud. United States v. Lemons, 941 F.2d 309, 318 (5th Cir.1991); see also United States v. Sirang, 70 F.3d 588, 595-96 (11th Cir.1995). The execution is completed by the movement of money, funds, or other assets from the financial institution. United States v. Mancuso, 42 F.3d 836, 847 (4th Cir.1994); see also United States v. Lilly, 983 F.2d 300, 304-05 (1st Cir.1992). Likewise, misapplication of funds occurs when the defendant deprives the bank of its right to have custody of its funds. See United States v. Cauble, 706 F.2d 1322, 1354 (5th Cir.1983); see also United States v. Morales, 978 F.2d 650, 655 (11th Cir.1992) ("[M]isapplication of bank funds was complete when the checks were cashed.").

The government's proof of each count involved a similar series of transactions: (1) proof of withdrawal of $25,000 from Bay Bank for Maulden's monthly note payment to SouthTrust Bank; and (2) proof that each check was paid by Bay Bank on the basis of credit extended on uncollected funds through several of Maulden's Bay Bank accounts for a period of one to three days until good funds arrived from Maulden's main operating account in Mississippi.

Viewing the evidence in the light most favorable to the government, we conclude that these facts are insufficient to establish that Maulden engaged in a monetary transaction that was separate from and in addition to the underlying criminal activity. The check kite did not deprive the bank of anything, nor did Maulden unlawfully obtain something from the bank, until Bay Bank disgorged its funds by the payment of the check to SouthTrust Bank. Thus, the withdrawal of funds charged as money laundering was one and the same as the underlying criminal activity of bank fraud and misapplication of bank funds. We do not accept that money laundering is inherent in bank fraud or misapplication of funds. We do not understand Congress to have been so subtle when it enacted the money laundering statute.

The government relies on three cases: United States v. Savage, 67 F.3d 1435 (9th Cir.1995); United States v. Estacio, 64 F.3d 477 (9th Cir.1995); and United States v. Johnson, 971 F.2d 562 (10th Cir.1992). Each case supports our decision that the underlying criminal activity must be complete before money laundering can occur. In Savage, the defendant wired money (proceeds of wire and mail fraud--prior and separate criminal activities) from one bank account to another. 67 F.3d at 1441-42. The Johnson court held that a transfer of funds from investors to the defendant's account did not violate...

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