U.S. v. Francis

• Decision Date: 25 February 1999
• Docket Number: Nos. 97-1129,97-1130,s. 97-1129
• Citation: 170 F.3d 546
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Lewis FRANCIS (97-1129) and Louay Francis (97-1130), Defendants-Appellants.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 546

170 F.3d 546

UNITED STATES of America, Plaintiff-Appellee, v. Lewis FRANCIS (97-1129) and Louay Francis (97-1130) Defendants-Appellants.

Nos. 97-1129, 97-1130.

United States Court of Appeals Sixth Circuit.

Argued and Submitted April 20, 1998.

Decided Feb. 25, 1999.

Patricia G. Blake (briefed), Margaret E. Davis (argued), Office of the U.S. Attorney, Detroit, MI, for Plaintiff-Appellee.

Mark J. Kriger (argued and briefed), Detroit, MI, for Defendant-Appellant in No. 97-1129.

John L. Belanger (briefed), Sterling Heights, MI, Arthur Jay Weiss, Farmington Hills, MI, for Defendant-Appellant in No. 97-1130.

Before: MARTIN, Chief Judge; SUHRHEINRICH and SILER, Circuit Judges.

BOYCE F. MARTIN, JR., Chief Judge.

Defendants-Appellants Lewis Francis and Louay Francis, a father and son, appeal their jury convictions and sentences and the denial of their motion for a new trial. Specifically, they argue that the prosecutor engaged in improper vouching and made other inappropriate comments, that there was insufficient evidence to support several of the convictions, that the district court's jury instructions were in error, and that the district court erred in calculating their respective sentences. Although no single comment or set of comments by the prosecutor requires a new trial, the statements do, when taken as a whole, constitute reversible error. ¹ We therefore REVERSE Defendants' convictions and REMAND the case for a new trial.

Lewis Francis began his banking career at the Ottoman Bank in Basrah, Iraq, where he worked for approximately fifteen years. In 1968, he and his family left Iraq for Kuwait, and Lewis began working for the Gulf Bank of Kuwait. By 1985, however, the family had emigrated to the United States and Lewis had established an international banking accounts department at the New York office of the Gulf Bank of Kuwait. When the office closed, Lewis moved to Michigan where the rest of his family resided.

In the early 1980s, Lewis Francis met Larry Walker, a drug dealer in Michigan. In late 1983, Mr. Walker gave Lewis $100,000 in small denominations to open an account at the Gulf Bank of Kuwait. Mr. Walker testified that he had informed Lewis that he did not want the government to be able to trace the money, and that Lewis told him "not to worry about it because it was an offshore bank and the money was going to Kuwait; they would never be able to trace it, they being the government."

In the mid-1980s, Mr. Walker introduced Lewis to Lincoln and Lancelot Williams, brothers who ran a large drug operation and supplied Mr. Walker with the drugs he then sold. Lincoln Williams testified that he and his brother wanted to open an overseas account at a Kuwaiti bank "to hide the money ... from the government ... because [it] was drugs money." Lewis opened an account for the Williams brothers, eventually depositing over $800,000. The money was generally brought in cash in small denominations to Lewis, who then wired the money to Kuwait.

In the late 1980s, the Williams brothers, Mr. Walker, and another colleague brought between $250,000 and $400,000 in small denominations to Lewis in New York City. They instructed him to wire the money to a European bank so that they could withdraw it there and then wire it to Zaire. However, they needed Lewis to assist them because the money was obtained from illegal drug sales. Lewis again agreed to help.

In 1991, around the time of the Gulf War, Lincoln Williams became concerned about the money he had deposited in the Gulf Bank of Kuwait. He met with Lewis to discuss these concerns on three or four occasions. Most of these meetings were arranged by Lewis's son, Louay Francis, who was also present for several of them.

In 1993, Mr. Walker was arrested in Florida on an unrelated drug charge. He decided to cooperate with the United States and contacted DEA Special Agent Michael Blackwood. Mr. Walker met with Agent Blackwood and told him about the Williams brothers' drug ring and the manner in which Lewis laundered money for the operation. Agent Blackwood decided to have Mr. Walker arrange a transaction between Lewis and undercover DEA Agent Ken Adams, who would be known as Keith Black.

Mr. Walker made an initial phone call to Lewis on January 31, 1994, indicating that he wanted to meet with him. Because Lewis was feeling ill, he asked Mr. Walker to contact Louay instead, saying, "Louay ... he's authorized for everything ...." Mr. Walker then contacted Louay and spoke with him about the overseas accounts as well as his concerns as to whether the money was traceable. Although Louay was unable to answer every question posed by Mr. Walker, the transcripts of that taped conversation do indicate that he was quite knowledgeable about the operation.

On February 17 and 18, Mr. Walker and Louay held further conversations which were also recorded. They discussed the government's ability to trace the money in Mr. Walker's foreign account, and Mr. Walker told Louay that he needed to move approximately $700,000 to such an account. They discussed the possible transaction in considerable detail, and Louay arranged for Mr. Walker to meet with his father to discuss it further.

On March 2, Mr. Walker and Agent Adams met with Lewis, who agreed to launder approximately $3,000,000 to $3,700,000 for Agent Adams in $100,000 increments. On April 20, Mr. Walker and Agent Adams delivered the first $100,000 in cash to Lewis, who eventually deposited $90,000 into an account at Barclay's Bank in London. The deposit represented the money delivered to Lewis less his ten percent commission.

On February 8, 1995, as a result of this and other transactions, a grand jury indicted Lewis Francis and Louay Francis on a series of charges involving money laundering and sought criminal forfeiture. In a superseding indictment filed June 15, additional co-defendants were included, as were additional charges. A second superseding indictment was filed November 11, adding several new charges against Lewis Francis.

After a two week trial, a jury convicted Lewis Francis of one count of conspiracy to possess with the intent to distribute and to distribute controlled substances in violation of 21 U.S.C §§ 841(a)(1) and 846; one count of conspiracy to launder monetary instruments in violation of 18 U.S.C. §§ 1956(a)(1)(B)(i) and 371; one count of conspiracy to launder monetary instruments in violation of 18 U.S.C. § 1956(a)(3)(B) and (h); one count of laundering monetary instruments in violation of 18 U.S.C. § 1956(a)(3)(B); one count of conspiracy to defraud the United States by impeding and impairing the Internal Revenue Service in violation of 18 U.S.C. § 371; and two counts of criminal forfeiture in violation of 18 U.S.C. § 982. The jury convicted Louay Francis of one count of conspiracy to launder monetary instruments in violation of 18 U.S.C. § 1956(a)(3)(B) and (h), and one count of criminal forfeiture in violation of 18 U.S.C. § 982.

The district court sentenced Lewis and Louay Francis on November 13, 1996. They filed a motion for a new trial which was denied on January 17, 1997. Lewis Francis filed a timely notice of appeal on January 24; Louay Francis filed his on May 19. As always, we review the denial of a motion for a new trial for an abuse of discretion. Anchor v. O'Toole, 94 F.3d 1014, 1021 (6th Cir.1996).

On appeal, Lewis Francis and Louay Francis each raise a series of claims in which they assert that the prosecutor engaged in improper vouching and bolstering, and made inappropriate comments about Lewis's credibility. Whether the various statements amount to prosecutorial misconduct and whether they rendered the trial fundamentally unfair are mixed questions of law and fact and are therefore reviewed de novo. United States v. Clark, 982 F.2d 965, 968 (6th Cir.1993).

When reviewing claims of prosecutorial misconduct, we determine first whether the statements were improper. See United States v. Krebs, 788 F.2d 1166, 1177 (6th Cir.1986). If they appear improper, we then look to see if they were flagrant and warrant reversal. See United States v. Carroll, 26 F.3d 1380, 1388 (6th Cir.1994). To determine flagrancy, the standard set by this Court is: 1) whether the statements tended to mislead the jury or prejudice the defendant; 2) whether the statements were isolated or among a series of improper statements; 3) whether the statements were deliberately or accidentally before the jury; and 4) the total strength of the evidence against the accused. United States v. Monus, 128 F.3d 376, 394 (6th Cir.1997) (citing United States v. Cobleigh, 75 F.3d 242, 247 (6th Cir.1996)); Carroll, 26 F.3d at 1385 (citing United States v. Leon, 534 F.2d 667, 679 (6th Cir.1976)). To reverse a conviction because of an improper non-flagrant statement, a reviewing court must determine that: 1) the proof of the defendant's guilt is not overwhelming; 2) the defense counsel objected; and 3) the trial court failed to cure the impropriety by failing to admonish the jury. Monus, 128 F.3d at 394; Carroll, 26 F.3d at 1385-86 (citing United States v. Bess, 593 F.2d 749, 757 (6th Cir.1979)).

The Defendants' first contention pertaining to misconduct is that the prosecutor improperly vouched for government witnesses. Improper vouching occurs when a prosecutor supports the credibility of a witness by indicating a personal belief in the witness's credibility thereby placing the prestige of the office of the United States Attorney behind that witness. See, e.g., Taylor v. United States, 985 F.2d 844, 846 (6th Cir.1993); United States v. Martinez, 981 F.2d 867, 871 (6th Cir.1992). Generally, improper vouching involves either blunt comments, see, e.g., United States v. Kerr, 981 F.2d 1050, 1053 (9th Cir.1992) (stating that improper vouching occurred when prosecutor asserted own belief in witness's credibility through comments including "I think he [the witness] was candid. I think he is honest."), or comments that imply that...