U.S. v. Finkelstein, Docket No. 99-1565

Citation229 F.3d 90
Decision Date01 August 1999
Docket NumberDocket No. 99-1565
Parties(2nd Cir. 2000) UNITED STATES OF AMERICA, Appellee, v. ALAN FINKELSTEIN, Defendant-Appellant
CourtUnited States Courts of Appeals. United States Court of Appeals (2nd Circuit)

Appeal from a judgment of the United States District Court for the Southern District of New York, Deborah A. Batts, Judge, convicting defendant of money-laundering offenses, 18 U.S.C. §§1956, 371, and enhancing his sentence pursuant to Sentencing Guidelines §2S1.1(b)(1) on the ground that he consciously avoided knowing that funds he laundered were proceeds of unlawful narcotics-related activity.

Affirmed.

ROBIN W. MOREY, Assistant United States Attorney, New York, New York (Mary Jo White, United States Attorney for the Southern District of New York, Baruch Weiss, Assistant United States Attorney, New York, New York, on the brief), for Appellee.

JOHN L. POLLOK, New York, New York (William A. Rome, Hoffman, Pollok &amp Pickholz, New York, New York, on the brief), for Defendant-Appellant.

Before: NEWMAN, KEARSE, and KATZMANN, Circuit Judges.

KEARSE, Circuit Judge:

Defendant Alan Finkelstein appeals from a judgment entered in the United States District Court for the Southern District of New York following his plea of guilty before Deborah A. Batts, Judge, convicting him of money laundering, in violation of 18 U.S.C. §1956 (1994), and conspiracy to launder money, in violation of 18 U.S.C. §371 (1994). Finkelstein was sentenced principally to 36 months' imprisonment, to be followed by a three-year term of supervised release; pursuant to 18 U.S.C. §982 (1994), he was also ordered to forfeit $300,000. On appeal, he challenges the length of his imprisonment, contending principally that the district court improperly used a conscious-avoidance theory to enhance his sentence pursuant to Sentencing Guidelines ("Guidelines") §2S1.1(b)(1) for conspiring to launder money known to be proceeds of unlawful narcotics-related activity. For the reasons that follow, we reject Finkelstein's contentions and affirm.

I. BACKGROUND

Section 1956 prohibits any person from, inter alia, conducting a financial transaction involving property that "represents the proceeds of some form of unlawful activity," knowing that the transaction is designed to conceal or disguise the source or ownership of such property. 18 U.S.C. §1956(a)(1). The present prosecution arises out of the government's investigation of Finkelstein, sole owner and operator of Gold Standard Trading Corporation ("Gold Standard"), a business in the New York City diamond and jewelry district, and his coconspirators Ahron Sharir, Luis Roges, and Barry Slomovits, each of whom also owned and operated jewelry and precious metals businesses. Count one of the information to which Finkelstein pleaded guilty alleged that during a nine-year period beginning in 1982, Finkelstein's coconspirators received at their respective places of business a total of at least half a billion dollars that were the proceeds of narcotics trafficking; that the coconspirators laundered those proceeds through Finkelstein and others; and that Finkelstein himself, through Gold Standard, laundered more than $20 million that were proceeds of illegal narcotics activity. Count two of the information charged that Finkelstein also laundered nearly $1.7 million that were proceeds of unlawful gambling and bookmaking activities.

A. Finkelstein's Plea of Guilty

Pursuant to a cooperation agreement with the government, Finkelstein agreed to plead guilty to laundering and conspiring to launder moneys while knowing that the moneys were "proceeds from some form" of criminal activity, "though not necessarily which form." (Plea Agreement dated December 12, 1994, at 1.) Accordingly, at his plea hearing, Finkelstein stated as follows:

From 1986 to 1991, I conspired with Barry Schlomovitz [sic] and others engaged in financial transactions that permitted others to disguise the source and the ownership of their proceeds from illegal activities. By 1989 I became aware that the funds were generated by criminal activity but despite such knowledge I continued to engage in financial activities that permitted the ownership and source of the funds to be disguised. I knew that it was both wrong and illegal to engage in such activity since I knew that the funds involved were from some form of criminal activity that constituted a felony under the state or federal law. At some point I did learn that some of the funds included proceeds of illegal gambling. I performed such activity while operating a legitimate business enterprise in Manhattan where these activities took place. The amount laundered exceeded $20,000,000.

(Hearing Transcript, January 9, 1995 ("Tr."), at 13 14.)

At the plea hearing, the Assistant United States Attorney ("AUSA") gave a general description of the evidence that the government could present if there were a trial. The government would show that Slomovits and Finkelstein's other coconspirators, at their places of business, received cash from Colombian couriers. Finkelstein participated in the conspiracy "from approximately 1986 to in or about November 1991." (Tr. 14.) In some instances, Finkelstein would take possession of the cash and would then return a check in a lesser amount (the difference representing Finkelstein's laundering commission) drawn on Gold Standard's account. In other instances, his coconspirators would use the to-be-laundered cash to purchase gold from Finkelstein at artificially inflated prices; Finkelstein would then repurchase the gold from them at lower prices, again making payment with his company's checks.

In response to questioning by the district court, Finkelstein stated that he agreed with the government's description of his money-laundering activities. However, while conceding that he knew the funds he laundered were proceeds of unlawful activity, he maintained that he "didn't know it was from narcotics." (Tr. 16.)

B. The PSR Recommendations and the Sentence

The presentence report ("PSR"), prepared on Finkelstein in 1999, following a period of his cooperation with the government in investigating others, noted that under Guidelines §2S1.1(a)(2) (1998), Finkelstein's base offense level would be 20, from which §2S1.1(b)(2)(K) required a 10 step increase because the value of the funds laundered by Finkelstein in the present offenses was more than $20 million and less than $35 million. In addition, the PSR recommended a three-step increase pursuant to Guidelines §2S1.1(b)(1), which provides that the offense level of a defendant convicted of money laundering is to be increased by three steps "[i]f the defendant knew or believed that the funds were the proceeds of an unlawful activity involving the manufacture, importation, or distribution of narcotics or other controlled substances." Guidelines §2S1.1(b)(1) (1998). The PSR stated that, "[b]ased on the fact that 1) Sharir, Roges, and Slomovits were aware that the funds were the proceeds of unlawful activities involving narcotics, and2) the significant amount of monies that were laundered, we believe that Finkelstein knew or believed that the funds were proceeds of unlawful activities involving narcotics." (PSR ¶77.) Recommending a downward adjustment in offense level on the basis that Finkelstein had adequately accepted responsibility for his offense, the PSR concluded that Finkelstein's total offense level was 30.

Finkelstein objected to the PSR, arguing, inter alia, that it failed to recommend an offense-level decrease on the basis that he played a minor role in the offense (see Part II.C. below), and that it erred in recommending a §2S1.1(b)(1) enhancement for knowing that he was laundering narcotics proceeds. With respect to the proposed §2S1.1(b)(1) increase, Finkelstein argued preliminarily that the "or believed" language should not be applied to him because it had not become part of that guideline until November 1, 1991, which he asserted was after his offense conduct had ended. As to the merits of the proposed increase, Finkelstein contended that a §2S1.1(b)(1) enhancement would be appropriate only if the evidence showed he had actual knowledge of the narcotics provenance of the money, and that there was no evidence that he had such knowledge. He maintained that he "was never told by anyone that the gold he was purchasing was proceeds from narcotics transactions." (Letter from Finkelstein's then-attorney Carl D. Bernstein to Probation Office dated June 22, 1999, at 2.)

In response to Finkelstein's objections, the Probation Department added an Addendum to the PSR. With respect to the §2S1.1(b)(1) increase, the Addendum stated that

the Probation Department believes that conscious avoidance is proper knowledge to illustrate that Finkelstein was aware that the proceeds he laundered were from illegal narcotics activities,

(PSR at 28), and that the issue was not whether Finkelstein believed the funds came from drug sales but whether knowledge should be imputed to him because of his willful blindness to circumstances that made it apparent that the funds he laundered came from drug sales. As evidence of Finkelstein's willful blindness, the Addendum stated that

during an interview with a U.S. Customs agent, Finkelstein told the agent that he, "eventually suspected that the source of the cash was narcotics, because 'people were being arrested right and left.' Although he was never told directly that the cash came from narcotics, he said 'you would have to be stupid' not to suspect that his [sic] was the source of the money."

(Id.) Accordingly, the Probation Department adhered to the original PSR recommendation of a three-step increase pursuant to §2S1.1(b)(1).

Finkelstein objected to the conclusion drawn in the PSR Addendum and stated in part as follows:

Your reliance on "an interview with a U.S. Customs agent" which mostly paraphrases statements attributed to Mr....

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