U.S. v. Dimeck, 93-3075

• Decision Date: 17 May 1994
• Docket Number: No. 93-3075,93-3075
• Citation: 24 F.3d 1239
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Kevin J. DIMECK, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1239

24 F.3d 1239

62 USLW 2771

UNITED STATES of America, Plaintiff-Appellee, v. Kevin J. DIMECK, Defendant-Appellant.

No. 93-3075.

United States Court of Appeals, Tenth Circuit.

May 17, 1994.

Sarah Hunter of Richard M. Lustig, P.C., Birmingham, MI (Richard M. Lustig of Richard M. Lustig, P.C., on the briefs) for defendant/appellant.

Leon J. Patton, Asst. U.S. Atty., Kansas City, KS (Randall K. Rathbun, U.S. Atty., on the briefs) for plaintiff/appellee.

Before EBEL and KELLY, Circuit Judges, and COOK, District Judge. ^*

EBEL, Circuit Judge.

This case is before us on appeal from a jury verdict convicting Appellant, Kevin Dimeck ("Dimeck"), of conspiracy under 18 U.S.C. Sec. 371 to violate 18 U.S.C.1956(a)(1)(B)(i). Dimeck appeals the district court's denial of his Fed.R.Crim.P. 29(a) Motion for Judgment of Acquittal in which he asserted that the government failed to prove each element of conspiracy to launder money under Sec. 1956(a)(1)(B)(i). Dimeck asserts that the mere delivery of alleged drug-money by one courier to a second courier, who was to deliver the money to the seller of the drugs, does not constitute money laundering under Sec. 1956(a)(1)(B)(i). We agree. We also hold that the government has failed to prove that the effort to retrieve the money from the DEA, after it was confiscated from the government's informant acting as the second courier, was within the scope of the object of the initial conspiracy involving Dimeck. Accordingly, Dimeck is not responsible for that conduct. Therefore, we REVERSE the jury's verdict. ¹

I. BACKGROUND

Dimeck was charged, along with two other individuals, with conspiracy under 18 U.S.C. Sec. 371 to violate 18 U.S.C. Sec. 1956(a)(1)(B)(i) in connection with the delivery of drug proceeds. One of the individuals, Arnoldo Pruneda, entered a pretrial guilty plea. ² Dimeck was tried with codefendant Benjamin Salcido. ³ After a jury trial, Dimeck was convicted of engaging in a conspiracy, from January 6, 1992 through April 27, 1992, to conduct a financial transaction with the proceeds of a marijuana sale, knowing that the property involved in the transaction represented the proceeds from unlawful activity, and further knowing that the transaction was designed in whole or in part to conceal and disguise the nature, location, source, and ownership of the proceeds of the unlawful activity. The court sentenced Dimeck to forty-six months incarceration.

Dimeck asserts that the government failed to establish each element of a conspiracy to launder money under Sec. 1956(a)(1)(B)(i). ⁴ "In judging the sufficiency of the evidence, we are bound to view the proof presented in the light most favorable to the government to ascertain if there is sufficient substantial proof, direct and circumstantial, together with reasonable inferences to be drawn therefrom, from which a jury might find a defendant guilty beyond a reasonable doubt." United States v. Johnson, 971 F.2d 562, 565 (10th Cir.1992) (quoting United States v. Sullivan, 919 F.2d 1403, 1431 (10th Cir.1990)).

To sustain a conviction under Sec. 1956(a)(1)(B)(i), the government must plead and prove that a defendant:

(1) knew the property involved in a financial transaction represented the proceeds of some unlawful activity;

(2) conducted or attempted to conduct a financial transaction which involved the proceeds of unlawful activity; [and,]

(3) knew the transaction was designed in whole or in part to conceal or disguise the nature, location, source, ownership or control of the proceeds from the unlawful activity.

United States v. Levine, 970 F.2d 681, 686 (10th Cir.), cert. denied, --- U.S. ----, 113 S.Ct. 289, 121 L.Ed.2d 214 (1992). ⁵

Under its indictment, the government had to prove that Dimeck was part of a conspiracy to violate Sec. 1956(a)(1)(B)(i). To prove a conspiracy, the government must show by direct or circumstantial evidence (1) that two or more persons agreed to violate the law, (2) that Dimeck knew at least the essential objectives of the conspiracy, (3) that Dimeck knowingly and voluntarily became a part of it, and (4) that the alleged coconspirators were interdependent. United States v. Evans, 970 F.2d 663, 668 (10th Cir.1992), cert. denied, --- U.S. ----, 113 S.Ct. 1288, 122 L.Ed.2d 680 (1993). ⁶

The facts, in the light most favorable to the government, show that Pruneda was shipping marijuana into the Detroit area for distribution. In order to receive the proceeds from the Detroit sales, Pruneda asked Moore, a government informant, to go to Detroit to pick up a package containing $60,000 in proceeds from marijuana transactions and to deliver the money back to Pruneda in California. Apparently, Dimeck was to collect the Detroit funds and to deliver them to Moore in Detroit for delivery back to Pruneda in California. The transfer from Dimeck to Moore was to occur in a Detroit hotel room. ⁷ Dimeck was late with the delivery, which made Pruneda nervous because he had a deadline to deliver the money to his suppliers. Pruneda, referring to the $60,000 during telephone conversations, told Moore, "I owe that," and "[t]hese guys are kicking my ... doors down."

On January 10, 1992, several days later than Pruneda expected, Dimeck drove in his company van bearing a "Michigan Satellite Systems" logo to Moore's motel and delivered an unsealed, untaped box, also bearing the company logo, to Moore. The box contained approximately $60,000. Dimeck told Moore to put the money in his suitcase, but when Moore objected because he did not have enough room in his suitcase, Dimeck said that he could "take it out of [the box] or whatever you want.... [and] tape [the box] up so it's not open, okay."

Pruneda did not want Moore to fly to California with the money because he was afraid airport security would detect it. However, Pruneda's urgent need for the money to pay his suppliers led him to agree that Moore should fly. Rather than deliver the money to Pruneda, however, Moore gave the money to the DEA and told Pruneda that he had been stopped by the police and that they had seized the money. Pruneda told Moore that this had happened before. Pruneda and Moore then devised a way for Moore to lie about how he came to possess the money so that the DEA would return the money to Moore. ⁸

In early March 1992, Moore told Pruneda that the DEA would return the money to Moore in the form of a check. Pruneda initially said he would pick up the money, and then later arranged for Salcido to pick up the money after Moore cashed the check. Salcido wanted the money in large bills so that it would be less detectable when he went through the airport security checkpoints. Salcido was arrested when Moore delivered the money to him. ⁹

II. MONEY LAUNDERING

Dimeck argues that his money laundering conviction should be overturned because the evidence was insufficient to establish that he entered into an agreement to conduct a financial transaction with the intent to conceal the nature, source, location, or ownership of the proceeds of illegal activity. He specifically challenges the district court's holding that "merely transporting cash" is a "transaction" prohibited by the money laundering statute, United States v. Dimeck, 815 F.Supp. 1425, 1432 (D.Kan.1993), and the court's finding that he was part of the later conspiracy in which Pruneda and Moore devised a scheme to retrieve the money from the DEA.

The district court found that the government presented sufficient evidence from which a jury could reasonably infer that "[t]he very nature of the agreement between Pruneda and [Dimeck]--an agreement to conduct a transaction by transporting, or causing to be transported, a large amount of cash (which was proceeds from illegal activities) from Detroit to California--revealed a common design to conceal the source, nature, or ownership of the money being transported," in violation of Sec. 1956(a)(1)(B)(i). Id. at 1431. The court found that the concealment was evidenced by "Dimeck's actions in telling Moore to tape up the box and inquiring of Pruneda about any markings on the box that would tie the money to him after it was seized by police." Id. at 1433. The court also found that Pruneda, Salcido, and Dimeck were engaged in a single conspiracy, and that it was reasonably foreseeable that within that conspiracy "the money could be confiscated during a routine traffic stop and that Pruneda would advise Moore about how to get it back." Id. at 1433, n. 10.

Assuming, without deciding, that the evidence was sufficient for a reasonable jury to conclude that: (a) Dimeck delivered the box of money to Moore's hotel room; (b) Dimeck told Moore to tape up the box or in some other way not to transport the money in plain view; (c) the money represented proceeds of specified illegal activity as defined in 18 U.S.C. Sec. 1956; (d) the money was enroute to Pruneda; (e) Pruneda owed the money and planned to use the money to pay his suppliers; (f) Dimeck, Pruneda, and Moore were part of a conspiracy to effect the transport of the money from Detroit to California; and (g) Pruneda and Moore devised a scheme to lie to the DEA and police to retrieve the money, we must decide: 1) whether the transportation and delivery of illegal proceeds by couriers to the seller of the drugs constitute money laundering under Sec. 1956(a)(1)(B)(i), and 2) whether the scheme in which Pruneda and Moore attempted to retrieve the illegal proceeds from the DEA constituted an act in furtherance of the object of the initial conspiracy to transport the illegal proceeds to Pruneda. ¹⁰ If we decide that efforts to retrieve the illegal proceeds were not within the scope of the initial conspiracy to transport the illegal proceeds, then we must decide whether there was sufficient evidence for a reasonable jury to conclude that Dimeck was a member of a second conspiracy.

This inquiry causes us first to examine the scope of Sec. 1956(a)(1)(B)(i) insofar as it applies to courier delivery of...