U.S. v. Seher

• Decision Date: 26 March 2009
• Docket Number: No. 07-13935.,No. 07-15919.,No. 07-14055.,07-13935.,07-14055.,07-15919.
• Citation: 562 F.3d 1344
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Toros SEHER, a.k.a. Torrez, Chaplin's, Inc., Chaplin's Midtown, Inc., Defendants-Appellants. United States of America, Plaintiff-Appellee, v. Chaplin's, Inc., Chaplin's Midtown, Inc., Defendants-Appellants. United States of America, Plaintiff-Appellee, v. Toros Seher, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

562 F.3d 1344

UNITED STATES of America, Plaintiff-Appellee, v. Toros SEHER, a.k.a. Torrez, Chaplin's, Inc., Chaplin's Midtown, Inc., Defendants-Appellants.

United States of America, Plaintiff-Appellee, v. Chaplin's, Inc., Chaplin's Midtown, Inc., Defendants-Appellants.

United States of America, Plaintiff-Appellee, v. Toros Seher, Defendant-Appellant.

No. 07-13935.

No. 07-14055.

No. 07-15919.

United States Court of Appeals, Eleventh Circuit.

March 26, 2009.

Wilmer Parker, III, Agne A. Krutules, Maloy & Jenkins, Atlanta, GA, for Defendants-Appellants.

Jenny R. Turner, Evan Weitz, John Andrew Horn, U.S. Atty., Atlanta, GA, for U.S.

Appeals from the United States District Court for the Northern District of Georgia.

Before BIRCH and PRYOR, Circuit Judges, and STROM,^* District Judge.

BIRCH, Circuit Judge:

Toros Seher, Chaplin's, Inc. ("Chaplin's"), and Chaplin's Midtown, Inc. ("Midtown") (collectively "the Appellants") appeal their convictions and sentences for various offenses related to money laundering and federal transaction reporting requirements. After a jury trial, the Appellants were found guilty of money laundering, in violation of 18 U.S.C. § 1956(a)(3)(B)-(C), and of failure to file Form 8300 for various transactions, in violation of 31 U.S.C. § 5324(b)(1), (d)(2). Seher also was found guilty of conspiracy to launder money, in violation of 18 U.S.C. § 1956(h). The district court denied the Appellants' motion for judgment of acquittal and new trial and issued a preliminary order of forfeiture against them. After reviewing the record and the parties' briefs and hearing oral argument, we AFFIRM the Appellants' convictions and sentences. Because the district court both failed to address factual and legal issues regarding portions of the forfeiture order and made clearly erroneous factual findings, we AFFIRM in part and VACATE and REMAND in part the forfeiture order.

I. BACKGROUND

A. Factual Background

1. Events at the Gold & Diamond Depot

The initial events relevant to this appeal took place between 1996 and 2002, when Seher was working at the Gold & Diamond Depot, Inc. ("the Depot"), a jewelry store located in Greenbriar Mall in Atlanta, Georgia. At trial, the government put forward as witnesses four drug dealers who purchased jewelry from Seher at the Depot during this time period—Garrette Ragland, Walter Dean Johnson ("Johnson"), Delano McDowell, and Clifton James Manning. At the time they made their purchases, all of these witnesses trafficked exclusively in cocaine, with the exception of Manning, who also sold marijuana.

The witnesses' accounts of their interactions with Seher share many elements of commonality. They always made their purchases in cash, which came from drug proceeds and often had been separated into bundles rubber-banded in thousand-dollar increments.¹ They all stated, however that they never explicitly discussed drugs with Seher nor told him that their cash came from drug sales, though Johnson expressed the belief that Seher was aware of the origin of the funds.² For larger purchases, after the purchaser had chosen a particular piece of jewelry, Seher would usher him through a swinging door into a back room behind the main counter to complete the sale.³ The buyer would then have a seat next to a desk, Seher would open up a drawer in that desk, and the buyer would place his cash inside the drawer. On some occasions, Seher had the buyer place the cash in a safe inside the back room instead. Seher typically would not count the money at that time. The witnesses further testified that Seher never asked them to fill out the forms required for cash purchases of more than $10,000 nor requested that they provide the identifying information needed to complete such forms.⁴ Ragland, Johnson, and Manning were aware of this reporting requirement, and all four indicated that they would have been reluctant to provide such information for fear of creating a paper trail and might not have shopped at the Depot if they had been forced to do so.

Ragland estimated that he bought more than $200,000 worth of jewelry from Seher between 1996 and 2000, with fifteen to twenty of these purchases totaling more than $10,000. He stated that some of his fellow drug dealers who had purchased jewelry from Seher first introduced him to Seher. Ragland also described how Seher had assisted him after he was arrested for cocaine distribution. He called Seher after receiving a post-arrest forfeiture order on a watch Seher had sold him. According to Ragland, Seher indicated that he already was aware of Ragland's arrest and that he would handle the situation. In a later phone call, Seher apparently stated that he had obtained the forfeited jewelry and that he would try to sell it for Ragland, though Ragland had no further communications with Seher thereafter.⁵

Johnson testified that he had purchased approximately $90,000 to $100,000 worth of jewelry from Seher between 1997 and February 2002, when he was arrested for conspiracy to distribute cocaine. Though no one introduced Johnson to Seher, Johnson recommended Seher to multiple drug dealers and specifically instructed them to tell Seher that he had referred them. After Johnson was arrested, he telephoned Seher and requested his assistance in selling a watch Johnson previously had purchased from Seher. According to Johnson, Seher agreed to help and eventually gave him approximately $6000 in exchange for the watch—a description confirmed by Johnson's sister.

McDowell testified that his jewelry purchases from Seher totaled over $100,000, with four or five of those in excess of $10,000. Johnson apparently first introduced McDowell to Seher, and McDowell likewise brought drug dealers whom he knew to Seher. McDowell also stated that Seher expressed a willingness to buy back jewelry from McDowell if the latter ever fell upon hard times. McDowell made his last purchase from Seher, a bracelet for his wife costing about $8500, around December 2001. At the time McDowell was arrested in March 2002, however, he had paid only $6000 of this price, so Seher took the bracelet back and sold it to someone else.

Manning testified that he was first introduced to Seher by Paul Rosser, a fellow drug dealer who also made purchases from Seher. During this initial visit, Manning bought a bracelet for $8000. Seher explicitly refused to provide a receipt for the purchase, instead deeming a handshake sufficient. On other occasions, Manning purchased at least ten items from Seher costing more than $10,000, including one shopping spree when he spent almost $200,000. He also stated that Seher obtained over $800,000 worth of diamonds for Manning to give to his drug supplier, for which Manning paid Seher in cash.

Manning also described the circumstances surrounding his 1999 arrest. The police, in the course of responding to a fire at his house, discovered about twenty kilograms of cocaine in his dryer and arrested Manning. After Manning was released on bond, Seher called his cell phone and stated that he had heard what had happened, though he did not explain to Manning how he became aware of the arrest. A few days later, Manning went by the Depot and Seher gave him some of the jewelry which Manning had lost during the fire, but Seher would not say how he had obtained it.

2. Events at Chaplin's and Midtown

The second series of events relevant to this appeal occurred at two other jewelry stores in Atlanta, Chaplin's and Midtown. Chaplin's and Midtown were incorporated separately, but shared common elements. The two companies had related owners— Seher co-owned Midtown and his brother Parseg owned Chaplin's.⁶ Seher had official positions at both—Vice President, Chief Financial Officer, and Secretary at Midtown and Secretary at Chaplin's. Chaplin's also made most of the jewelry for Midtown, and workers at Midtown would fill in for absent employees at Chaplin's.

During 2005 and 2006, IRS Special Agent James Perkins met with Seher on multiple occasions at both Chaplin's and Midtown. Perkins bought several expensive pieces of jewelry from Seher under the pretense of being a narcotics trafficker. Perkins testified that Seher acted strangely when they negotiated prices. For instance, Seher repeatedly would stop speaking whenever the situation called for him to quote a particular price and instead would write the amount down on some paper, which he would immediately rip into shreds. The prices that Seher would write down also were not the actual prices but instead had a zero removed, such as $2200 instead of $22,000, so that the figures never exceeded $10,000. A similar practice occurred whenever Seher would state the price orally.

Perkins first met Seher on 28 April 2005, when he entered Chaplin's with Kim Hubbard, the wife of a major Atlanta drug dealer. The previous day, Ms. Hubbard had called Chaplin's to arrange a meeting with Seher. Perkins' goal was to purchase a set of wedding rings for more than $10,000 cash without having to complete any governmental forms. Upon entering Chaplin's, Perkins and Ms. Hubbard unexpectedly encountered a friend of Ms. Hubbard's who attempted to assist them with the purchase. Soon afterward, Seher began to help all three of them. Perkins intimated to Seher that he was involved in an illegal business, noted that Seher "pretty much know the realm that we in," and discussed "peeping the game," a reference to the drug business. Gov. Exh. 5 at 36, 40. After Perkins selected a ring, Seher proposed that Perkins pay for it by having Perkins, Ms. Hubbard, and her friend come in separately and each pay part of the price—a plan that Perkins understood would avoid federal filing requirements. Eventually, Perkins agreed to return with the appropriate amount of cash, after which Seher would begin working on the jewelry.

When Perkins and Ms. Hubbard returned to Chaplin's on 21 July 2005, Seher was unable to find the rings they had selected, so they chose new ones....