574 F.3d 106 (2nd Cir. 2009), 07-4370-cr, United States v. Bah

Docket Nº:07-4370-cr.
Citation:574 F.3d 106
Opinion Judge:DENNIS JACOBS, Chief Judge.
Party Name:UNITED STATES of America, Appellee, v. Boubacar BAH, Defendant-Appellant.
Attorney:Michael A. Young, New York, NY, for Defendant-Appellant. Anirudh Bansal, Assistant United States Attorney (Christopher LaVigne and Kevin R. Puvalowski, Assistant United States Attorneys, on the brief), for Michael J. Garcia, United States Attorney for the Southern District of New York, New York, ...
Judge Panel:Before: JACOBS, Chief Judge, WALKER and CALABRESI, Circuit Judges.
Case Date:July 31, 2009
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
 
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574 F.3d 106 (2nd Cir. 2009)

UNITED STATES of America, Appellee,

v.

Boubacar BAH, Defendant-Appellant.

No. 07-4370-cr.

United States Court of Appeals, Second Circuit.

July 31, 2009

Argued: Nov. 25, 2008.

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Michael A. Young, New York, NY, for Defendant-Appellant.

Anirudh Bansal, Assistant United States Attorney (Christopher LaVigne and Kevin R. Puvalowski, Assistant United States Attorneys, on the brief), for Michael J. Garcia, United States Attorney for the Southern District of New York, New York, NY, for Appellee.

Before: JACOBS, Chief Judge, WALKER and CALABRESI, Circuit Judges.

DENNIS JACOBS, Chief Judge.

Defendant-Appellant Boubacar Bah appeals from a judgment of conviction, entered October 5, 2007 after a jury trial in the United States District Court for the Southern District of New York (Kaplan, J.), on one count of operating an unlicensed money transmitting business in New York in violation of 18 U.S.C. § 1960.

There is no doubt that Bah received money in New York for transmittal abroad; Bah tried to defend on the ground that the money he received in New York was transmitted from New Jersey, and that he was licensed to operate a money transmitting business in that state. The district court precluded Bah in limine from offering evidence of the New Jersey license, reasoning that the federal statute

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prohibited operating a money-transmitting business that is unlicensed under state law, and that Section 1960 thus incorporates into federal law the provision in New York Banking Law § 650 that prohibits (inter alia) engaging without a license in the businesses of transmitting money or receiving money for transmission. The court therefore determined that Bah could be convicted under Section 1960 if he engaged in New York in the business of receiving money for transmission without a license, regardless of whether he transmitted the money pursuant to a valid license in New Jersey. The district court gave a jury instruction to that effect at the conclusion of trial.

Bah argues that the district court erred in: [i] refusing to give his requested charge on the scope of Section 1960; [ii] precluding him from offering evidence of his New Jersey license; [iii] permitting the government to cross-examine a character witness concerning a five-year-old customer complaint; and [iv] denying him Criminal Justice Act funding to call thirteen witnesses from overseas.

We hold that the district court erred in concluding that Section 1960 incorporates into federal law the feature of New York Banking Law § 650 that prohibits engaging in the business of receiving money for transmission without a license. This error tainted the district court's jury charge and the presentation of evidence and argument at trial.

We cannot determine from the record whether Bah was convicted for operating an unlicensed money transmitting business, which is prohibited by federal law, or for engaging (without a license) in the business of receiving money for transmission, which is prohibited by New York law, but not federal law. Although the government adduced evidence that Bah (who had several legitimate businesses) had transmitted money abroad from a Banco Popular branch in the Bronx, it is not clear beyond a reasonable doubt that a properly instructed jury would have found that the transmittals from New York were part of a money transmitting business, as opposed to one of Bah's various other enterprises. We therefore vacate Bah's conviction and remand for a new trial. We go on to consider Bah's remaining claims in anticipation of a potential retrial, and find them to be without merit.

BACKGROUND

In 2003, Drug Enforcement Administration agents learned that heroin traffickers in the Bronx had used a company named B & S Bah Enterprises to transmit suspected drug proceeds. Agents discovered that B & S Bah Enterprises was operated by Bah from an office in a restaurant he owned at 1715 Webster Avenue in the Bronx, New York. When agents arrested Bah on April 21, 2006, he consented to a search of his restaurant in the Bronx and of his home and office in Fort Lee, New Jersey, and he answered the agents' questions about his businesses.

On February 27, 2007, Bah was charged in a three-count indictment with conspiring to commit money laundering, in violation of 18 U.S.C. § 1956(h); operating an unlicensed money transmitting business, in violation of 18 U.S.C. § 1960; and making false statements at a December 21, 2006 meeting with the government, in violation of 18 U.S.C. § 1001. On the eve of trial, the money laundering count was severed because the government's key witness had fled to Africa. Trial on the remaining two counts commenced on April 4, 2007, and concluded on April 6, 2007, when the jury convicted Bah on the money-transmitting count and acquitted him on the false-statements count.

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The Government's Case.

At trial, the government introduced evidence establishing that certain customers came to Bah's restaurant in the Bronx, delivered U.S. currency, and instructed Bah to deliver the equivalent value of local currency to recipients in West Africa. Bah provided Bronx customers with receipts and/or codes to ensure that the money was received by the correct party overseas.

The government's evidence included testimony from four customers who delivered money to Bah in the Bronx for transmission to Guinea or Sierra Leone. The physical evidence consisted mainly of items seized from the office at the back of the restaurant on Webster Avenue: a laptop computer; an electric money counter; " money receipts for [a] money transmission business" (blank and filled out); faxes addressed to Bah requesting " transfers" of United States currency; spreadsheets and ledgers bearing the name B & S Bah Enterprises and the Bronx address, and showing records of money transfers; business cards for B & S Bah Enterprises at the Webster Avenue address, with Bah listed as " President," and the words " Money Transfer, Import & Export, Shipping" ; and a commercial lease application dated July 18, 2002, signed by Bah, for " B & M Bah Money Remittance Corp.," listing Bah's " Existing Business Address" as 1715 Webster Avenue in the Bronx, and Bah's " Years in Business" as " 6 years."

The government also introduced bank records showing that B & S Bah Enterprises transferred more than $1.2 million through a Banco Popular branch in the Bronx, during the period from January 2002 through August 2002. The account was opened in October 2001 in Bah's name and listed 1715 Webster Avenue as the company's address. At the time Bah closed the account, the bank was investigating his account activity because of the number of monthly deposits, and because 95 to 97 percent of the deposit proceeds were transferred to foreign accounts.

Other prosecution evidence included a statement from a 2004 civil deposition in which Bah explained the operation of his money transmitting business and his arrangement for transferring money through businesses in Africa; and a letter, dated October 14, 1999, to the then Immigration and Naturalization Service ("INS"), on letterhead of " B & S Bah Enterprises" with the Bronx address, advertising " Import & Export," " Money Transfer[]," and " Shipping" services. Bah's letter to the INS explained that the purpose of his business was to arrange the transfer of funds to countries in West Africa.

The government introduced Bah's admissions to federal agents: that he had looked into obtaining a money transmitting license in New York State, but determined that it was too expensive; 1 that he had money transmitting receipts at his restaurant in the Bronx because he often brought documents from New Jersey to do " accounting work" in New York; and that, of the $50,000 to $60,000 he collected each week, $15,000 to $20,000 was collected in New York.

Bah stipulated at trial that neither he nor B & S Bah Enterprises had ever been licensed by the State of New York for the businesses of receiving money for transmission or transmitting money and that B & S Bah Enterprises had never registered with the United States Treasury as a money transmitting business.

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Bah's Defense.

Bah testified as follows in his own defense. He opened B & S Bah Enterprises in New York in 1999 as a means by which African immigrants living in this country could avoid corruption and theft in certain African banking systems. In exchange for payment in the United States, Bah's company purchased products (such as food, clothing, electronics, and building supplies) that were delivered to his native Guinea and other African countries.

After several years of operating his export/import business, Bah was approached by customers wanting to safely deliver cash to friends and family in Africa. To meet this need, Bah opened a money transmitting business in New Jersey named B & M Bah Enterprises, Inc.2

Bah did not transfer money directly from the United States to Africa. Rather, he set up a system whereby customers in the United States gave him cash, which he used to purchase goods to sell in Africa. Bah then sold those goods to African merchants and used the proceeds to pay money transfer recipients.

Bah did not operate a money transmitting business prior to opening his New Jersey business in 2002; records predating that business concerned the transmission of money overseas for the purpose of purchasing goods for export.

Bah called three character witnesses who testified to his reputation for...

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