U.S. v. Kramer
| Decision Date | 16 January 1996 |
| Docket Number | 91-5659 and 93-4951,Nos. 90-5055,90-5431,90-5751,90-5360,s. 90-5055 |
| Citation | 73 F.3d 1067 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Benjamin Barry KRAMER, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Michael GILBERT, Benjamin Barry Kramer, Defendants-Appellants. UNITED STATES of America, Plaintiff-Appellee, v. Benjamin Barry KRAMER, et al., Defendants, Michael Gilbert, Karen Gilbert, Robert Gilbert, Margaret Gilbert, the Michael Gilbert Family Irrevocable Trust, and the Robert Gilbert Family Irrevocable Trust, Claimants-Appellants. UNITED STATES of America, Plaintiff-Appellee, v. Benjamin Barry KRAMER, Michael Gilbert, Defendants-Appellants. UNITED STATES of America, Plaintiff-Appellee, v. Benjamin Barry KRAMER, et al., Defendants, Karen Gilbert, the Michael Gilbert Family Irrevocable Trust, Claimants-Appellants. UNITED STATES of America, Plaintiff-Appellee, v. Michael S. GILBERT, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
Kenneth J. Kukec, Miami, FL, for Benjamin Kramer in Nos. 90-5055, 90-5360 and 90-5751.
Bruce Rogow, Ft. Lauderdale, FL, for Michael Gilbert in Nos. 90-5055, 90-5431, 91-5659 & 93-4951.
Dexter W. Lehtinen, U.S. Atty., Robert J. Bondi, Alice Ann Burns, Linda Collins Hertz, Anne M. Hayes, Asst. U.S. Attys., Miami, FL, for U.S. in Nos. 90-5055, 90-5431, 90-5751, 90-5360 & 91-5659.
Michael S. Pasano, Miami, FL, for Michael Gilbert.
Steven E.M. Hartz, Miami, FL, for M. Dale Lyon & Lyon Children Trust in No. 90-5431.
Robert L. Shevin, Miami, FL, Stephen D. Miller, Los Angeles, CA, for David C. Pierson & Lois J. Pierson.
Richard H. Kirschner, Los Angeles, CA, A. Scott Miller, Miami, FL, for Julieann Coyne Wasson & Christopher Wasson.
William W. Taylor, Jr., Zuckerman, Spaeder, Goldstein, Taylor & Kulker, Washington, D.C., for Michael Gilbert, et al. in No. 90-5431.
Edward R. Shohat, Bierman, Shohat & Loewy, Miami, FL, for M. Dale Lyon & Lyon Children Trust in Nos. 90-5431 & 91-5659.
Marshall B. Grossman, Jonathan A. Loeb, Paul H. Rochmes, Alschuler, Grossman & Pines, Los Angeles, CA, for Karen Gilbert in Nos. 90-5431 & 91-5659.
Deborah J. Cantrell, Ross, Sacks & Glazier, Los Angeles, CA, for Michael S. Gilbert Family Irrevocable Trust in No. 90-5431.
Michael S. Pasano, Frederick W. Sall, Zuckerman, Spaeder, Taylor & Evans, Miami, FL, Deborah J. Cantrell, Ross, Sacks & Glazier, Los Angeles, CA, for Michael Gilbert Family Irrevocable Trust in No. 91-5659.
Michael S. Pasano, Humberto J. Pena, Zuckerman, Spaeder, Goldstein, Taylor & Kulker, Miami, FL, Bruce Rogow, Bruce S. Rogow, P.A., Beverly A. Pohl, Ft. Lauderdale, FL, for Michael Gilbert in No. 93-4951.
Kendall Coffey, U.S. Atty., Linda Collins Hertz, Alice Ann Burns, Anne M. Hayes, Robert J. Bondi, Asst. U.S. Attys., Miami, FL, for U.S. in No. 93-4951.
Appeals from the United States District Court for the Southern District of Florida.
Before EDMONDSON and BARKETT, Circuit Judges, and DYER, Senior Circuit Judge.
Benjamin Kramer and Michael Gilbert appeal their convictions for RICO and Travel Act violations. 1 Gilbert also appeals convictions for money laundering and obstruction of justice and perjury--and a judgment of forfeiture. We reverse Gilbert's conviction for money laundering and the forfeiture judgment. In all other respects we affirm.
Between the years 1982 and 1987 Benjamin Kramer imported huge quantities of marijuana into the United States. 2 Sam Gilbert, a wealthy businessman in Los Angeles, was one of many who assisted Kramer in laundering the considerable amounts of cash generated by this operation. When Kramer would have cash delivered to California, Sam Gilbert would convert it to cashier's checks. Michael Gilbert (Sam Gilbert's son and business associate) obtained many of these cashier's checks from a local bank. 3 Cashier's checks were also obtained through the fictitious sale of precious metal coins. Michael Gilbert delivered cash in sealed boxes to the banker responsible for this "cash to coins" portion of the laundering scheme. These cashier's checks were then sent to a shell company in Liechtenstein. From there the money was transferred through other entities in other countries to further disguise the origin of the money.
Sam Gilbert formed a California entity ("CGL") to receive the money after it was "cleaned" by these transfers. CGL, purporting to be a legitimate mortgage broker, loaned $15 million to finance a casino, the Bell Gardens Bicycle Club ("BGBC"). Sam Gilbert's construction company, Sam Gilbert Associates ("SGA") built the casino. Michael Gilbert, president of SGA, supervised this construction. CGL also helped finance the Fort Apache Marina in Miami. Michael Gilbert, also an officer at CGL, supervised the construction of the Marina. 4
Kramer decided to convert his assets to cash and demanded that the BGBC pay its mortgage. BGBC obtained a loan and paid CGL with a $9.5 million cashier's check. The $9.5 million was sent from California to Switzerland, where it remained until it was transferred to Luxembourg. Michael Gilbert signed a CGL board resolution authorizing the transfer of these funds from Switzerland to Luxembourg. Michael Gilbert maintained that he did not realize that his acts were furthering a criminal enterprise and that he was simply following the directions of his father, Sam. Sam Gilbert died before Michael's trial.
In a 1990 trial following his arrest, Michael Gilbert was convicted of three counts of violating the Travel Act, 18 U.S.C. Sec. 1952, and one count of violating the RICO statute, 18 U.S.C. Sec. 1962(d). He was acquitted on a RICO conspiracy count and acquitted on various other Travel Act counts. Later, the same jury also returned a forfeiture verdict against Gilbert's interest in the BGBC.
In 1993, in a separate proceeding, Michael Gilbert was tried and convicted of money laundering under 18 U.S.C. Sec. 1956(a)(2)(B)(i), and of obstruction of justice and perjury based on his testimony in the 1990 trial.
Michael Gilbert argues that the evidence was insufficient to sustain his convictions on the Travel Act counts. A claim of insufficient evidence to sustain a conviction is reviewed de novo. United States v. Mieres-Borges, 919 F.2d 652, 656 (11th Cir.1990).
A conviction under the Travel Act requires the jury to find that the defendant traveled in interstate commerce with the intent to promote unlawful activity and thereafter actually did promote or attempt to promote the unlawful activity. See 18 U.S.C. Sec. 1952(a)(3). Gilbert's convictions were based on three trips between California and Miami in 1985 which were alleged to have been in furtherance of the money laundering scheme.
Gilbert first argues that no reasonable juror could find that it was he who traveled between California and Miami on the dates in question. The government presented the jury with receipts from travel agencies, credit cards, and airlines--all bearing Michael Gilbert's name and all placing him in Miami on the dates in question. Gilbert, who lived in California, testified that he traveled to Miami to supervise the construction of the Fort Apache Marina. Gilbert also testified that the Marina was under construction on the dates he was alleged to have traveled to Miami. As such, it was reasonable for the jury to conclude that it was Gilbert who traveled to Miami.
For the jury to conclude that Gilbert's travels in fact promoted the illegal scheme was also reasonable. The jury properly concluded that Gilbert's travels were to supervise the construction of the Marina. And, the Marina project was financed with Kramer drug money funnelled through CGL. 5 Thus, the jury properly concluded Gilbert's travel to construct the Marina in fact assisted the money laundering operation.
Gilbert also argues the government did not prove that he traveled with the intent to promote the illegal scheme. At the outset, we point out that intent and knowledge are nearly always proved by circumstantial evidence. Because the Travel Act convictions must be based on proof of guilty knowledge during specific travels, we will briefly explain why the jury was entitled to conclude that Gilbert knew his travels furthered the unlawful enterprise.
First, Special Agent Roger Edwards explained to the jury how CGL was established for the unlawful purpose of laundering drug money. Second, the jury was entitled to infer that Gilbert knew the illegal source of CGL's money. 6 Third, Gilbert told the jury that he knew CGL helped finance the Marina. Fourth, the jury was entitled to believe that Gilbert traveled to Miami on the dates alleged to supervise the construction of the Marina. Thus, that the jury was entitled to conclude that Gilbert knew that his trips to Miami were to help disguise Kramer drug proceeds through the construction of the Marina is clear. This amount of evidence is sufficient to sustain Gilbert's convictions. 7
In addition, I note that Gilbert took the stand and offered an explanation for all his misdeeds--he told the jury he was the unknowing dupe of his father. The jury could have chosen to believe Gilbert and entered a verdict of acquittal. But, the jury was also entitled to disbelieve Gilbert's testimony and to consider it substantive evidence of guilt, especially on the question of his intent. See United States v. Brown, 53 F.3d 312, 314-15 (11th Cir.1995).
After seven days of deliberation, the jury notified the court that it was unable to reach a unanimous verdict on Michael Gilbert. In response, the court issued a modified pattern Allen charge. 8 The charge encouraged jurors to reach a unanimous verdict, but also instructed jurors not to give up honestly held beliefs and to return a not guilty verdict if the evidence did not show guilt beyond a reasonable doubt. The next day the jury returned its guilty verdict. In reviewing the propriety of an Allen...
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Perjury.
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