U.S. v. Isabel, Nos. 90-1839

• Citation: 945 F.2d 1193
• Decision Date: 08 January 1991
• Docket Number: Nos. 90-1839,90-1860
• Parties: 34 Fed. R. Evid. Serv. 143 UNITED STATES of America, Appellee, v. Maurice ISABEL, Defendant, Appellant. UNITED STATES of America, Appellee, v. Ronald DESCOTEAUX, a/k/a Piece of Cake, a/k/a Wacky Ron, Defendant, Appellant. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 1193

945 F.2d 1193

34 Fed. R. Evid. Serv. 143

UNITED STATES of America, Appellee, v. Maurice ISABEL, Defendant, Appellant.

UNITED STATES of America, Appellee, v. Ronald DESCOTEAUX, a/k/a Piece of Cake, a/k/a Wacky Ron,

Defendant, Appellant.

Nos. 90-1839, 90-1860.

United States Court of Appeals First Circuit.

Heard Jan. 8, 1991.

Decided Sept. 10, 1991.

Carmine W. DiAdamo, for defendant, appellant Maurice Isabel.

Stanley W. Norkunas, for defendant, appellant Ronald Descoteaux.

Jean B. Weld, Asst. U.S. Atty., with whom Jeffrey R. Howard, U.S. Atty., was on brief, for appellee.

Before TORRUELLA, SELYA and CYR, Circuit Judges.

CYR, Circuit Judge.

Maurice Isabel and Ronald Descoteaux appeal their convictions under 18 U.S.C. §§ 371 and 1956(a)(1)(B)(i), for conspiracy to launder proceeds from cocaine trafficking. Appellants challenge: (i) the amendment of the indictment at the close of the evidence; (ii) the admission of certain testimony at trial; (iii) the sufficiency of the evidence; and (iv) the decision not to depart downward from the guideline sentencing range. We affirm.

I BACKGROUND

A. Procedural History

On January 31, 1990, the grand jury returned a seven count indictment charging Isabel and Descoteaux with conspiring to file false federal tax documents (count I, pp 1-3), and with conspiring

[t]o conduct and attempt to conduct financial transactions, in order to "launder" proceeds of specified unlawful activities, to-wit: specifically (a) dealing in narcotic and dangerous drugs, and (b) gambling, in the approximate total amount of $98,225, in order to conceal and disguise the true nature, location, and source of the drug trafficking and gambling proceeds, in violation of 18 U.S.C. § 1956(a)(1)(A).

(Count I, p 4). The indictment further charged Isabel with the substantive crime of money laundering (counts II-VI), and Descoteaux with conspiracy to distribute cocaine (count VII). ¹

A jury trial was commenced on April 17, 1990. At the close of all the evidence, the court allowed the government to amend the indictment to correct a miscitation in count I, p 4. Appellants were convicted of conspiracy to file false federal tax documents and conspiracy to launder cocaine trafficking proceeds, but were acquitted on all remaining counts.

B. Facts

The testimonial and documentary evidence adduced at trial tells the tale. Maurice Isabel owned M.G. Masonry, a small, legitimate business engaged in brick and block work. ² In 1983 Jean M. Lemieux, a prominent local cocaine dealer, was warned by his supplier that, "I should pay taxes because they're going to catch up with me, because, you know, I was buying cars and all this stuff. So I had to show that I was making money somewhere, and that's how I made it." Lemieux's supplier recommended that Lemieux contact Maurice Isabel. After Isabel and Lemieux met, Isabel agreed to put Lemieux on the M.G. Masonry payroll. ³ In 1984, and during the period 1986 through 1988, Lemieux purportedly "earned" a total of $85,396 in gross income from M.G. Masonry. Lemieux actually worked only two weeks for M.G. Masonry during the entire four-year period. (After he was indicted on drug charges in Miami, Lemieux decided: "I better start working to make it look good, and I worked for two weeks and I quit."). ⁴

Lemieux's covert arrangement with Isabel was uncomplicated. He tendered cash, instead of services, in exchange for the putative M.G. Masonry wages. Lemieux informed Isabel that he "need[ed] at least $700 a week." Lemieux would pay Isabel cash in the amount of the supposed gross wage, and Isabel would give Lemieux a check drawn on the M.G. Masonry account in the amount of the net wage calculated by Isabel, applying the difference to income tax, social security, and workers' compensation payments. Isabel supplied Lemieux with W-2 forms purporting to reflect Lemieux's earnings. Thus, Lemieux, in his own words, received "legal money, so I was able to use it." Isabel garnered phony business expense write-offs with which to reduce his taxable business income.

During their extended business relationship, Lemieux had no legitimate source of income, and never suggested otherwise to Isabel. When asked "[i]s there anything other than drug dealing, Mr. Lemieux, that you've ever told Isabel that you did for a living during that period of time [1982 to date]," Lemieux responded, "No, I told him I was doing drugs." When Lemieux and Isabel conducted their first transaction--the $19,200 "sale" of masonry supplies in 1983--Lemieux informed Isabel that the money came from selling drugs. Later on, Lemieux told Isabel that appellant Descoteaux sold drugs for him. ⁵ Isabel was aware also of Lemieux's arrest on drug charges in 1987.

The government elicited additional testimony from one Joe Scott, a general contractor for whom Isabel had done masonry work over a period of years. Scott testified that in May 1989, after becoming aware of what he believed to be then-pending money laundering charges against Isabel, he asked Isabel, " 'Did you launder any money?' " Scott testified that Isabel responded "that he did launder the money."

The evidence on appellant Descoteaux's relationship with Isabel was not as abundant. Descoteaux was on the M.G. Masonry payroll for two years, "earning" a total of $11,000 in gross income. During that time, he was not known to have any source of income other than cocaine trafficking. Lemieux was responsible for bringing Descoteaux and Isabel together, having suggested to Descoteaux that he contact Isabel to "get a check like I get because, you know, it don't look good.... He needs to report the taxes every year.... So I told him to go down and see Maurice Isabel." Lemieux later asked Isabel whether Descoteaux had been to see him, and Isabel responded, "Yes ... I took care of it." Lemieux further testified that Isabel said: "Ronnie [Descoteaux] came down and pick (sic) up the check," and that Isabel "was giving Ronnie some checks."

II DISCUSSION

A. Miscitation in Indictment

The district court allowed the government to amend the statutory citation in count I, p 4, to refer to 18 U.S.C. § 1956(a)(1)(B) instead of 18 U.S.C. § 1956(a)(1)(A), and determined that the miscitation in the original indictment was nonprejudicial. ⁶ Federal Rule of Criminal Procedure 7(c) provides in relevant part that:

(1) The indictment or information shall state for each count the official or customary citation of the statute, rule, regulation or other provision of law which the defendant is alleged therein to have violated

....

(3) Harmless Error. Error in the citation or its omission shall not be ground for dismissal of the indictment or information or for reversal of a conviction if the error or omission did not mislead the defendant to the defendant's prejudice.

Appellants argue that the miscitation in the original indictment, and its belated amendment immediately before trial, prejudiced their defense. According to appellants, until the time the amendment was allowed they had proceeded on the understanding that the government was attempting, mistakenly, to charge them under section 1956(a)(1)(A)(ii), which was not in effect when their payroll check transactions were conducted. ⁷ Their theory is not borne out by the record.

First, count I, paragraph 4, plainly alleges a violation of 18 U.S.C. § 1956(a)(1)(B)(i) by charging a conspiracy to "launder" drug trafficking and gambling proceeds "in order to conceal and disguise the true nature, location, and source of the drug trafficking and gambling proceeds." The language of the indictment closely tracks section 1956(a)(1)(B)(i), which criminalizes the knowing conduct of a financial transaction designed to "conceal or disguise the nature, the location, the source, the ownership, or the control of the proceeds of specified unlawful activity." Section 1956(a)(1)(A)(ii), on the other hand, criminalizes financial transactions undertaken with intent to engage in conduct violative of I.R.C. §§ 7201 and 7206, which in turn criminalize attempted tax evasion and the filing of false tax documents. As the original indictment was drafted in the operative language of section 1956(a)(1)(B)(i), which bears little resemblance to section 1956(a)(1)(A), we find that the citation to section 1956(a)(1)(A) was a patent mistake and that the original indictment placed appellants on reasonable notice that they were being charged with the money laundering conspiracy expressly alleged in the text of the indictment. See United States v. Morrison, 531 F.2d 1089, 1094 (1st Cir.) (defendant not prejudiced by government's failure to cite to correct statute where text of indictment provided adequate notice of charge), cert. denied, 429 U.S. 837, 97 S.Ct. 104, 50 L.Ed.2d 103 (1976); United States v. Kennington, 650 F.2d 544, 546 (5th Cir. Unit B 1981) (per curiam) (same); United States v. Stinson, 594 F.2d 982, 984-85 (4th Cir.1979) (no prejudice where indictment cited 26 U.S.C. § 5861(e) but used "precise language" of § 5861(d)); see also United States v. Mena, 933 F.2d 19, 22 n. 2 (1st Cir.1991).

Furthermore, whatever initial confusion might have been created by the obvious inconsistency between the text of the indictment and the miscitation to section 1956(a)(1)(A) ⁸ would have been dissipated entirely and immediately upon presentation of the government's opening statement, if not sooner:

This trial involves drug dealers, gamblers and money launderers. We're not talking about an attempt by Mr. Isabel and Mr. Descoteaux to cheat on their taxes. Okay. The United States Attorney prosecutes those cases as well. But this is not a tax evasion case. These people, ladies and gentlemen, are charged with conspiring together and with other drug dealers and gamblers to launder money and to make it look like that money was legitimate income, legal income. The way they did it was the drug dealers ... would give their money to Mr. Isabel. Mr. Descoteaux was one of the drug...