U.S. v. Brown, 91-8167

• Decision Date: 06 March 1992
• Docket Number: No. 91-8167,91-8167
• Citation: 954 F.2d 1563
• Parties: 92-1 USTC P 50,161 UNITED STATES of America, Plaintiff-Appellee, v. Carolyn BROWN, Richard Brown, Dorothy Lewis Brown, Rosa Brown, Shenita Jackson Brown, Defendants-Appellants.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1563

954 F.2d 1563

92-1 USTC P 50,161

UNITED STATES of America, Plaintiff-Appellee, v. Carolyn BROWN, Richard Brown, Dorothy Lewis Brown, Rosa Brown, Shenita Jackson Brown, Defendants-Appellants.

No. 91-8167.

United States Court of Appeals Eleventh Circuit.

March 6, 1992.

Phillip R. McCorkle, McCorkle, Pedigo & Johnson, Savannah, Ga., for Carolyn Brown.

Neil A. Creasy, Adams, Gardner & Ellis, P.C., Savannah, Ga., for Richard Brown.

Harold R. Yellin, Savannah, Ga., for Rosa Brown.

Aron G. Weiner, Weiner, Shearouse, Weitz, Greenberg & Shawe, Savannah, Ga., for S. Jackson Brown.

John R. Calhoun, Calhoun and Associates, James C. Metts., Gregory N. Crawford, Savannah, Ga., for Dorothy Lewis Brown.

Lamar C. Walter, Asst. U.S. Atty., Savannah, Ga., for U.S.

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

Before FAY and HATCHETT, Circuit Judges, and GIBSON ^*, Senior Circuit Judge.

HATCHETT, Circuit Judge:

As a matter of first impression in this circuit, we hold that the government is not required to prove that a defendant was aware of the illegality of money structuring in order to convict for that offense under 31 U.S.C. § 5324(3).

FACTS

Dorothy Brown (Dorothy), an unemployed public housing tenant, had tried unsuccessfully on two previous occasions to purchase property using various relatives as cosignatories or purported purchasers. In April, 1988, Dorothy Brown solicited Eric Maxwell (Maxwell) to make a fictitious personal loan for the purpose of purchasing a home. Maxwell had recently won a personal injury settlement of over $90,000.

Maxwell eventually agreed to assist Dorothy and her family. On April 22, 1988, Rosa Brown (Rosa), Dorothy's daughter, purchased a $10,000 cashier's check at Carver State Bank in Savannah, Georgia, "with dirty, mutilated U.S. currency." When the teller informed her that the bank would have to file a currency transaction report (CTR), Rosa Brown supplied Eric Maxwell's name as the owner of the funds. The bank filed the CTR accordingly. That same day, Shenita Jackson Brown (Shenita), Dorothy's daughter-in-law, purchased a On April 23, 1988, Maxwell watched as Rosa Brown and Carolyn Brown, another daughter of Dorothy Brown, counted out $30,000 in cash from a brown paper bag. They then drove Maxwell to C & S Bank where, with Carolyn Brown's assistance, he bought two cashier's checks using the money from the paper bag. The bank listed Maxwell as the owner of the funds on the currency transaction reports. Later the same day, Maxwell and the Browns met at the office of an attorney to close on the purchase of a home at 602 West 38th Street. Dorothy Brown gave the attorney the cashier's checks and executed a security deed and note in favor of Maxwell. Maxwell immediately gave the note to Carolyn Brown and relinquished the security deed soon thereafter.

                cashier's check at another bank in the amount of $2,205, listing Eric Maxwell as the remitter.   Because the transaction was for an amount less than $10,000, the bank did not file a CTR
                

On June 23, 1989, Dorothy Brown mortgaged the home she had purchased in order to obtain a $28,000 loan from Old Stone Credit. She told the loan officer that she had purchased the home for cash with money she had earned from her restaurant. After obtaining the loan, Dorothy Brown deposited the proceeds in an account at First Union Bank in the name of "Dorothy's Place," listing herself, her son Richard Brown, and her daughter Carolyn Brown as authorized signatories.

On August 3, 1989, Dorothy Brown and Carolyn Brown attempted to withdraw $18,000 from the Dorothy's Place account at First Union Bank. When told that a currency transaction report would have to be filed, Dorothy inquired whether she could withdraw $10,000. The bank officer replied that she could. While Dorothy and Carolyn Brown discussed what to do, the bank officer overheard them say, "Richard did not want it that way." Carolyn Brown then wrote a new counter check for $10,000, which Dorothy Brown signed and cashed. A few days later, Dorothy Brown cashed another check for $8,000 drawn on the same account.

In May, 1989, Eric Maxwell told an Internal Revenue Service (IRS) agent that he did not loan the Browns the money they used to purchase the house at 602 West 38th Street. On August 29, 1989, Dorothy Brown told the IRS that she withdrew the funds from the Dorothy's Place account in two installments in order to avoid transaction reporting requirements.

In July, 1989, Dorothy and Carolyn twice visited Eric Maxwell's home to question him regarding his cooperation with the IRS. They told him to tell the IRS that he had loaned them the money that they used to buy the house. In addition, Dorothy and Carolyn questioned another potential witness, Lillie Mae Jenkins, regarding her cooperation with the IRS.

PROCEDURAL HISTORY

A grand jury charged Dorothy Brown, Carolyn Brown, Richard Brown, Rosa Brown, and Shenita Jackson Brown in an eight-count indictment with: (I) conspiracy to defraud the IRS and to evade financial reporting requirements by causing domestic financial institutions to file false currency transaction reports in violation of 31 U.S.C. § 5324(2) and by structuring currency transactions in violation of 31 U.S.C. § 5324(3); (II) and (III) defrauding the IRS and evading financial reporting requirements by causing domestic financial institutions to file false currency transaction reports in violation of 31 U.S.C. § 5324(2) (the Carver State Bank and C & S Bank cashier's checks respectively); (IV) obstruction of justice; (V) and (VI) structuring of cash transactions to avoid the reporting requirements of 31 U.S.C. § 5313(a), in violation of 31 U.S.C. § 5324(3) (the First Union Bank account withdrawals); and (VII) and (VIII) forfeiture.

The jury convicted Dorothy Brown on Counts I, III, V, VI, and VII; Carolyn Brown on Counts I, III, V, and VI; Richard Brown on Counts I and VI; Rosa Brown on Counts I and II; and Shenita Jackson Brown on Count I. The court sentenced Richard Brown to serve eighteen months in prison; Carolyn Brown, fifteen months; Dorothy Brown, twelve months; Rosa

                Brown, eight months;  and Shenita Jackson Brown, four months.   All are appellants in this case
                

CONTENTIONS OF THE PARTIES

All appellants contend that the district court erred in charging the jury that knowledge of the unlawful nature of the act is not an essential element of the crime under 31 U.S.C. § 5324(3), the statute prohibiting structuring of currency transactions. In addition, all of the appellants, except Dorothy Brown, challenge the sufficiency of the evidence. Carolyn Brown also contends that the district court abused its discretion when it allowed the government to recall its key witness, Eric Maxwell, on the second day of trial. Dorothy Brown contends that the district court erred in admitting certain incriminating statements and that she was denied effective assistance of counsel. Richard Brown contends that he was deprived of a fair trial by the prosecutor's closing argument. The government responds that the trial court's rulings were not in error, and the evidence was sufficient to support the verdicts. In addition, the government contends that knowledge of the unlawful nature of the act is not an essential element of the crime under 31 U.S.C. § 5324(3); therefore, the district court committed no error in its charge to the jury.

ISSUES

(1) Whether the trial court erred in charging the jury that knowledge of the unlawful nature of the act is not an essential element of the crime under 31 U.S.C. § 5324(3), the anti-structuring statute; (2) whether the evidence was sufficient to support conviction of the appellants; (3) whether the trial court abused its discretion when it allowed the government to recall a key witness; (4) whether the trial court erred in admitting evidence of incriminating statements made by Dorothy Brown; (5) whether Dorothy Brown was denied effective assistance of counsel; and (6) whether Richard Brown was substantially prejudiced and deprived of a fair trial by allegations made in the prosecuting attorney's closing argument.

DISCUSSION

1. Mens Rea Requirement of the Anti-Structuring Statute

All appellants argue that the trial court erred in refusing to charge the jury that knowledge of the unlawful nature of the act is an essential element of the crime under 31 U.S.C. § 5324(3), the anti-structuring statute. Because currency transaction structuring is not inherently unsavory or dangerous they argue, persons who engage in it should not be held criminally liable unless the prosecution shows that such persons knew their conduct was prohibited by law. Compare United States v. Liparota, 471 U.S. 419, 105 S.Ct. 2084, 85 L.Ed.2d 434 (1985) (ignorance of the law a defense to crime of unauthorized acquisition of food stamps because food stamps not physically dangerous) with United States v. Balint, 258 U.S. 250, 42 S.Ct. 301, 66 L.Ed. 604 (1922) and United States v. Freed, 401 U.S. 601, 91 S.Ct. 1112, 28 L.Ed.2d 356 (1971) (knowledge of illegality not required to convict for violation of laws prohibiting sale of narcotics and possession of unregistered hand guns, respectively, because narcotics and hand guns are physically dangerous).

The appellants cite United States v. United States Gypsum Co., 438 U.S. 422, 437, 98 S.Ct. 2864, 2873, 57 L.Ed.2d 854 (1978), to argue that the statute's ambiguity regarding intent entitles them to the benefit of "the rule of lenity": the court should adopt the less harsh of two equally reasonable interpretations of a statute in order to ensure that the statute provides fair warning of prohibited conduct. See also Lambert v. California, 355 U.S. 225, 78 S.Ct. 240, 2 L.Ed.2d 228 (1957). The appellants further argue that according to the Supreme Court's holding in United States v. Cheek, --- U.S. ----, ---- - ----, 111 S.Ct. 604, 610-11, 112 L.Ed.2d 617, 629-30 (1991), the jury must be allowed to...