U.S. v. Eirin, 84-5772

• Citation: 778 F.2d 722
• Decision Date: 19 December 1985
• Docket Number: No. 84-5772,84-5772
• Parties: 19 Fed. R. Evid. Serv. 1442 UNITED STATES of America, Plaintiff-Appellee, v. Delores EIRIN, a/k/a "Lolita", Roberto Botero, Defendants-Appellants.
• Court: United States Courts of Appeals. United States Court of Appeals (11th Circuit)

Page 722

778 F.2d 722

19 Fed. R. Evid. Serv. 1442

UNITED STATES of America, Plaintiff-Appellee, v. Delores EIRIN, a/k/a "Lolita", Roberto Botero, Defendants-Appellants.

No. 84-5772.

United States Court of Appeals Eleventh Circuit.

Dec. 19, 1985.

J. David Bogenschutz, Kay & Bogenschutz, P.A., Fort Lauderdale, Fla., Rhea P. Grossman, Miami, Fla., for Eirin.

Joel Hirschhorn, Miami, Fla., for Botero.

Stanley Marcus, U.S. Atty., Gerald Houlihan, Kathleen Williams, Linda Collins-Hertz, Asst. U.S. Attys., Miami, Fla., for the U.S.

Appeal from the United States District Court for the Southern District of Florida.

Before HATCHETT and CLARK, Circuit Judges, and ALLGOOD ^*, District Judge.

HATCHETT, Circuit Judge:

In this "money laundering" case in which more than $57,000,000 passed through one bank in a ten month period, all without proper reports being filed, we are urged to reverse the appellants' convictions for numerous alleged errors relating to pre-trial investigative techniques, admission of evidence, trial judge misconduct, failure to sever appellants, and prosecutorial misconduct. We affirm.

FACTS

In October, 1979, Hernan Botero entered the Landmark First National Bank of Fort Lauderdale, West Broward Branch, and asked Delores Eirin, a bank officer, whether large amounts of cash could be deposited without filing government reports. Federal law requires banks to file Currency Transaction Reports (CTR) with the Internal Revenue Service (IRS) on all cash transactions of $10,000 or more.

Following Botero's inquiry, Eirin discussed a money laundering scheme with two bank loan officers, Alan Campbell and Gary Dodson. In December, 1979, Eirin introduced Botero to Campbell and Dodson. Botero explained that he imported a Colombian "product" into the United States and sold it for cash. Botero intended to convert the U.S. currency into pesos and then transfer the money to Colombian banks without notifying the government. Botero insisted that the transfers to Colombia be made quickly to avoid loss because of fluctuating currency rates. Botero illustrated his operation by drawing a circular diagram on a legal pad to demonstrate the movement of his "product" into the United States and the corresponding flow of funds to Colombia.

While describing his business, Botero never identified the "product"; he told Campbell and Dodson to expect about $400,000 each banking day. Botero agreed to pay the three bankers 3/4 of 1 percent of the gross receipts for handling the deposits without filing CTRs.

In December, 1979, Botero opened five accounts using fictitious names that Eirin provided. ¹ While sitting at Eirin's desk, Botero made a telephone call to an unknown individual who assigned five passport numbers to be used as identification on the signature cards. Eirin subsequently sent Arthur Griffin, the West Broward manager of the Landmark Bank, a memo stating that she opened all five accounts.

Because of the use of El Salvador passport numbers, the bankers decided that the cover story for the deposits would be that the five individuals were citizens of San Salvador who were attempting to get their money out of the country due to increasing political unrest. ²

Botero introduced the bankers to two couriers who would deliver money to the bank. Lasardo Restrepo was one of Botero's couriers who made the initial $400,000 deposit on December 31, 1979. Botero returned to the bank and determined that the transaction was properly processed. He subsequently paid Eirin, Campbell, and Dodson their first $3,000 commission by drawing a check on his personal and/or business account, C.I.A. Rodnan S.A.

Eirin, Campbell, and Dodson decided to pay two bank employees who counted cash, Norma Cocuzza, the head teller, and Jeanette Winus, the head of the collection department. Eirin, Campbell, and Dodson believed that the payments would ensure that these employees would not complain about the additional work involved in counting such large amounts of cash. Subsequently, Eirin, Campbell, and Dodson paid Cocuzza and Winus 10 percent of the total commission they received from each deposit. Cocuzza and Winus received cash payments, usually in an envelope; often, they received payments from each of the three bankers. Eirin, Campbell, and Dodson never told Cocuzza and Winus of the laundering scheme and their failure to file CRTs; rather, the bankers justified the payments as compensation for the late working hours.

When Winus questioned Eirin about the source of the money, Eirin told her the "cover story" that five wealthy Salvadorans were transferring their money out of the country because of political unrest. Further, Eirin assured Winus that the CTRs were being filed for the cash deposits. Also, Eirin told Fran Volz, another bank employee, that the CTRs were properly filed. Again, in February, 1980, Eirin sent a memo to Griffin stating that she had opened the five accounts and that the customers were "very nice with proper I.D. from San Salvador," and that she was filing CTRs on the deposits.

In January and February, 1980, a majority of the cash was transferred by wire to the Pan American Bank in Miami for credit to accounts in two Colombian banks, Banco de Bogota, Colpatria, and Banco de los Trabajadores. Additionally, Eirin, Campbell, and Dodson also wired funds to at least sixteen other banks or individuals.

Because the wire transfers attracted the attention of Landmark's main office, Eirin, Campbell, and Dodson began transferring money with cashier's checks; all three bankers had authority to sign these checks, and this method was subject to less scrutiny by bank management.

The initial deposit set a pattern for all deposits to follow. Couriers brought cash deposits into the bank in suitcases, duffel bags, cardboard boxes, T.V. boxes, and paper bags. Then, Eirin, Campbell, and Dodson received a commission from which they paid the bank tellers.

Eirin maintained a "bible" of the operation, a stenographic pad, which included a detailed record of deposits and distribution of the proceeds. Dodson destroyed the pad prior to his departure from the bank.

Eirin, Campbell, and Dodson prepared CTRs for each deposit. They destroyed the original copy of each report, which should have been sent to the Internal Revenue Service; they placed a copy of each report in the bank's files, so that management would believe that the forms were properly filed.

In February or March, 1980, Hernan Botero introduced his brother, Roberto Botero, to Eirin, Campbell, and Dodson. Subsequently, Roberto Botero began to monitor and direct the cash transfers. Roberto Botero encouraged the bankers to move the cash quickly; he told Dodson that the people at the Pan American Bank in Miami worked faster and "weren't getting paid." Roberto Botero also stressed to Campbell and Dodson that the CTRs should not be filed.

Eirin told Campbell and Dodson that she was investing her commissions in Venezuelan cattle. She also indicated that she was making deposits into an account for Roberto G. Gabari, her nephew. On March 14, 1978, Eirin opened a savings account at Landmark Bank for Gabari. From March, 1978 to March, 1980, the account was virtually inactive with a maximum balance of less than $400. Between March 25 through October 15, 1980, Eirin made 23 cash deposits into the account totaling $92,964. By December 31, 1980, the account contained about $71,000. In January, 1981, Eirin withdrew $60,000: $10,000 cash and $50,000 in cashier's checks payable to Gabari.

In May, 1980, Restrepo entered the bank several times without any money. He told the bankers that one of Hernan Botero's boats had been seized during the Mariel boat lift, which interfered with business. Shortly thereafter, the couriers continued to deposit cash regularly.

In October, 1980, Federal Bank Examiners and Treasury Special Agents arrived at the bank. Following their arrival, the Boteros did not deposit any money into the Landmark Bank. Eirin told Campbell and Dodson that if the examiners questioned her about the "laundering operation" she would just play dumb.

Between December, 1979 and October, 1980, the Boteros deposited over $57 million into the 5 fictitious accounts. During this time, the Boteros placed funds directly from the five accounts into their own personal and business accounts.

On February 10, 1981, law enforcement officers arrested Eirin and Botero. Campbell and Dodson entered into an agreement with the government. In exchange for their cooperation and truthful testimony regarding illegal activities at Landmark Bank, the government agreed to accept from each a guilty plea to a misdemeanor charge of receiving gratuities.

On February 19, 1981, the grand jury returned an eighteen-count indictment charging Eirin, Roberto Botero, and others with violations of federal currency laws regarding disclosure of cash deposits. On March 25, 1981, a superseding indictment charged additional defendants. ³ Following the government's dismissal of six counts of mail fraud, the government prosecuted Eirin and Botero on the remaining twelve charges. Count I charges that the appellants intentionally conspired to defraud the United States by obstructing the collection of financial data and failing to file CTRs in violation of 18 U.S.C.A. Sec. 371. Count II charges appellants with intentionally falsifying and concealing material facts within the jurisdiction of the IRS in violation of 18 U.S.C.A. Secs. 1001 and 1002. Counts III through XII charge appellants with deliberately failing to file CTRs in violation of 31 U.S.C.A. Secs. 1059, 1081, and 18 U.S.C.A. Sec. 2. On July 25, 1985, the jury returned verdicts finding Eirin guilty on all counts and Botero guilty on all counts except Count IV.

ISSUES

Appellants raise six issues: (1) Whether the district court erred in admitting Botero's post-arrest statements; (2) whether the district court erred in admitting coconspirator statements under Federal Rule of...