U.S. v. Levy, 91-3574
| Decision Date | 11 August 1992 |
| Docket Number | No. 91-3574,91-3574 |
| Citation | 969 F.2d 136 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. David L. LEVY and Howard McNaughton, Defendants-Appellants. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Herbert V. Larson, Jr., New Orleans, La. (Court-appointed), for Levy.
Frank Sloan, Covington, La. (Court-appointed), for McNaughton.
Peter G. Strasser, James B. Letten, Asst. U.S. Attys., Harry Rosenberg, U.S. Atty., New Orleans, La., Miriam N. Banks, Frank J. Marine, Deputy Chief, U.S. Dept. of Justice, Crim. Div., OCRS/Lit. Unit, Lester M. Joseph, Deputy Chief, Money Laundering Sec., Crim. Div., U.S. Dept. of Justice, Washington, D.C., for U.S.
Appeals from the United States District Court For the Eastern District of Louisiana.
Before WISDOM, SMITH, and EMILIO M. GARZA, Circuit Judges.
The defendants/appellants were convicted on several counts as active participants in a money laundering scheme and conspiracy to evade currency reporting requirements. They contend that they were not required to file currency transaction reports with respect to the alleged money laundering because their activities fell within a loophole in the law. We hold that this loophole does not exist. We are also asked to interpret the aiding and abetting statute, 18 U.S.C. § 2, so that a defendant may not be found guilty of causing a violation to be committed by an undercover operative. We decline the offer to restrict the plain language of the statute in such a manner. Finally, one defendant contends that his sentence reflects an improper application of the Federal Sentencing Guidelines. We reject this contention.
In 1987, the Internal Revenue Service and the Federal Bureau of Investigation began a joint investigation into money laundering in New Orleans. The agencies established an undercover "sting" operation utilizing the services of Mr. Amado Hernandez, a "cooperating undercover source", who posed as a money manager for drug dealers. In January 1987, Mr. Hernandez met with Mr. Charles LeChasney in Atlanta, Georgia to discuss the possibility of laundering millions of dollars in drug money. Mr. LeChasney then sought the assistance of a New Orleans attorney, Mr. David Levy.
In April 1987, Mr. Hernandez, Mr. LeChasney, and Mr. Levy met in Miami to discuss the money laundering scheme. Mr. Hernandez explained to the others that they would be exchanging cash from drug traffickers. Mr. Levy informed Mr. Hernandez that he could deposit the cash in client trust accounts and give Mr. Hernandez checks drawn against these accounts. The three men discussed bank reporting requirements and Mr. Levy agreed that Mr. Hernandez's name would not be reported in any of the transactions. The men also agreed upon a six point fee for their services.
In May 1987, Mr. Hernandez and Mr. LeChasney met with Mr. Levy in New Orleans. Mr. Hernandez gave Mr. Levy $200,000 in cash (plus the $12,000 fee), and Mr. Levy gave Mr. Hernandez four checks totaling $200,000 drawn against one of Mr. Levy's trust accounts and signed by Mr. Levy. The cash was deposited into Mr. Levy's trust accounts over the next few days in the form of small (under $10,000) cash deposits or small cashier checks. Between May and October 1987, Mr. Levy and Mr. LeChasney laundered an additional $550,000 of cash from Mr. Hernandez, using the same basic cash for checks system utilized in the first transaction, and they received an additional $33,000 in fees.
In October 1987, Mr. Hernandez met in New York City with Mr. LeChasney, Mr. Levy, and Mr. Joe DiFlumera, an acquaintance of Mr. Levy. The men discussed laundering drug money through Mr. DiFlumera's contacts with American Airlines and Red Apple grocery stores. In November, Mr. Hernandez travelled to Boston to meet with Mr. DiFlumera. Mr. DiFlumera introduced Mr. Hernandez to Mr. Howard McNaughton, a food broker. The three men discussed a proposed money laundering operation in which Mr. DiFlumera would give Mr. Hernandez a personal check in exchange for the cash and the check would later be exchanged for a number of checks drawn against grocery accounts. The plan was to exchange cash for checks drawn on the grocery accounts, with Mr. DiFlumera's personal check serving as collateral until Mr. Hernandez received the grocery account checks. Mr. DiFlumera indicated to Mr. Hernandez that Mr. McNaughton would be in charge of the mechanics of the operation.
Over the next few weeks, Mr. Hernandez, Mr. DiFlumera, and Mr. McNaughton discussed the operation over the telephone. They agreed upon a ten point fee. The men finally agreed to make an exchange of $200,000 in Boston on December 18, 1987. On December 18, Mr. Hernandez travelled to Boston as arranged. He gave Mr. McNaughton and Mr. DiFlumera $200,000 in cash in exchange for sixteen checks totalling $200,000. Mr. McNaughton explained to Mr. Hernandez that grocery stores could deposit large amounts of cash because they were exempt from the reporting requirements, and therefore, there would be no reporting problems with these transactions.
In January 1988, Mr. Hernandez again travelled to Boston to meet with Mr. DiFlumera and Mr. McNaughton. Again they exchanged $200,000 in cash for several checks totalling $200,000. The men agreed to meet in ten days for another exchange. This meeting never occurred, however, because Mr. Hernandez's undercover role ended on January 27, 1988 when several of the defendants were arrested.
In October 1989, a federal grand jury returned a forty-count indictment against fourteen defendants, including the appellants Mr. David Levy and Mr. Howard McNaughton. Thirty-two counts of the indictment charged Mr. Levy with: (1) conspiring as a financial institution, and in exchange for a fee, unlawfully to evade federal monetary reporting requirements by failing to file required currency transaction reports, by structuring currency transactions, and by using interstate commerce to facilitate the commission of these crimes in violation of 18 U.S.C. § 371 (the conspiracy count); (2) participating in the affairs of a racketeering enterprise in violation of 18 U.S.C. § 1962(c) (the RICO count); (3) travelling in or using interstate commerce, or causing the use of interstate facilities in furtherance of a racketeering enterprise in violation of 18 U.S.C. §§ 2 and 1952(a)(3) (the Travel Act count); and (4) aiding and abetting the failure to file and report currency transactions and the structuring of currency transactions to evade reporting requirements in violation of 18 U.S.C. § 2 and 31 U.S.C. §§ 5313(a), 5322(b), and 5324 ().
Mr. McNaughton was charged in the conspiracy count, the RICO count, and in two separate Travel Act counts.
Six of the defendants entered into plea agreements with the government prior to trial, and the district court dismissed all charges against one of the defendants under a Rule 29 motion. After a two month trial, the jury considered the guilt of the remaining seven defendants and reached a guilty verdict with respect to three of them, the two appellants and one other defendant.
The defendants who appealed were convicted on all counts in which they were named. Mr. Levy was sentenced to a total of seventy months imprisonment and three years of supervised release. Mr. McNaughton was sentenced to a total of twenty-four months imprisonment and three years supervised release. This appeal followed.
The Currency Transaction Reporting Act, 31 U.S.C. § 5313, authorizes the Secretary of the Treasury to issue regulations requiring that domestic financial institutions report certain domestic currency transactions. Pursuant to this authority, the Secretary promulgated 31 C.F.R. § 103.22(a)(1) which requires that
[e]ach financial institution ... shall file a report of each deposit, withdrawal, exchange of currency or other payment or transfer, by, through, or to such financial institution which involves a transaction in currency of more than $10,000.
Almost all of the counts against the defendants were based on the failure to file currency transaction reports (CTRs) with respect to the cash for checks transactions. Mr. Levy and Mr. McNaughton contend on appeal that they had no obligation to file CTRs because the transactions in which they engaged did not make them "financial institutions".
Definitions of the term "financial institution" are found in the statute and in the regulations issued by the Secretary under the statute. The defendants' first argument is that their activities do not fit within the definition of "financial institution" found in the regulations. Their second argument is that, if their activities do fit within that definition, then the Secretary of the Treasury exceeded his authority under the statute by impermissibly enlarging the meaning of "financial institution".
"Financial institution" is defined in the regulations as including
[e]ach agent, agency, branch, or office within the United States of any person doing business, whether or not on a regular basis or as an organized business concern, in one or more of the capacities listed below:
* * * * * *
(3) A currency dealer or exchanger, including a person engaged in the business of a check casher. 1
The defendants contend that they do not fall within this definition because a "currency dealer or exchanger" must be involved in the exchange of foreign currency. This argument is without merit.
The term "currency dealer or exchanger" is defined in the regulations as "[a] person who engages as a business in dealing in or exchanging currency, except for banks which offer such services as an adjunct to their regular services" 2.
"Currency" is defined in the regulations as
[t]he coin and paper money of the United States or of any other country that is designated as legal tender and that circulates and is customarily used and accepted...
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