U.S. v. Loehr, 91-1655

• Decision Date: 24 July 1992
• Docket Number: No. 91-1655,91-1655
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Robert LOEHR, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 201

966 F.2d 201

UNITED STATES of America, Plaintiff-Appellee, v. Robert LOEHR, Defendant-Appellant.

No. 91-1655.

United States Court of Appeals, Sixth Circuit.

Argued Feb. 6, 1992.

Decided June 10, 1992.

Rehearing En Banc Denied

July 24, 1992.

Michael A. MacDonald, Asst. U.S. Atty. (argued and briefed), Office of the U.S. Atty., Grand Rapids, Mich., for plaintiff-appellee.

David A. Dodge (argued and briefed), Grand Rapids, Mich., for defendant-appellant.

Before: NELSON and BOGGS, Circuit Judges; and KRUPANSKY, Senior Circuit Judge.

KRUPANSKY, Senior Circuit Judge.

Appellant, Robert Loehr (defendant), appealed the district court's judgment convicting him of attempted money laundering in violation of 18 U.S.C. § 1956(a)(3)(B) and the imposed sentence of 41 months incarceration, two years of supervised release, and a mandatory special assessment fee of $50.00 pursuant to the November 1990 United States Sentencing Guidelines (U.S.S.G.). The defendant asserted several assignments of error on appeal.

The defendant was a car salesman in Grand Rapids, Michigan. Law enforcement personnel became aware of appellant from his past relationship with a convicted drug trafficker, Credell "Petey" Carpenter (Carpenter). Carpenter advised Special Agent Sanford Simons (Simons) that the defendant had sold him and his girlfriend, Chrystal Bell (Bell), vehicles in 1986 and 1987 knowing that they were purchased with the proceeds from drug transactions. Further, Carpenter revealed that Loehr knew him to be a drug dealer.

With the assistance of Carpenter and Bell, Simon initiated a "sting" investigation to determine if Loehr was laundering money through his employer's car dealership. The sting required that Carpenter and Bell attempt the purchase of an automobile after clearly informing the defendant that the purchase price was to be paid from drug proceeds. Further, the purchase required that Loehr title the vehicle in the name of a fictitious third party.

After he was contacted by Bell and Carpenter and advised that the vehicle would be purchased with drug money, the defendant agreed to sell Carpenter a selected automobile for cash without executing an IRS Form 8300 evidencing a cash sale in excess of $10,000 and to title the vehicle in a fictitious name. The defendant prepared the requisite paper work, i.e., a purchase agreement signed by Bell in a fictitious name. He presented the sales agreement to David Delaat, Jr. (Delaat, Jr.), the general manager of the automobile dealership, who typed the information onto the proper form and completed the other necessary purchase documentation, such as the state registration application, the odometer statement, and the temporary registration. Delaat, Jr. noted that the driver's license number and proof of insurance were missing.

On the day of the transaction, Bell arrived at the dealership with an undercover agent and gave the defendant $20,000 in cash. Loehr accepted the money and told Bell she could take possession of the car that day. Thereafter, Simon and another special agent entered the dealership and found the defendant in a windowless room where he was in the process of counting the money. Loehr was later indicted and charged with attempted money-laundering in violation of 18 U.S.C. § 1956(a)(3)(B).

During the jury trial, three witnesses testified concerning the paperwork required to complete an automobile transaction. Delaat, Jr. testified that when the purchase agreement was presented to him for typing, the transaction was completed. Craig Brockette, the owner of the dealership, stated that the transaction in the instant action was near completion. David Delaat, Sr., the business manager, testified that the transaction in the instant action was over 50% completed.

In order to prove that the defendant knew Carpenter and Bell in the past and that Carpenter was a drug dealer, the court permitted the testimony of various witnesses who described Loehr's past interactions with Carpenter. Agent Simon testified that in 1986 and 1987 the defendant worked at his father's car dealership where he met Carpenter and Bell. Joshua Simpson, who had previously worked with the defendant at his father's car dealership, testified that Loehr knew Carpenter was a drug trafficker and that the defendant and Carpenter had met during a car transaction in 1986 or 1987. Finally, Carpenter testified that he was a drug dealer and had met the defendant at his father's car dealership where he told Loehr that he was a drug dealer. The defendant objected to the foregoing testimony charging that it was evidence of prejudicial "similar acts" in violation of Rule 404(b) of the Federal Rules of Evidence. The court overruled the defendant's objections concluding that the evidence was probative to prove Loehr's intent to engage in the money-laundering scheme and his knowledge of the IRS requirement to file a form whenever a money transaction over $10,000 takes place.

The jury returned a verdict of guilty against the defendant. The court sentenced him to 41 months incarceration, two years of supervised release, and a mandatory special assessment fee pursuant to the November 1990 United States Sentencing Guidelines. During the sentencing hearing, the defendant asserted several objections to the presentence report, including the accuracy of the offense level computation and urged the court to depart downward from the guidelines. The court overruled his objections and determined that the defendant had a base offense level of 20 pursuant to U.S.S.G. § 2S1.1(a)(2). Thereafter, the court increased the offense level by three to account for specific offense characteristics pursuant to 2S1.1(b)(1). After allowing defense counsel time to present additional arguments, the court decided not to depart downwards from the guideline's sentence as requested by the defendant.

In his first assignment of error, the defendant argued that the evidence was not sufficient to prove that he performed one or more overt acts to constitute a substantial step toward the commission of the attempted money-laundering offense. In order to prove that a criminal offense was an attempt within the meaning of the statute here in issue, the government must prove that the individual charged intended to engage in the proscribed criminal activity and that the accused performed an overt act in furtherance of the criminal act proscribed by the statute. United States v. Pennyman, 889 F.2d 104, 106 (6th Cir.1989). The degree of a defendant's performance of a substantial act in furtherance of the illegal activity is a factual issue to be resolved according to the circumstances of each particular case. United States v. Joyce, 693 F.2d 838...