U.S. v. Lovett, 91-6088

• Decision Date: 19 May 1992
• Docket Number: No. 91-6088,91-6088
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Aaron Keith LOVETT, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1029

964 F.2d 1029

UNITED STATES of America, Plaintiff-Appellee, v. Aaron Keith LOVETT, Defendant-Appellant.

No. 91-6088.

United States Court of Appeals Tenth Circuit.

May 19, 1992.

Susan L. Foreman, Asst. Federal Public Defender, Denver, Colo. (Michael G. Katz, Federal Public Defender, with her on the briefs), for defendant-appellant.

James F. Robinson, Asst. U.S. Atty., Oklahoma City, Okl. (Timothy D. Leonard, U.S. Atty., with him on the brief), for plaintiff-appellee.

Before ANDERSON, ALDISERT ^* and TACHA, Circuit Judges.

TACHA, Circuit Judge.

On December 20, 1990, a jury convicted the defendant, Aaron Keith Lovett, of nine counts of Interstate Transportation of Fraudulently Obtained Funds in violation of 18 U.S.C. § 2314, fifteen counts of Monetary Transactions in Property Derived from Unlawful Activity in violation of 18 U.S.C. § 1957, and four counts of Money Laundering in violation of 18 U.S.C. § 1956. In addition, the jury ordered the forfeiture of the items of property described in Counts 31-35 pursuant to 18 U.S.C. § 982. On appeal, the defendant argues that (1) there is insufficient evidence of concealment or disguise to support his conviction on each of the four money laundering counts; (2) as to six of the fifteen counts alleging a violation of 18 U.S.C. § 1957(a), the evidence of exchange is insufficient to support his conviction; (3) evidence of interstate commerce is insufficient to support federal jurisdiction for eight of the fifteen counts that alleged a violation of § 1957(a); (4) the judge failed to properly instruct the jury on the fifteen counts that alleged a violation of § 1957(a); (5) evidence of fraud is insufficient to support a conviction on each of the nine counts alleging violations of 18 U.S.C. § 2314; (6) even if evidence of fraud is sufficient, the defendant should have been convicted of only five counts of violating § 2314; (7) the district court violated the defendant's rights against double jeopardy by imposing separate judgments and convictions for the § 2314 counts and the § 1957 counts; and (8) the district court erred by ordering the defendant to pay special assessments on the forfeiture counts. We exercise jurisdiction under 28 U.S.C. § 1291 and affirm in part and reverse in part.

I.

Viewed in the light most favorable to the government, the record reveals the following facts. When Aaron Keith Lovett was only two years old, he lost contact with his paternal grandmother, Rubylea Hall. Years later, in 1985, Lovett was reunited with his grandmother, who was living alone in Wichita Falls, Texas. Mrs. Hall maintained at least ten bank accounts in Wichita Falls, with a combined balance exceeding $300,000. By July 31, 1990, only $2,200 remained in one checking account. The rest of the money--approximately $316,000--had been moved from Mrs. Hall's accounts in Texas to her grandson's accounts in Oklahoma.

Lovett visited Mrs. Hall regularly between 1985 and 1990. Mrs. Hall placed Lovett's name on some of her bank accounts, but she retained control of the accounts. In April, 1990, Mrs. Hall signed a power of attorney that gave Lovett authority over $21,000 held in her retirement fund at Rolling Meadows Retirement House. This same month, Mrs. Hall learned she had colon cancer and needed surgery. On April 27, 1990, Mrs. Hall executed a will, leaving the bulk of her estate to Lovett upon her death. Anticipating that she might become incapacitated, Mrs. Hall authorized changes on several of her accounts before undergoing surgery. She added Lovett's name to several of her checking accounts and certificates of deposit. After the surgery, Lovett insisted that Mrs. Hall return with him to his house in Oklahoma City to recuperate. Mrs. Hall intended to stay no more than a week, but ended up staying several months.

While Mrs. Hall was staying with him, Lovett withdrew almost all of the money from her accounts. He accomplished these withdrawals both personally--for the accounts on which Mrs. Hall had previously made him co-owner--and also by utilizing letters signed by Mrs. Hall directing the banks to close her accounts and release the money to Lovett. Altogether, Mrs. Hall signed eight letters of withdrawal. At trial, however, Mrs. Hall denied ever signing documents allowing the transfer of her funds. She testified that Lovett had her sign several documents and told her that they were Medicare payments or other "non-important" documents. Mrs. Hall was nearly blind and could not see or read anything that she was asked to sign.

Lovett deposited the money withdrawn from Mrs. Hall's accounts into two accounts in Oklahoma City. Lovett then transferred much of the money to six additional accounts at six different banks in Oklahoma City. None of the accounts listed Mrs. Hall as the owner. Instead, the accounts listed Lovett and his wife as owners. Lovett made several large purchases with the funds; he purchased a house, a 1990 GMC Suburban, a 1990 GMC Sierra pickup truck and a large gold and diamond ring.

Internal Revenue Service agents detected Lovett's actions when he made multiple cash transactions at five Oklahoma City banks. Criminal charges were presented to the grand jury. Counts 2-10 of the indictment against Lovett charged him with transporting monies obtained by fraud from Texas to Oklahoma in violation of 18 U.S.C. § 2314. For depositing the funds into Oklahoma banks, and for subsequent transfers of the funds to other Oklahoma banks, Lovett was charged in Counts 11-15 and 17-26 with violating 18 U.S.C. § 1957. Counts 27-30 charged Lovett with laundering the fraudulently obtained funds through the purchase of a house, a GMC Suburban, a GMC pickup truck and a ring. Counts 31-35 sought the forfeiture of the properties that Lovett purchased with illegally obtained monies.

II.

Lovett challenges the sufficiency of the evidence related to Counts 27, 28, 29 and 30, which charged him with money laundering in violation of 18 U.S.C. § 1956(a)(1)(B)(i). ¹ Our review of the sufficiency of the evidence to support a criminal conviction is limited to whether "[t]he evidence--both direct and circumstantial, together with reasonable inferences to be drawn therefrom--is sufficient ... when taken in the light most favorable to the government" for a reasonable jury to find the defendant guilty beyond a reasonable doubt. United States v. Hooks, 780 F.2d 1526, 1531 (10th Cir.), cert. denied, 475 U.S. 1128, 106 S.Ct. 1657, 90 L.Ed.2d 199 (1986). We must find that substantial evidence supports the conviction; " 'that is, [the evidence presented to support the conviction] must do more than raise a mere suspicion of guilt.' " United States v. Sanders, 929 F.2d 1466, 1470 (10th Cir.) (quoting United States v. Brandon, 847 F.2d 625, 630 (10th Cir.), cert. denied, 488 U.S. 973, 109 S.Ct. 510, 102 L.Ed.2d 545 (1988)) (further citations omitted), cert. denied, --- U.S. ----, 112 S.Ct. 143, 116 L.Ed.2d 109 (1991).

Lovett's money laundering convictions are based on four separate purchases: a GMC pickup truck (Count 28), a house (Count 29), a GMC Suburban (Count 27), and a ring (Count 30). Lovett argues that there is insufficient evidence that these four purchases were transactions designed "to conceal or disguise the nature, the location, the source, the ownership, or the control of the proceeds." See § 1956(a)(1)(B)(i). Based on our holding in United States v. Sanders, 929 F.2d 1466 (10th Cir.1991), Lovett argues that because he participated personally in every transaction, paid with a personal check unless otherwise required, and conspicuously utilized all of the items purchased, ² we must reverse each of his money laundering convictions for lack of evidence of intent to "disguise the relationship of the item purchased with the person providing the proceeds." Id. at 1472.

In Sanders, we reversed the money laundering convictions of a defendant who used the proceeds of a drug transaction to purchase two cars. Id. Because the defendant and her husband personally purchased the cars, were readily identified by the salesperson, and conspicuously used both cars, we held that there was insufficient evidence of concealment. Id. at 1471-72. We rejected the government's suggestion that the money laundering statute should be "broadly interpreted to include all purchases made by persons with knowledge that the money used for the transaction represents the proceeds of illegal activity." Id. We noted that

the purpose of the money laundering statute is to reach commercial transactions intended (at least in part) to disguise the relationship of the item purchased with the person providing the proceeds and that the proceeds used to make the purchase were obtained from illegal activities.

Id. at 1472.

A. The Pickup Truck

The defendant purchased the pickup truck for his brother, James Lovett, on July 30, 1990. Together, the brothers selected the pickup at the Jackie Cooper Olds/GMC dealership. The defendant personally negotiated the sales price with the salesman--the same salesman from whom he purchased a GMC Suburban several days earlier. The defendant, himself, then tendered a personal check, drawn on his account at Local Federal Savings & Loan, for the full purchase price of $18,426.52.

The trial transcript reveals several facts that distinguish the purchase of the pickup from the purchase of the cars in Sanders. According to James Lovett's testimony, the defendant specifically instructed James not to tell their grandmother (Mrs. Hall) about the purchase of the pickup. James further testified that long before the purchase of the truck--while their grandmother was still staying at the defendant's house--James called the defendant to inquire about their grandmother. James and the defendant argued on the phone. James testified that he "knew that ... grandmother shouldn't be down there" and that he "didn't know what [the defendant] was doing." Consequently, James threatened to bring an attorney and an...