U.S.A. v. Marshall

• Decision Date: 02 February 2001
• Docket Number: No. 99-4053,99-4053
• Citation: 248 F.3d 525
• Parties: (6th Cir. 2001) United States of America, Plaintiff-Appellee, v. Christopher Marshall, Defendant-Appellant. Argued:
• Court: U.S. Court of Appeals — Sixth Circuit

Page 525

248 F.3d 525 (6th Cir. 2001)

United States of America, Plaintiff-Appellee, v. Christopher Marshall, Defendant-Appellant.

No. 99-4053

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

Argued: February 2, 2001

Decided and Filed: April 25, 2001

Appeal from the United States District Court for the Northern District of Ohio at Cleveland. No. 98-00454, Lesley Brooks Wells, District Judge. [Copyrighted Material Omitted]

[Copyrighted Material Omitted] Gary D. Arbeznik, ASSISTANT UNITED STATES ATTORNEY, Cleveland, Ohio, Thomas M. Bauer, Asst. U.S. Atty., Akron, OH, for Appellee.

Margaret S. O'Donnell, McNALLY & O'DONNELL, Frankfort, Kentucky, for Appellant.

Before: DAUGHTREY and GILMAN, Circuit Judges; COLLIER, District Judge^*

RONALD LEE GILMAN, Circuit Judge.

OPINION

This case involves the theft of $60,000 from a bank's automated teller machine (ATM) by Christopher Marshall, a Pinkerton Security Company courier. Marshall was convicted on two counts of bank larceny and possessing stolen money in violation of 18 U.S.C. § 2113(b) and § 2113(c), one count of engaging in an unlawful monetary transaction exceeding $10,000 in violation of 18 U.S.C. § 1957, three counts of money laundering in violation of 18 U.S.C. §1956(a)(1)(B)(i), and one count of filing a false statement on a federal currency transaction report in violation of 31 U.S.C. § 5313 and § 5324(a)(2). He was sentenced to 36 months of imprisonment on each count, to be served concurrently, with a 3-year period of supervision after his release. For the reasons set for below, we VACATE his three 18 U.S.C. § 1956(a)(1)(B)(i) money-laundering convictions and, with the consent of the government, we alsoVACATE Marshall's 18 U.S.C. § 2113(c) conviction. These counts of the indictment are REMANDED to the district court for entry of a judgment of acquittal. We AFFIRM the remaining three convictions.

I. BACKGROUND

A. Factual background

Society Bank (now known as Key Bank) had a contract with Pinkerton to maintain the cash supply of Society's ATMs. Marshall, along with his partner Jim Myers, were Pinkerton couriers who performed ATM maintenance throughout the Akron-Canton area in Ohio. Together they serviced between ten and twelve locations each day.

The procedures for servicing each ATM were rather elaborate, as was the system for accessing the ATM vault. At each machine being serviced, the pair of couriers would have a master key, allowing entry into the restricted-access portion of the ATM building. Once the outside door was opened, the couriers had to punch in a security code to disarm the alarm system. The couriers were then required to call a central ATM security service in Dayton in order to identify themselves and advise the service of their presence at the ATM. Once inside the ATM building, the couriers opened the ATM vault. This was done by using a combination lock unique to each ATM, adjusting the handle in a specific manner, and inserting a vault combination key into the vault door dial to allow the door to release. The moment it was opened, the security service in Dayton was alerted by an electronic signal notifying the service that the vault had been accessed.

Marshall and Myers serviced the ATM at the Cuyahoga Falls Avenue location of the Society Bank ATM on December 31, 1993. After performing their various duties, they left $90,000 of "extra money" in the vault, a practice that allows the ATM to be serviced after normal banking hours. Marshall testified at trial that this was an unusually large amount of extra money to leave in the vault. This extra money had been prepackaged into bricks at the bank. Each brick contained 1,000 bills, and was individually packaged in shrinkwrap plastic. Three of the bricks contained $20,000 each in $20 bills, and three of the bricks contained $10,000 each in $10 bills. Marshall testified that he placed the extra money in the vault without disturbing the plastic packaging. Once the servicing was complete, the vault was closed, the alarm was activated, and the outside door was locked.

Three days later, on January 2, 1994, the central ATM security service in Dayton recorded an electronic signal at 6:30 p.m., indicating that the vault at Society Bank's Cuyahoga Falls ATM had been accessed. The signal showed that the vault door remained open for 28 seconds, was closed, and then reopened for good 6 seconds later. Although the ATM security service is supposed to respond to and investigate unauthorized openings of the vault, no such action was taken. Tina Adolphson was the first person to use the ATM after it was opened on January 2, 1994. At trial, Adolphson testified that she noticed that the ATM restricted-access door was ajar when she was conducting her transaction, but that she did not see anyone around the machine either before or after.

Marshall and Myers did not return to service the Cuyahoga Falls ATM again until the following day, January 3, 1994. Upon approaching the ATM, Myers noticed that the restricted-access door to the building had been left slightly ajar, but he saw no other person inside. After checking the vault, he realized that the three $20,000 bricks were missing. Myers testified at trial that there were no signs of forced entry on the ATM restricted-access door or the vault. Rather, the vault alarm had been deactivated. He also testified that the only physical evidence at the scene consisted of the plastic shrinkwrap that had been removed from the purloined money. The only intact fingerprints that were found on the discarded plastic belonged to Marshall.

Almost four years prior to this incident, Marshall had filed for bankruptcy. In the subsequent years, his annual reported income ranged from $11,697 to $23,855. He rarely had more than two thousand dollars in the bank and, as of December15, 1993, he had accumulated $2,025.83 in credit card debt. Immediately after the larceny, however, Marshall's finances improved dramatically. On January 3, 1994, Marshall deposited $1,200 cash into an account at the Ohio Savings Bank. Marshall bought a cashier's check that same day from First National Bank for $2,025.83, which he used to pay off his credit-card balance in full four days later. On January 4, 1994, Marshall made a cash deposit of $5,000 into his credit union account, bringing his balance to $5,021.05.

The following day, Marshall traveled from Akron to Cleveland to call on his step-brother, John Weston. Weston was an account executive at Olde Discount, a brokerage firm. Marshall had never been to Weston's office before this visit on January 5, 1994. Upon his arrival at Weston's office, Marshall told Weston that he wanted to invest money in "short term speculative aggressive trading." He implied that the money he wished to invest belonged to Robin Miller, Marshall's girlfriend. Marshall told Weston that he had $40,000 in cash located in the trunk of his car, to which Weston's first reaction was "what the hell is Robin doing with $40,000 in cash?" Weston told Marshall that he could not accept cash, and directed Marshall to obtain a cashier's check. Marshall then proceeded directly to a Bank One branch, where he told Jean Davis, a teller, that he wanted to exchange $40,000 in cash for a certified check payable to Olde Discount. Davis testified that the $40,000 was all in $20 bills.

Under federal law, currency-transaction reports must be completed for all bank transactions involving more than $10,000. See 31 C.F.R. § 103.22(b)(1) ("Each financial institution other than a casino 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"). Because of the amount involved, Davis called over her supervisor, Diane Aldridge. Aldridge told Marshall that she would have to speak with Weston to obtain identification, apparently to facilitate the completion of the transaction report. Marshall then stepped out of the teller line to use his cellular phone. He showed Aldridge a Florida driver's license with a Florida address, even though he also had an Ohio driver's license. Although Aldridge believed this to be an unusual transaction, she completed the report using the information that Marshall had provided.

In her testimony at Marshall's trial, Aldridge said that Marshall had told her that "[h]e was not the owner of this currency, and that he was merely dropping the money off for this other customer, John Weston, and it was not his money." After Marshall told her this, she spoke with Weston, accepted the cash, and gave Marshall a $40,000 cashier's check payable to Olde Discount. The currency transaction report, listing Weston as the owner of the cash, was then filed as an official bank record.

Marshall returned to Weston's office with the check, remarking that "one of the girls at the bank was awed by the fact that she had never seen so much money before in her life in $20s." At Marshall's direction, Weston opened a joint account with rights of survivorship, with Miller listed first and Marshall second. The joint account listed Miller's annual income as $50,000 and Marshall's as $7,000. Weston then used the account to purchase stocks. Subsequent to the account's creation, phone calls made by Weston to Miller, in order to discuss potential transactions, would be directed by Miller to Marshall, who would approve or disapprove of Weston's suggestions.

Marshall withdrew $7,000 from the brokerage account on January 17, 1994, which he used to purchase a Rolex watch a few weeks later. When Weston subsequently admired the watch, Marshall falsely told him that the Rolex had been a gift from Miller. Marshall also purchased a three-carat diamond tennis bracelet for $2,124 on February 11, 1994, and wine worth at least $1,700 on July 23 and July 28 of that same year. The bracelet and the wine were purchased with Marshall's credit card, the balance of which...