U.S. v. Nall

• Decision Date: 12 November 1991
• Docket Number: Nos. 90-2220,90-2221 and 90-2271,s. 90-2220
• Citation: 949 F.2d 301
• Parties: UNITED STATES of America, Plaintiff/Appellant/Cross-Appellee, v. Robert NALL, Defendant/Appellee/ Cross-Appellant, and Robert McIntosh, Defendant/Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 301

949 F.2d 301

UNITED STATES of America, Plaintiff/Appellant/Cross-Appellee, v. Robert NALL, Defendant/Appellee/ Cross-Appellant and Robert McIntosh, Defendant/Appellee.

Nos. 90-2220, 90-2221 and 90-2271.

United States Court of Appeals Tenth Circuit.

Nov. 12, 1991.

Paula G. Burnett, Asst. U.S. Atty., Albuquerque, N.M. (William L. Lutz, U.S. Atty., with her on the brief), for plaintiff/appellant/cross-appellee.

James B. Foy, Silver City, N.M., for defendant/appellee/cross-appellant Nall.

Joseph A. Calamia, El Paso, Tex. (Joseph 'Sib' Abraham, Jr., with him on the brief), for defendant/appellee McIntosh.

Before HOLLOWAY, LOGAN and BALDOCK, Circuit Judges.

HOLLOWAY, Circuit Judge.

I

On March 14, 1990, a five count indictment was returned by a New Mexico federal grand jury, with Count I charging Robert H. Nall, Jr. and Robert L. McIntosh with conspiracy to evade the reporting requirements of 31 U.S.C. § 5324(3) by avoiding a bank's filing of a Currency Transaction Report (CTR) as required by 31 U.S.C. § 5313(a), in violation of 18 U.S.C. § 371. Counts II through V were substantive counts charging only Nall and they were based on specific transactions, each of which was charged as a structuring of a transaction to evade the reporting requirements, 31 U.S.C. § 5324(3). ¹

At jury trial, counsel for both Nall and McIntosh made oral motions for judgment of acquittal, under Fed.R.Crim.P. 29(a), following the government's completion of its case in chief. I R. 190-94. Both motions were denied. After all the evidence was presented, both defendants again made oral motions for judgment of acquittal under Fed.R.Crim.P. 29(a), which were denied by the court. Id. at 243-44. On August 29, 1990, the jury returned a verdict of guilty against both defendants.

Defendant McIntosh filed a motion for judgment of acquittal pursuant to Fed.R.Crim.P. 29(c) as to Count I, the only count on which he had been indicted and convicted. Nall filed a similar motion regarding all five counts. On September 11, 1990, the trial judge issued a Memorandum Opinion and Order dismissing Count I, charging conspiracy, as to both Nall and McIntosh, but denying Nall's motion for acquittal as to Counts II through V. I Pl.R.Doc. 37. The dismissal of Count I was due to the fact that "the Government's proof did not establish a conspiracy beyond reasonable doubt." Id. at 5. Since McIntosh was only charged with and convicted on Count I, the dismissal of this count released him from any conviction.

The government filed a notice of appeal of the dismissal of Count I as to both Nall and McIntosh on October 9, 1990, pursuant to 18 U.S.C. § 3731. I Pl.R.Doc. 38. Judgment and sentence for Counts II through V was entered against Nall on November 21, 1990, and he was sentenced to five months on each count, all to be served concurrently with an additional two years of supervised release, provided that five months of the release was to be spent as a resident at the Alternative House of El Paso, Texas. ² This sentence was the result of the trial court's departure downward one offense level, pursuant to § 5K2.0 of the Sentencing Guidelines. ³ Nall filed a notice of appeal

                regarding Counts II through V on December 3, 1990.   The appeal of the United States as to Count I of the indictment and the appeal of Nall as to Counts II through V have been consolidated and will be considered by this opinion
                

II

There was evidence at trial tending to show the following:

In April 1989, Robert McIntosh, identifying himself as Tony DeSantio, ⁴ agreed to purchase Nall's business in Las Cruces, New Mexico, The Hitching Post, along with a residence on the same property for $185,000. An earnest money payment of $9,000 was to be made and followed up by several installment payments for a total down payment of $85,000. Gregg Floyd (Floyd), vice-president of Las Cruces Abstract and Title, handled the paperwork on the sale for Nall.

Floyd, a government witness, testified that on April 3, 1989, McIntosh and Nall met with Floyd at his office to begin the purchasing process. I R. 66. At this meeting, $9,000 was deposited with Las Cruces Abstract and Title Company as earnest money. Floyd said that in the future he would prefer a cashier's check. Floyd also told Nall and McIntosh at that April 3 meeting that if currency were brought in, there would have to be an IRS reporting form filled out by the title company for the currency reporting. I R. 63, 67. A receipt was made out showing that the title company had received $9,000 in earnest money. I R. 69.

After this first payment was made, Nall asked McIntosh for additional money on the down payment and McIntosh paid Nall $26,000 in one lump sum. I R. 53-54. ⁵ Floyd testified that on June 28 in a meeting with Nall and McIntosh, Floyd was told that $26,000 had already been paid by McIntosh to Nall before the closing. I R. 74. Executive vice-president Morrow of Sunwest Bank testified for the government that cash-in tickets indicated that three cash payments totaling $24,000 were made by the customer on Nall's note: one on June 9, 1989 of $9,000; a second on June 12, 1989 of $9,000; and a third payment on June 15, 1989 of $6,000. I R. 163-65.

Floyd testified further that on June 28, 1989, Nall, McIntosh and Floyd met to close the sale. McIntosh brought $50,000 in currency. A receipt was prepared by Floyd showing $50,000 had been paid by McIntosh to Nall. I R. 73-74. Floyd said that the preparation of the paperwork would take several hours. McIntosh asked Floyd if he could leave the money with him and Floyd said that if the money were left with him he would have the IRS forms filled out. I R. 70. McIntosh did not want any forms filled out. I R. 71. Nall said he would pay the mortgage off; he would go directly down and take care of that. I R. 72. Floyd testified: "What I recall is [McIntosh] did not want Mr. Nall to put all the money directly down, to put it in amounts less than ten thousand at a time to pay on the mortgage." I R. 72. McIntosh said the reason for this was so there would be no report made for any transaction of ten thousand. I R. 72. Nall said he thought there would be no problem with putting it in amounts less than $10,000 at a time. I R. 73. After the $50,000 was turned over to Nall, McIntosh and Nall left the Las Cruces Abstract and Title Company office together. I R. 74.

On cross-examination, government witness Floyd said that when McIntosh and Nall left the title company office, it was Floyd's firm understanding that the money was going to the Sunwest Bank to pay off the note, which was in excess of $50,000 pertaining to the property. I R. 96-97. On redirect examination, Floyd was asked to reconcile his statements about what was to happen to the $50,000 and Floyd said that his "best recollection I have at that time On Government Exhibit 7, there was a credit of $8,000 shown to Nall's account on June 28. I R. 167.

                there wasn't a definite agreement to pay the money in one lump sum."   I R. 100
                

Morrow testified further that on June 28 he and Anderson, another bank officer, told Nall's wife Kathy that they would not accept any more cash payments unless all the balance of the cash was applied to the note and a currency transaction report was filled out. I R. 168. The next morning Kathy brought the $42,000 in and the bank applied it to the note on June 29, 1989, and "we filled out the proper paperwork." I R. 169. Government Exhibit 9 was identified by Morrow as the currency transaction report, filled out on June 29, that the $42,000 in cash had been received. I R. 170.

Defendant Nall presented testimony by several witnesses explaining why his payments to the bank were made in the amounts he paid and why other funds were retained by him. He had an antique car business and the witnesses' testimony was introduced to show that he withheld funds to make favorable purchases of cars for his antique car inventory.

As noted, the trial judge granted the defendants' motions for judgments of acquittal as to Count I on the conspiracy charge, but entered judgments of convictions and sentences as to Nall on Counts II, III, IV and V. We turn to the arguments pressed on appeal.

III Count I--Conspiracy

The district court dismissed the Count I charge against McIntosh and Nall after the jury returned a verdict of guilty as to both defendants. The court found there to be insufficient evidence as a matter of law for the jury to make its finding of guilt. The government argues that the district court erred in its dismissal of Count I because there was sufficient evidence to prove the existence of a conspiracy between Nall and McIntosh to evade the CTR requirements. ⁶

We review the district court's determination de novo. A conviction by jury verdict is to be reviewed with the evidence, both direct and circumstantial, along with the reasonable inferences to be drawn therefrom, taken in the light most favorable to the verdict. 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). In this light, the court determines whether a reasonable jury could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); United States v. Bowie, 892 F.2d 1494, 1497 (10th Cir.1990); Hooks, 780 F.2d at 1531.

There are five elements which must be present to establish a conspiracy under 18 U.S.C. § 371: there must be an agreement; the purpose of that agreement must be to break the law; there must be an overt act; the purpose of the act must be to further the conspiracy; and the defendant on trial must have entered the conspiracy willfully. United States v. Daily, 921 F.2d 994, 999 (10th Cir.1991). The nature of a conspiracy, with its attendant aspects of secrecy, often requires that elements of the crime be established by circumstantial evidence. United States v. Pilling, 721 F.2d 286,...