U.S. v. Omoruyi
| Decision Date | 07 August 2001 |
| Docket Number | No. 00-4330,00-4330 |
| Citation | 260 F.3d 291 |
| Parties | (3rd Cir. 2001) UNITED STATES OF AMERICA, v. AUSTIN O. OMORUYI, A/K/A CHARLES OLORO A/K/A BOBBY PIERCE AUSTIN O. OMORUYI, APPELLANT |
| Court | U.S. Court of Appeals — Third Circuit |
On Appeal from the United States District Court for the Middle District of Pennsylvania (Criminal No. 00-00103-1) District Judge: Honorable Sylvia H. Rambo
James V. Wade Federal Public Defender Thomas A. Thornton (argued) Assistant Federal Public Defender 100 Chestnut Street, Suite 306 Harrisburg, PA 17101 Attorneys for Appellant
David M. Barasch United States Attorney Kim Douglas Daniel Assistant United States Attorney Theodore B. Smith (argued) Assistant United States Attorney P.O. Box 11754 Harrisburg, PA 17108 Attorneys for Appellee
Before: Sloviter, Alito, and Greenberg, Circuit Judges
This matter comes on before this court on Austin O. Omoruyi's appeal from a final judgment of conviction and sentence entered on December 12, 2000, on a 14-count indictment charging him with mail fraud affecting a financial institution and money laundering. Omoruyi pled guilty to the mail fraud counts and does not challenge his conviction or sentence on those counts. Rather, he limits his challenge to his conviction and sentence for money laundering, arguing that the evidence was insufficient to establish that he had committed that crime or, alternatively, that the district court erred by applying the money laundering rather than the fraud sentencing guidelines in calculating his sentence. Because we find that neither of Omoruyi's contentions has merit, we will affirm his conviction and sentence in all respects.
In February 1999, a person not known to the authorities stole seven blank "convenience checks" attached to the bottom of First USA credit card statements from the mail in Texas. Later, in April 1999, a similarly unknown person stole three blank American Express convenience checks from the mail in New York.
In approximately March and April 1999, Omoruyi opened three savings accounts at banks in the Middle District of Pennsylvania in the names of "Charles Oloro" or "Robert Pierce." Thereafter, all ten of the stolen checks were made payable to Pierce or Oloro in amounts varying between $5,100 and $9,890, and deposited in the savings accounts, nine via the mail and the tenth at a teller's window.1 Later, on May 6, 1999, a counterfeit commercial check drawn against a law firm's account at a New York City bank was mailed to one of the banks for deposit, but the bank never credited the account for the proceeds of the check because it was suspicious of the transaction.
After the banks credited the accounts with the deposits, Omoruyi began withdrawing funds from the accounts via automatic teller machine ("ATM") and teller window withdrawals.2 Most of the ATM withdrawals took place in New York and New Jersey, while most of the teller window withdrawals took place in Pennsylvania.
Ultimately, postal inspectors determined that Omoruyi was "Robert Pierce" and "Charles Oloro." Accordingly, they established a surveillance on a Brooklyn mail drop Omoruyi had opened. When Omoruyi arrived at the mail drop on June 1, 1999, the inspectors arrested him.
Following Omoruyi's arrest, the government first held him for prosecution in the United States District Court for the Southern District of New York on the charge of making his third illegal entry into the United States. On February 2, 2000, based on a conviction predicated on his plea of guilty, that court sentenced him to 51 months incarceration. Meanwhile, on July 21, 1999, postal inspectors filed a complaint in the Middle District of Pennsylvania charging Omoruyi with mail fraud. On March 29, 2000, a grand jury returned a 14-count indictment, charging Omoruyi with six counts of mail fraud affecting a financial institution and eight counts of money laundering. The six counts of mail fraud stemmed from the mailing of the counterfeit check as well as five of the ten checks to banks in the Harrisburg area. The money laundering counts were based on eight teller window withdrawals by Omoruyi, utilizing false identification, at Harrisburg-area banks.
On June 8, 2000, Omoruyi pled guilty to the mail fraud counts and submitted to a bench trial on the money laundering counts. The trial was premised almost entirely upon stipulated testimony and exhibits establishing that Omoruyi "opened [three] savings accounts and withdrew funds using the false names under which the savings accounts were established." Appellant's Br. at 6. After the court took the matter under advisement, on June 19, 2000, it found Omoruyi guilty on all eight money laundering counts.
On December 11, 2000, the court sentenced Omoruyi to 63 months incarceration on each mail fraud and money laundering count followed by three years of supervised release on each of these counts, and required him to pay $1,400 in special assessments and restitution in the amount of $31,209. The court ordered that the sentences run concurrently with each other as well as concurrently with Omoruyi's 51-month sentence imposed in the Southern District of New York. Thereafter, Omoruyi timely appealed to this court.
The district court had original jurisdiction over offenses against the United States pursuant to 18 U.S.C.S 3231. We have jurisdiction over an appeal of a final decision by a district court pursuant to 28 U.S.C. S 1291 and over an appeal of a final sentence in a criminal case pursuant to 18 U.S.C. S 3742(a).
Omoruyi contends first that there was insufficient evidence to establish the elements of money laundering because he did not conduct a financial transaction with "proceeds" of the mail fraud. He argues that the mail fraud was not complete, and therefore did not yield "proceeds" until he took possession of the cash credited to the accounts. Thus, in his view, the cash withdrawals could not serve as the basis for the money laundering counts. On this point, to the extent that the appeal involves legal determinations we exercise plenary review, but when the sufficiency of the evidence is challenged, we review the record to determine if there was substantial evidence to support the verdict. See United States v. Conley , 37 F.3d 970, 975 (3d Cir. 1994); United States v. Pungitore, 910 F.2d 1084, 1129 (3d Cir. 1990).3
On this appeal, we are concerned with the construction of 18 U.S.C. S 1956(a)(1) which defines illegal money laundering as:
Whoever, knowing that the property involved in a financial transaction represents the proceeds of some form of unlawful activity, conducts or attempts to conduct such a financial transaction which in fact involves the proceeds of specified unlawful activity--
(A)(i) with the intent to promote the carrying on of specified unlawful activity; or
(B) knowing that the transaction is designed in whole or in part --
(i) to conceal or disguise the nature, the location, the source, the ownership, or the control of the proceeds of specified unlawful activity . . . .
Accordingly, section 1956(a)(1) sets forth the four elements of a money laundering offense: (1) an actual or attempted financial transaction; (2) involving the proceeds of specified unlawful activity; (3) knowledge that the transaction involves the proceeds of some unlawful activity; and (4) either an intent to promote the carrying on of specified unlawful activity or knowledge that the transactions were designed in whole or in part to conceal the nature, location, source, ownership, or control of the proceeds of specified unlawful activity.4 See id. ; see also United States v. Morelli, 169 F.3d 798, 803 (3d Cir.), cert. denied, 528 U.S. 820, 120 S.Ct. 63 (1999).
In Conley, 37 F.3d at 978, we considered whether the deposit of illegal gambling proceeds could support a conviction for the money laundering object of a conspiracy. There the defendant argued that the government failed to establish the essential elements of money laundering because the conduct upon which the government based the charge was essentially the same as that supporting the illegal gambling charges. See id. We explained the defendant's contention as follows:
McGrath contends before us that a wide variety of transactions involving the money placed into the video poker machines is necessarily part of the illegal gambling business, including collecting and counting money, dividing up money, transferring and transporting money, depositing money into banks and withdrawing money from banks. McGrath contends that this same conduct cannot be properly alleged to be money laundering.
Id. We disagreed with the defendant's contentions. See id. at 978-79. In doing so, we acknowledged that "[o]bviously, whenever a defendant makes money from criminal activity he has something to do with it," and that "Congress did not enact money laundering statutes simply to add to the penalties for various crimes in which defendants make money." Id. at 979. But, we found that section 1956(a)(1) addressed this concern, and therefore delineated clearly between the underlying offense and the money laundering offense, by including an intent requirement. See id. We stated:
Section 1956(a)(1), quite clearly, does not prohibit all financial transactions that are conducted with the proceeds of specified unlawful activity. It only proscribes those transactions that are conducted with the intent to promote certain further illegal activity, under subsection (A), or that are designed to conceal under subsection (B).
These requirements would preclude the application of section 1956 to non-money laundering acts such as a defendant's depositing the proceeds of unlawful activity in a bank account in his own name and using the money for personal purposes.
Id. (citing United States v. Jackson, 935 F.2d 832 (7th Cir. 1991))....
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