U.S. v. Palazzolo
| Decision Date | 26 December 1995 |
| Docket Number | Nos. 94-1364,94-1553,s. 94-1364 |
| Citation | 73 F.3d 363 |
| Parties | NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit. UNITED STATES of America, Plaintiff-Appellee, v. Anthony James PALAZZOLO and Richard Rosenbaum, Defendants-Appellants. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Before: LIVELY, RYAN and SILER, Circuit Judges.
Two jointly-tried defendants appeal from their jury convictions for conspiracy to launder money that was proceeds of drug violations, to structure transactions to avoid triggering a bank's reporting requirements with respect to large cash deposits and to avoid filing financial disclosure forms required of businesses engaging in cash transactions. In addition, they appeal from their convictions for substantive offenses in carrying out the purposes of the conspiracy. This opinion addresses the defendants' appeals from convictions for the substantive offenses only, as we have decided the appeal from the conspiracy convictions in a published opinion released simultaneously with this opinion.
The issues on appeal are whether there was sufficient evidence to support the convictions for the substantive offenses, and whether statements by government counsel constituted prosecutorial misconduct of a degree to require reversal. One defendant also appeals from his sentence.
For the reasons that follow, we affirm the defendant Palazzolo's conviction, affirm in part and reverse in part the defendant Rosenbaum's conviction and remand for resentencing. We also find that some of the prosecutor's statements, while unjustified, were not sufficiently egregious or pervasive to require reversal.
In November of 1989, Corporal Dennis Travanut of the Royal Canadian Mounted Police met with Lorenzo Viviano, representing himself to be a heroin dealer interested in relocating his business to Windsor, Ontario. (Trans.Vol. II at 19-20) During one of several preliminary meetings with Viviano, Travanut revealed to Viviano elaborate details about his purported drug trafficking organization. (Trans.Vol. II at 58-61) Viviano introduced Travanut to the defendant Anthony Palazzolo in February of 1990. (Trans. Vol. II at 26)
The three met several more times and discussed various methods to launder money. On May 29, 1990, Palazzolo, Viviano and Travanut met in a Detroit, Michigan produce warehouse, where Palazzolo discussed with Travanut a money laundering scheme involving the exchange of small bills for large bills. (Trans.Vol. II at 69, 71-73; see Trans.Vol. II at 44-45) Travanut offered to pay a total of five "points" (i.e., percent commission) for Palazzolo's help with a $50,000 exchange. (Trans.Vol. II at 72) Travanut also confirmed during the meeting that Palazzolo would not "have to worry about banks or anything...." (Tape 1A at 3) Two attempts to launder money failed in June and July of 1990 because the suppliers of large bills failed to produce them.
A series of meetings and transactions in late summer and fall of 1990 resulted in successful exchanges. On August 24, Anthony Palazzolo told Travanut that he and his brother, Salvatore Palazzolo, knew a gold dealer who would help launder Travanut's small bills. (Trans.Vol. III at 6) During the meeting, Anthony Palazzolo announced that his brother would be involved in the laundering scheme and that they would "do it without [him]" because he was on parole and under police surveillance. (Tape 4A at 11; Trans.Vol. III at 10-13) Travanut met with Viviano a few days later and again discussed with Viviano his purported heroin trafficking ring. (Trans.Vol. III at 30-31) Viviano told Travanut that the gold dealer was willing to exchange $75,000 in cash for gold coins. (Trans.Vol. III at 29)
Travanut, Anthony Palazzolo and Viviano met in a downtown Detroit hotel room on August 31 to discuss the details of the cash-for-gold deal. (Trans.Vol. III at 33, 35) Palazzolo explained that the gold dealer would make out a receipt for the cash that would be destroyed when the gold was delivered so there would be no record of the transaction. (Trans.Vol. III at 36) They agreed on six points for the deal. (Tape 5A at 19) During the meeting, Travanut asked Palazzolo if he would like to join his heroin trafficking organization, to which Palazzolo responded that he "want[ed] nothin' to do with it." (Tape 5A at 5-6; Trans.Vol. III at 38-39, 48-49)
On September 24, Travanut gave $75,000 in small bills to Viviano at a Greyhound bus station. (Trans.Vol. III at 70) Viviano and Salvatore Palazzolo delivered the cash to Birmingham Stamp and Coin Shop, which was owned by the defendant Richard Rosenbaum. (Trans.Vol. III at 76; Trans.Vol. V at 147-48) Later that day, Travanut met with Viviano again and took from Viviano a "receipt" for the cash written on the back of Rosenbaum's business card and signed by Rosenbaum. (Trans.Vol. III at 46-47, 80) On September 25 and 26, Rosenbaum made cash deposits of $40,000 and $35,000, respectively, into his business bank account. (Trans.Vol. VI at 107, 109-10) On September 27, Travanut returned the "receipt" to Viviano and gave to Viviano $2,000, which Viviano said was Rosenbaum's share of the point money. (Trans.Vol. III at 84, 86-87) Travanut received the gold coins later that day and gave Viviano the balance of the point money. (Trans.Vol. III at 88, 97) In October of 1990, Viviano told Travanut that he could arrange a second transaction, and stated that he, Anthony and Salvatore Palazzolo, and the "gold guy" had shared the point money in the last transaction. (Trans.Vol. III at 101-02)
The second cash-for-gold transaction began on October 29 and proceeded in much the same way as the first. Travanut gave a bag containing $75,000 in small bills to Viviano. (Trans.Vol. III at 103-05) Viviano then drove to a restaurant where the Palazzolo brothers entered the car. (Trans.Vol. V at 215) After about three minutes, Anthony Palazzolo got out of the car, and Viviano and Salvatore Palazzolo drove to Rosenbaum's store. (Trans.Vol. V at 216) On October 30, Rosenbaum deposited $49,000 in cash and $14,000 in checks into his business account. (Trans.Vol. VI at 112-14) On the same day, $8,000 in cash was deposited into his personal account. (Trans.Vol. VI at 115) Again, Travanut received a "receipt" and had given $1,500 to Viviano purportedly for Rosenbaum's share of the points in advance of the gold delivery. (Trans.Vol. III at 106, 112-13)
Rosenbaum's business was exempt from currency transaction filing requirements, which require banks to report certain cash deposits, for cash deposits up to $50,000. (Trans.Vol. V at 108-09, 117) None of the transactions between Viviano and Rosenbaum were reported, either by way of the Internal Revenue Service (IRS) Form 8300 that Rosenbaum was required to file upon receipt of more than $10,000 in cash, or by way of the currency transaction reporting forms that Rosenbaum's bank would have filed had Rosenbaum not split up his cash deposits. (Trans.Vol. VI at 108, 110, 114-15; Trans.Vol. VII at 33-34, 46) Records reflecting a receipt of the money for those deposits were never found. (Trans.Vol. VII at 28-30) Travanut never met or talked with Rosenbaum, and no witness testified that Rosenbaum knew of Travanut's purported drug dealing.
In a 22-count indictment, Anthony Palazzolo was charged with the following: one count of conspiracy with three unlawful purposes (Count 1); three counts of money laundering (Counts 8, 11, 17); eight counts of interstate travel in aid of racketeering (ITAR) (Counts 3, 5, 7, 10, 13, 14, 19, 20); two counts of causing a failure to file Form 8300s (Counts 15, 21); and two counts of structuring transactions to avoid a bank's reporting requirements (Counts 16, 22). Rosenbaum was charged with being a member of the Count 1 conspiracy. He was also charged with two counts of money laundering, four ITAR counts, two counts of failing to file Form 8300s, and two counts of structuring transactions to avoid his bank's reporting requirements. Viviano pled guilty and did not testify at the trial.
After the close of the government's case, the district court denied Rosenbaum's motion for a judgment of acquittal on all counts charging him and Palazzolo's motion for acquittal on Counts 11 through 22. (Trans.Vol. VII at 94-99, 106) Between closing arguments and jury instructions, both defendants orally moved for a mistrial based on alleged misconduct during the government's closing argument. (Trans.Vol. VIII at 162-63) The court denied their motions, stating that curative instructions would be or had been given to the jury to protect the defendants sufficiently from prejudice. (Trans.Vol. VIII at 160-61)
The jury returned verdicts of guilty on all counts against Palazzolo and against Rosenbaum on all counts charging him except the ones accusing him of money laundering. The court later granted both defendants' motions for a new trial on the "structuring" charges because of an error in the jury instructions.
Palazzolo alleges that there was insufficient evidence to support a verdict against him on charges of laundering money believed to be drug proceeds (in violation of 18 U.S.C. Secs. 1956(a)(3)(B) and 2); interstate travel with intent to aid in laundering drug proceeds (in violation of 18 U.S.C. Secs. 1952(a)(3) and 2); and willfully causing the failure to file a Form 8300 (in violation of 26 U.S.C. Secs. 6050I(f)(1)(A), 7203; 18 U.S.C. Sec. 2). Rosenbaum challenges the sufficiency of the evidence to support his ITAR convictions and his convictions under 26 U.S.C. Secs. 6050I and 7203.
In reviewing the sufficiency of the evidence presented at trial, this court must view the evidence in the light most favorable to the government to determine whether "any rational trier of fact could...
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