U.S. v. Puerto, 82-6019

• Decision Date: 20 April 1984
• Docket Number: No. 82-6019,82-6019
• Citation: 730 F.2d 627
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Manuel Ronald PUERTO, Edgar Gilberto Puerto, L. Jean Everett, a/k/a Jean Kendall, Defendants-Appellants.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 627

730 F.2d 627

UNITED STATES of America, Plaintiff-Appellee, v. Manuel Ronald PUERTO, Edgar Gilberto Puerto, L. Jean Everett, a/k/a Jean Kendall, Defendants-Appellants.

No. 82-6019.

United States Court of Appeals Eleventh Circuit.

April 20, 1984.

Fine, Jacobs, Block, Klein, Colan & Simon, PA, Theodore Klein, Joseph Serota, Miami, Fla., for Manuel Puerto and Edgar Puerto.

Robyn J. Hermann, Deputy Federal Public Defender, Charles Auslander, Asst. Federal Public Defender, Miami, Fla., for Everett.

Stanley Marcus, U.S. Atty., Vera E. Gilford, Sonia O'Donnell, Asst. U.S. Attys., Miami, Fla., for plaintiff-appellee.

Appeals from the United States District Court for the Southern District of Florida.

Before HILL and HATCHETT, Circuit Judges, and ALLGOOD ^*, District Judge.

HATCHETT, Circuit Judge:

In this case we determine whether the evidence is sufficient to sustain the convictions of appellants for causing a financial institution to fail to file Currency Transaction Reports. We find the evidence sufficient and affirm.

Facts

This case arises out of activity occurring between October, 1980, and December, 1980, when L. Jean Everett worked at the Merchants Bank of Miami as a head teller. Edgar Puerto and Manuel Puerto were customers of the bank. Perla Abaroa, a key witness for the government, was a collections teller at the bank.

Manuel Puerto approached Abaroa in the fall of 1980 and asked her to sell him cashier's checks for large sums of cash. The Puertos told her to use fictitious names and draw the cashier's checks in those names. Regarding the filing of Currency Transaction Reports (CTRs), Abaroa stated:

I told them that anything over $10,000 would have to be reported, and that if I was ever caught in this, what was I to do, since they were fictitious names? He told me to make reports out under the names of the checks ... he just said if they can be filed under the names of the issued cashier's checks, under the people I made them out to, but he did not want to be involved in anything. He did not want his name to appear on anything.

Manuel and Edgar Puerto were given a duplicate set of Abaroa's automobile keys to facilitate delivery of the money to the trunk of her automobile. The Puertos would telephone Abaroa to inform her of the delivery of the money. Abaroa would retrieve the briefcase with the money from her automobile and take the money into the bank where she would give the briefcase to Everett. Everett would count and verify the amount of money and return it to Abaroa. Once or twice Abaroa received a cash tip (approximately $2,000 found in the trunk of her automobile), which she shared with Everett. After telling Everett about her conversations with the Puertos, Everett's response was: "Be careful, I would not do that if I were you. Just be careful."

Clark Drapes, management analyst with the Internal Revenue Service (IRS) responsible for coordinating the CTRs, testified that during the time period the Puertos had United States currency in excess of $10,000 exchanged for cashier's checks, no CTRs were filed in the name of Edgar, Manuel, or Martha Puerto.

The charges brought against the Puertos and Everett arose from those federal statutes and regulations concerning the duty of a financial institution to file documents known as Currency Transaction Reports with the IRS as required by law. ¹ A CTR is a report filed by a bank whenever a transaction occurs involving cash over $10,000. The relevant regulation provides:

Each financial institution 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. Such reports shall be made on forms prescribed by the Secretary and all information called for in the forms shall be furnished.

Title 31 C.F.R. Sec. 103.22(a) (1983). At the Merchants Bank of Miami, the procedure for filing CTRs was for the bank tellers to acquire basic information from the customer involved in the transaction and forward that information to Charlotte Giordano, vice president in charge of personnel. Giordano would then complete the CTR and file it with the IRS in Ogden, Utah.

Manuel Puerto, in the presence of Edgar Puerto, told Abaroa, the bank teller, to sell him cashier's checks in sums over $10,000, yet send to Giordano false information concerning the transaction. The Puertos insisted that the CTRs be filed under the fictitious names on the cashier's checks. Abaroa, on her own, chose not to pass on any information to Giordano. ² Consequently, the bank filed no CTRs concerning the transactions with the Puertos.

The grand jury charged, by indictment, the Puertos and Everett with the following offenses: (1) conspiracy to unlawfully defraud the United States, in particular, the Internal Revenue Service, by impairing, obstructing, and defeating its lawful government functions of the collection of data and reports of currency transactions in excess of $10,000, in violation of 18 U.S.C.A. Sec. 371 (West 1966), (2) falsifying and concealing by scheme and device material facts within the jurisdiction of an agency or a department of the United States, that is, the Internal Revenue Service of the Department of Treasury, in violation of 18 U.S.C.A. Secs. 1001 and 2(b) (West 1966), (3) intentionally failing to file and causing the failure to file of CTRs with the Internal Revenue Service in connection with the transactions of United States currency in excess of $10,000, as part of a pattern of illegal activity involving transactions exceeding $100,000 in a 12-month period, in violation of 31 U.S.C.S. Secs. 1059 and 1081 (Law.Co-op.1979), 18 U.S.C.A. Sec. 2 (West 1966), and 31 C.F.R. Secs. 103.22(a) and 103.25(a) (1983).

At the close of the government's case and at the close of the case the Puertos and Everett moved for judgment of acquittal. The motions were denied. The jury returned guilty verdicts on all three counts against Everett and the Puertos, but acquitted Martha Puerto.

We must determine whether the evidence was sufficient to find the Puertos and Everett guilty of all three counts in the indictment.

Discussion

The Puertos and Everett first contend that the evidence presented at trial is insufficient to prove beyond a reasonable doubt that they conspired to defraud the United States in violation of 18 U.S.C.A. Sec. 371. ³

The Fifth Circuit stated the standard by which a court must review a sufficiency of the evidence claim when it held:

It is not necessary that the evidence exclude every reasonable hypothesis of innocence or be wholly inconsistent with every conclusion except that of guilt, provided a reasonable trier of fact could find that the evidence establishes guilt beyond a reasonable doubt. A jury is free to choose among reasonable constructions of the evidence.

United States v. Bell, 678 F.2d 547, 549 (5th Cir. Unit B 1982) (en banc), aff'd on other grounds, --- U.S. ----, 103 S.Ct. 2398, 76 L.Ed.2d 638 (1983).

In applying this standard all reasonable inferences and credibility choices must be made in favor of the jury verdict, and that verdict must be sustained if there is substantial evidence to support it when the facts are viewed in the light most favorable to the government.

United States v. Davis, 666 F.2d 195, 201 (5th Cir. Unit B 1982). Title 18 U.S.C.A. Sec. 371 deals with conspiracies to commit offenses or to defraud the United States. The courts have held that in prosecutions under 18 U.S.C.A. Sec. 371, the government is required to prove an agreement to defraud the United States and that one or more persons acted in furtherance of that objective. United States v. Browning, 723 F.2d 1544 (11th Cir.1984).

Because the essential nature of conspiracy is secrecy, such an agreement may be proved by circumstantial as well as direct evidence. United States v. Horton, 646 F.2d 181, 185 (5th Cir.1981); see United States v. Enstam, 622 F.2d 857, 863-64 (5th Cir.1980). In order for a reasonably minded jury to find that the defendant was a member of the conspiracy, 'the government must have shown beyond a reasonable doubt, if only by circumstantial evidence, that a conspiracy existed, that [the defendant] knew of it and that he intended to associate himself with the objectives of the conspiracy.' United States v. Horton, 646 F.2d at 185. The defendant may be found guilty of conspiracy if the evidence demonstrates that he knew the essential objectives of the conspiracy, even though he did not know all of its details or played only a minor role in the overall scheme. United States v. Alvarez, 625 F.2d 1196, 1198 (5th Cir.1980) (en banc).

Browning, 723 F.2d at 1546.

The courts have held that a conspiracy to submit false or misleading affidavits to a government agency in order to impede its lawful functions constitutes a violation of 18 U.S.C.A. Sec. 371. In re Sealed Case, 676 F.2d 793 (D.C.Cir.1982). Conspiracies in violation of section 371 need not cause any monetary loss to the government, so long as they interfere with or obstruct its lawful functions. Id. at 815. The Supreme Court held in Dennis v. United States, 384 U.S. 855, 860-61, 86 S.Ct. 1840, 1843-44, 16 L.Ed.2d 973 (1966), that section 371 reaches any conspiracy for the purpose of impairing, obstructing, or defeating the lawful function of any department of government.

To conspire to defraud the United States means primarily to cheat the government out of property or money, but it also means to interfere with or obstruct one of its lawful governmental functions by deceit, craft or trickery, or at least by means that are dishonest. It is not necessary that the government shall be subjected to property or pecuniary loss by the fraud, but only that its legitimate official action and purpose shall be defeated by misrepresentation, chicane, or the overreaching of those charged with carrying out the governmental intention.

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