U.S. v. Stavroulakis, 196

• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
• Citation: 952 F.2d 686
• Docket Number: No. 196,D,196
• Parties: UNITED STATES of America, Appellee, v. Nick STAVROULAKIS, Defendant-Appellant. ocket 91-1289.
• Decision Date: 03 January 1992

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952 F.2d 686 UNITED STATES of America, Appellee,
v.
Nick STAVROULAKIS, Defendant-Appellant. No. 196, Docket 91-1289. United States Court of Appeals,
Second Circuit. Argued Oct. 18, 1991.
Decided Jan. 3, 1992.

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Roger J. Bernstein, New York City (Bernstein & Miller, of counsel) for defendant-appellant.

Andrea M. Likwornik, Asst. U.S. Atty., S.D.N.Y. (Otto G. Obermaier, U.S. Atty. and Daniel C. Richman, Asst. U.S. Atty., S.D.N.Y., of counsel) for appellee.

Before KAUFMAN, KEARSE and McLAUGHLIN, Circuit Judges.

McLAUGHLIN, Circuit Judge:

Nick Stavroulakis appeals from his convictions on all counts of a four-count indictment. Count One charged, pursuant to 18 U.S.C. § 371, that Stavroulakis conspired with Kostas Giziakis to violate the money laundering statute (18 U.S.C. § 1956) by attempting to conceal the source of certain money alleged to be the proceeds of unlawful activity, and to avoid the currency reporting requirements of Title 31. Counts Two and Three charged Stavroulakis with bank fraud by engaging in a scheme or artifice to defraud a federally chartered or insured financial institution. 18 U.S.C. § 1344. Count Four charged defendant with uttering and possessing forged securities. 18 U.S.C. § 513.

On appeal, Stavroulakis raises numerous issues, several of which merit our attention. First, he argues that the government failed to prove a conspiracy to violate the money laundering statute, as there was no proof of an agreement on the essential nature of the conspiracy. He also claims that the indictment failed to charge bank fraud, and, even if it did, the evidence adduced at trial failed to support the bank fraud convictions. Stavroulakis next asserts that he is entitled to a new trial because the prosecutor, during jury selection, exercised one of her peremptory challenges in a racially discriminatory manner. Finally, defendant claims that Judge Griesa's refusal to grant him a Judicial Recommendation Against Deportation at sentencing was premised on an ex post facto violation. We reject each of these arguments, and affirm.

BACKGROUND

Money Laundering Conspiracy

In February 1989, a confidential government informant introduced Stavroulakis to an undercover FBI agent, David Maniquis, who said he was connected with organized-crime figures eager to launder substantial amounts of cash derived from narcotics transactions. Stavroulakis took the bait and agreed to introduce Maniquis to his accountant, Charlie Kirkelis, assuring Maniquis that if Kirkelis could not help, Stavroulakis had other ways to launder the cash.

When Kirkelis eventually demurred, Stavroulakis agreed to enlist the help of an acquaintance, Kostas Giziakis, an officer at the National Mortgage Bank of Greece ("NMBG"). Agent Maniquis was amenable to laundering the money through the NMBG, if, besides concealing the source of the money, Giziakis would also be willing to circumvent any currency reporting requirements. Maniquis stressed to Stavroulakis the need for secrecy because of the illegal source of the cash. Stavroulakis agreed that secrecy was paramount, and, with Maniquis' blessing, proceeded to contact Giziakis.

Soon thereafter, in May 1989, Stavroulakis and Agent Maniquis ventured to the NMBG branch in Astoria, Queens, to meet Giziakis. Prior to entering the bank, Stavroulakis outlined an elaborate scheme--which he and Giziakis had already concocted--for laundering the money: Stavroulakis would open an account at the NMBG in his own name, the money would be deposited in that account and then transferred to Greece, where it would be funneled through a fictitious corporation and returned to the NMBG, ostensibly as legitimate corporate earnings. Stavroulakis also told Maniquis that Giziakis was under the impression that the money was derived from gambling, rather than narcotics transactions. Stavroulakis explained that when he had first broached the subject with Giziakis, he had decided to tell Giziakis the money came from gambling because Giziakis appeared to have scruples about laundering narcotics money.

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Once inside the NMBG, the three individuals ironed out the scheme to launder the money. Agent Maniquis represented to Giziakis that the cash was the product of a numbers operation run by his alleged associates. He informed Giziakis that his associates obtained hundreds of thousands of dollars per month in small bills from gambling, and that they wanted to make the cash appear to come from a legitimate source. Giziakis agreed to accommodate Maniquis, and said he could launder large amounts of cash through the NMBG.

Several weeks later the three of them met again at the NMBG. Because Stavroulakis was late for this meeting, Maniquis and Giziakis spoke privately for a few minutes. After handing Giziakis $2,000 in cash as the initial deposit, Maniquis warned Giziakis that gambling proceeds were almost always in small denominations, and told Giziakis of his concern over toting the money into the bank in a large gym bag. Giziakis assured Maniquis that this would be no problem. His concerns assuaged, Maniquis then told Giziakis that he would soon deposit $30,000 for the first month. At that point, Stavroulakis arrived and signed the account-opening card. The stage was now set to execute the scheme.

Bank Fraud

While the money-laundering plot was brewing, Stavroulakis decided to call upon Agent Maniquis for assistance in other nefarious plans. Defendant informed the agent that he and his associates were able to obtain stolen checks, which they were looking to sell. Maniquis obligingly volunteered that he had a contact at a check-cashing establishment who would help, and since the check-cashing business was bonded, the only one that would lose money would be the bank on which the checks were drawn. Stavroulakis and Maniquis then struck a deal whereby Maniquis would pay Stavroulakis a commission between 5% and 10% of the balance of the account on which the checks were drawn.

Stavroulakis subsequently offered Maniquis two sets of stolen checks. The first was a book of checks drawn on the account of ESM General Merchandise Ltd. at the Republic National Bank. Along with these checks, Stavroulakis offered a sample signature for the ESM account, which one of his cronies had filched. Maniquis paid one of Stavroulakis' associates $5,000 for the stolen ESM checks, and later paid Stavroulakis $2,000 for his participation in the scheme. Stavroulakis subsequently sold Maniquis a second set of stolen checks, drawn on the account of Nature's Gifts Ltd. at Bank Leumi. Stavroulakis received $500 from Maniquis as compensation for the Bank Leumi checks.

Jury Selection

A grand jury subsequently indicted Stavroulakis and Giziakis. Stavroulakis, however, went to trial alone because Giziakis became a fugitive. During jury selection, the district court questioned venireman Eddie Holmes, a black male who, in response to the judge's questioning, indicated that he was unmarried, without a full-time job, and had been employed "off and on" for the preceding five years as a maintenance worker in a public school in the Bronx. After the court finished its questioning, the prosecutor exercised one peremptory challenge to excuse Holmes. Roger Bernstein, defense counsel, immediately engaged in the following colloquy with the district court:

MR. BERNSTEIN: I want to say that the juror that was excused was black and at the very least I think you should put a nondiscriminatory juror--

THE COURT: I don't follow the reasoning. This is a ridiculous objection. This is a complex case. He should be excused. I would almost excuse him for cause. There is no other way to do it. In the first place, your client is not black. Let's not waste time with this kind of thing.

Defense counsel made no further comment, and jury selection continued.

Sentencing

On April 29, 1991, after Stavroulakis had been convicted on all four counts in the indictment, the district court sentenced him to thirty-seven months of imprisonment, to be followed by two years of supervised release. At sentencing, Stavroulakis, a

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Greek national, requested that the district court enter a Judicial Recommendation Against Deportation ("JRAD"). The court denied this request on two alternative grounds. First, the district court noted that the Immigration Act of 1990 had eliminated the authority of district courts to enter JRADs, and it held that, even though the repeal had taken effect after Stavroulakis had committed his crimes, there was no ex post facto violation. Alternatively, the district court held that, even if it had the authority, it would deny the JRAD as inappropriate in this case.

Stavroulakis now appeals.

DISCUSSION

Money Laundering Conspiracy

Stavroulakis argues that his conviction for conspiracy to violate the money laundering statute cannot stand because there was no agreement on the essential nature of the plan. More precisely, he claims that because he believed the money came from narcotics while Giziakis--his co-conspirator--believed it came from gambling, no conspiratorial agreement existed. We disagree.

The money laundering statute provides in pertinent part:

(3) Whoever, with the intent--

(A) to promote the carrying on of specified unlawful activity;

(B) to conceal or disguise the nature, location, source, ownership, or control of property believed to be the proceeds of specified unlawful activity; or

(C) to avoid a transaction reporting requirement under State or Federal law,

conducts or attempts to conduct a financial transaction involving property represented by a law enforcement officer to be the proceeds of specified unlawful activity, or property used to conduct or facilitate specified unlawful activity, shall be fined under this title or imprisoned for not more than 20 years, or both.

18 U.S.C. § 1956(a)(3). Subsection (c)(7) of this statute then defines the term "specified unlawful activity," and it enumerates a myriad of activities...