U.S. v. Upton

• Decision Date: 05 March 2009
• Docket Number: No. 05-1593.,05-1593.
• Citation: 559 F.3d 3
• Parties: UNITED STATES of America, Appellee, v. George L. UPTON, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

559 F.3d 3

UNITED STATES of America, Appellee, v. George L. UPTON, Defendant, Appellant.

No. 05-1593.

United States Court of Appeals, First Circuit.

Heard April 4, 2007.

Decided March 5, 2009.

Richard B. Klibaner, with whom Klibaner & Sabino, was on brief for appellant.

John-Alex Romano, Attorney, Criminal Division, United States Department of Justice, with whom Michael J. Sullivan, United States Attorney and William F. Bloomer, Assistant United States Attorney, were on brief, for appellee.

Before LYNCH, Chief Judge, LIPEZ and HOWARD, Circuit Judges.

HOWARD, Circuit Judge.

A jury convicted George Upton of conspiracy to commit money laundering. In this appeal, he argues that, by the time of his indictment, the statute of limitations period had run on all of his conduct except for the filing of a false tax return and the failure to file a tax return. Upton asserts that, under governing Supreme Court precedent cabining the government's ability to charge continuing conspiracies based on subsequent acts of cover-up, the two tax offenses were not part of the conspiracy. From this premise he contends both that he was entitled to a jury instruction on the statute of limitations and that the evidence was insufficient to convict him of conspiracy to launder money within the applicable limitations period. He also claims that the district court erred in admitting a hearsay statement as an excited utterance. We affirm.¹

I.

A. Background Facts

For purposes of assessing the sufficiency claim, we recite the facts in the light most favorable to the verdict. See United States v. Boulanger, 444 F.3d 76, 89 (1st Cir.2006).

Upton owned Look Motors, Inc., a used car lot in Hyannis, Massachusetts that sold automobiles and offered financing to customers who could not afford to make large down payments. In connection with this enterprise, he had a business relationship with Steven Queen, a lender.

On July 9, 1997, Queen traveled to Florida and removed a large amount of cash from his parents' safe deposit box. Queen had told several people of his plans prior to making this trip, claiming that the money was his inheritance. Upton had heard about Queen's trip and its purpose.

Upon returning from Florida on the evening of July 12, 1997, Queen left a suitcase containing $900,000 in cash in the trunk of a car that was parked in the Look Motors parking lot and went to dinner. Upton's daughter saw Queen place the suitcase in the trunk of the car. She told Upton and his girlfriend of twenty years, Lynn Alberico, about the suitcase. While Queen was at dinner, Upton and Alberico removed the suitcase from the car. When Queen returned to Look Motors and discovered that the suitcase was missing, he accused Upton of stealing the money. Upton denied the accusation and told Queen to leave. Distraught, Queen went to the apartment of a friend and told her that the money he had taken from his parents was gone.

Queen accused Upton of stealing the money on several occasions, in public confrontations. Upton did not admit to Queen that he had taken the money. During the fall of 1997, however, Upton did admit to an acquaintance that he had stolen a suitcase with more than $900,000 in cash from Queen. In 1999, Alberico made the same admission to her best friend.

On August 19, 1997, a month after the theft, Upton signed a purchase and sale agreement to buy the property located at 89 Iyanough Road in Hyannis, Massachusetts for $120,000. He made a $12,000 down payment by check; that check was returned for insufficient funds, and Upton replaced it with $12,000 in cash. Upton paid the $108,000 balance of the purchase price with thirteen cashier's checks.

The cashier's checks had been acquired in several stages, over the span of three days. Upton's brother, two friends, and a Look Motors employee assisted Upton and Alberico. Upton provided cash to these four people. Then, each person deposited the cash into his or her personal bank account to purchase one or more cashier's checks. Most of the deposits and checks were for sums less than $10,000 and involved visits to multiple bank branches or multiple visits to the same branch, in order to avoid federal reporting requirements.² The checks variously were made out to Upton or to Alberico.

Alberico took title to the property in the name of "AU Trust." That trust, created on the day of the closing, August 29, 1997, bears Alberico's and Upton's initials. Also on the day of the closing, Alberico granted a sham mortgage on the property to "Bostonians Trust of Florida," which did not then even exist. The property was then rented out for $1,000 per month.

The 89 Iyanough Road property was sold on January 5, 1999, for $202,000. On January 6, the real estate attorney wrote separate checks to Upton and Alberico for $39,850 each, and, less than a week later, purchased bank checks made out to Upton and Alberico for $52,948.21 each. Bank records indicate that these checks were deposited into the accounts of Look Motors and Alberico, respectively, in January 1999.

Upton eventually filed his 1997 federal income tax return in July 2000, reporting a total income of $14,165. At the same time, he also filed returns for 1994, 1995, and 1996. All of his returns were prepared by his accountant, based on information provided by Upton. The 1997 return was false in that it did not disclose any portion of the $900,000 stolen from Queen, nor did it disclose any portion of the rental income from 89 Iyanough Road for the partial year 1997. Alberico's tax return for 1997, filed in August 1998, also neglected to report any portion of the stolen money or the rental income. Upton did not file a return for 1998. Alberico filed a false return for 1998 in October 1999, again failing to report rental income. Neither Upton nor Alberico filed a tax return for 1999, the year in which each earned a substantial capital gain from the sale of the property.

B. Procedural History

In August 2002, a grand jury indicted Upton and Alberico for money laundering and for structuring financial transactions to evade reporting requirements, as well as for conspiracy to engage in such structuring. On May 12, 2004, a superseding indictment added counts of conspiracy to commit money laundering, in violation of 18 U.S.C. §§ 1956(a)(1)(B), (h) and 1957(a); filing a materially false income tax return for the year 1997, in violation of 26 U.S.C. § 7206(1); and failing to file an income tax return for the year 1999, in violation of 26 U.S.C. § 7203.

The general five-year statute of limitations, 18 U.S.C. § 3282, applies to prosecutions for violations of the money laundering and structuring statutes. For reasons not material to this appeal, the filing of the superseding indictment established May 12, 2004 as the relevant date for statute of limitations purposes. Prosecution for alleged crimes committed prior to May 12, 1999 was thus barred by the statute of limitations. Accordingly, the district court dismissed the counts carried over from the original indictment alleging money laundering, structuring and conspiracy to engage in structuring. Upton, 339 F.Supp.2d at 196. Upton went to trial on the remaining charges of conspiracy to commit money laundering and the two tax violations.³

During the charge conference, Upton did not request a jury instruction on a statute of limitations defense to the conspiracy count. The next day, however, at the completion of the government's case in chief, he did request such an instruction. The trial judge denied this request on the basis that Upton had waived the request by failing to raise it at the charge conference. At the completion of the government's case, Upton moved unsuccessfully for judgment of acquittal on the basis that the money laundering conspiracy charge was time-barred. After the jury had been instructed at the close of the evidence, Upton objected to the denial of his request for a statute of limitations instruction. The court again ruled that Upton had waived his right to a jury instruction on the statute of limitations because he did not raise it at the charge conference.

The jury found Upton guilty on each of the three counts: conspiracy to commit money laundering, filing a false tax return, and failure to file a tax return. Following the verdict, the district court denied Upton's renewed motion for judgment of acquittal, United States v. Upton, 352 F.Supp.2d 92, 100 (D.Mass.2005), and sentenced him to 162 months' imprisonment.

II.

Upton appeals only his conviction for conspiracy to commit money laundering. He does not challenge his tax convictions. As to the conspiracy conviction, he claims that the district court erred in not instructing the jury on the statute of limitations; erred in denying his motion for acquittal on statute of limitations grounds; and abused its discretion in admitting a statement as an excited utterance.

A. Jury Instruction on Statute of Limitations

Upton contends that the district court erred by failing to instruct the jury on the statute of limitations applicable to the money laundering conspiracy. He argues that he has preserved his objection to the court's failure to so instruct, and therefore that harmless error is the appropriate standard of review. While he acknowledges that he failed to request a written instruction at the charge conference, Upton presses the fact that he raised his objection after the charge conference but before the jury was instructed, and again after the instructions were delivered to the jury. Beyond this, he asserts that even if he has not preserved his objection, the court's failure to give the instruction was plainly erroneous. See United States v. Thurston, 358 F.3d 51 (1st Cir.2004), vacated on other grounds.

The appellant is not entitled to relief on this ground. First, the claim of error is unpreserved. The requirements for requesting a jury instruction are clear. Fed. R.Crim.P. 30(a) provides as follows:

Any party may request in writing...