U.S. v. Williams, 95-3597
Decision Date | 05 August 1996 |
Docket Number | No. 95-3597,95-3597 |
Citation | 87 F.3d 249 |
Parties | 44 Fed. R. Evid. Serv. 1350 UNITED STATES of America, Appellee, v. Louis WILLIAMS, Appellant. |
Court | U.S. Court of Appeals — Eighth Circuit |
Henry B. Robertson (argued), St. Louis, MO, for appellant.
James E. Crowe, Jr., and Audrey G. Fleissig, Asst. U.S. Attys. (argued), St. Louis, MO, for appellee.
Before BEAM and MURPHY, Circuit Judges, and BURNS, * District Judge.
Louis Williams appeals from his convictions for conspiracy, 18 U.S.C. § 371, money laundering, 18 U.S.C. § 1956(a), forgery, 18 U.S.C. § 471 and 2, and stealing and receiving, 18 U.S.C. § 641 and 2. He and his coconspirators were involved in a scheme to profit from 67 blank United States Treasury checks stolen from a St. Louis postal center. We affirm.
Williams contends on appeal that: (1) the government's cross-examination of him created an improper inference of guilt; (2) the admission of a coconspirator's statements violated the hearsay rule and his right to confrontation; (3) there was insufficient evidence to support his conviction of money laundering; (4) the district court abused its discretion in giving certain exhibits to the jury during its deliberation; and (5) the district court erred in giving two jury instructions on possession of stolen property and the inferences permitted to be drawn from that possession. 1
Sometime during the late summer of 1993, Tommie Penson, a St. Louis resident, learned from a friend, Jobe Reid, that Joe Ellis had access to blank United States Treasury checks through his employment at the St. Louis post office. Penson told Reid he could cash the checks in Mexico. Reid promptly contacted Ellis, who then stole seven blank Treasury checks, beginning on October 1, 1993. Ellis understood from Reid that he would receive a portion of the proceeds raised by the checks. 2
At some point, Penson discussed the Treasury checks with Williams, a longtime associate who lived in Texas. Penson and Williams had done business before, partly through an entity owned by Penson called the Royal Oaks Estates. After talking with Penson, Williams recruited a Mexican citizen, Genaro Alvarez, to cash one of the checks in exchange for part of the proceeds. Alvarez flew from Texas to Mexico City in October 1993, and met Maria Nelda San Martin, an associate of Penson and Williams. On October 29, Alvarez presented a Treasury check made payable to him in the amount of $1,165,000 at a money exchange house in Mexico City. He received a cashier's check for $50,000 in his name as an advance, and the check was later paid in full by the Federal Reserve Bank in Minneapolis, Minnesota. Williams spoke with Penson and told him to have the "Treasuries" in place in Mexico. Williams then told his girlfriend, Elena Cantu, that he had to conclude a deal in Mexico, and he arrived on October 30 in Mexico City, where he met Penson and Nelda.
During the first week of November 1993, Williams, Penson, and Nelda agreed on the disbursement of the $1,165,000 check. Penson channeled most of the funds into a Texas bank account maintained by Nelda's brother, Jose San Martin. From that account, Penson directed the disbursement of $400,000 to his St. Louis accounts and $95,000 to Nelda's account in Mexico City. On behalf of Williams, Penson made a series of wire transfers into bank accounts maintained by Williams, Elena Cantu, and Williams' ex-wife.
On November 15, 1993, Penson flew back to St. Louis after arranging for Williams to become a signatory on his Royal Oaks Estates account at the Banco Mexicano in Mexico City. Penson then transferred $10,000 of the stolen money from his St. Louis account to the Royal Oaks account the following day. Penson and Williams communicated some twelve times by phone and fax during this period.
Prior to Penson's departure from Mexico, he agreed with Williams and Nelda to obtain more stolen Treasury checks. Penson contacted Reid, who persuaded Ellis to steal approximately 60 blank checks on November 12, 1993. Nelda received the checks on November 14 and collaborated with Williams, Penson, and Alvarez to make six of the checks payable to Emilio Sanchez Martinez in amounts ranging from eight to eleven million dollars, the proceeds of which they agreed to share. On November 15, Alvarez unsuccessfully tried to pass two of these checks in Mexico.
On November 17, 1993, the St. Louis postal center received a copy of one check for $10,000,000. Postal inspectors immediately began an investigation. They interviewed Alvarez on November 21, who told them about cashing the $1,165,000 check. Penson was arrested in St. Louis shortly thereafter on November 24. 3 He told postal inspectors that he had no knowledge of the stolen Treasury checks, and he did not mention his association with Williams or Nelda.
Following his arrest, Penson remained in contact with Williams through his friend, Eddie Walker. Williams, who was staying at Nelda's residence in Mexico City during November and December 1993, spoke to Penson and Walker some 90 times. Penson and Williams continued to disburse the funds from the $1,165,000 check and persuaded Jose San Martin to pay $12,000 of the stolen money to Penson's wife on December 1, 1993. They also attempted to cash another stolen check. Williams told Walker in December 1993 that Penson and Alvarez were his partners in an ongoing "deal." Around December 20, 1993, Penson had Walker contact Williams in New York about that deal. At that time, one of the stolen checks in the amount of $9,980,000 was being processed at the Banco Mexicano's New York office after having been presented at the bank in Mexico. Williams called the Banco Mexicano from New York several times, but the check did not clear.
Williams was arrested over a year later, on January 9, 1995, as he attempted to enter the United States in San Diego. He was carrying a check written to his Mexico City landlord on the Royal Oaks Estates account, a hotel bill listing him as a representative of Royal Oaks, and other papers linking him to the conspirators in this case.
At trial, Williams denied knowledge of, or participation in, any activity related to the stolen Treasury checks and their proceeds. He was found guilty on all counts (except one that had been dismissed). Since most of the issues that Williams raises on appeal pertain to events at trial, the relevant facts are incorporated in our discussion.
Williams first argues that the government improperly created an inference of guilty silence by cross-examining him about his failure to call Postal Inspector Ted Orona about the Treasury checks. Elena Cantu had testified at trial that after Penson's arrest she asked Williams to contact Orona concerning the Treasury checks, but that Williams became upset and denied knowledge of them. Jose San Martin had also testified that he told Williams in December 1993 to contact Orona and that Williams said he would. Orona then testified that he had asked Cantu and San Martin to tell Williams to call him, but he never did. There was no objection to any of this testimony.
Later, during his cross-examination, Williams testified that he could not remember being told to contact Inspector Orona and that he had not called him. Defense counsel objected to this line of questioning, stating that: "[Williams] has absolutely no obligation to answer questions, call an agent, and give statements about some case." The district court overruled his objection. Williams now asserts that his cross-examination testimony was improperly admitted as an adoptive admission under Fed.R.Evid. 801(d)(2)(B) 4 because Orona had not accused him of anything.
A criminal defendant who takes the stand in his own behalf "cannot avoid testifying fully." See Jenkins v. Anderson, 447 U.S. 231, 236 n. 3, 100 S.Ct. 2124, 2128 n. 3, 65 L.Ed.2d 86 (1980). Once the choice to testify is made, "[t]he interests of the other party and regard for the function of the courts of justice to ascertain the truth become relevant...." Id. at 238, 100 S.Ct. at 2129. Here, Williams testified that he did not conspire with Penson to cash stolen treasury checks and that his presence in New York during the time a stolen check was being processed was merely coincidental. The government's questioning on cross-examination about Williams' alleged failure to call Inspector Orona was related to his denial on direct examination of any involvement in a conspiracy or attempt to conceal a conspiracy. The prosecution thus "did no more than utilize the traditional truth-testing devices of the adversary process." Id. The district court did not abuse its discretion in determining the proper scope of cross-examination. See United States v. NB, 59 F.3d 771, 777 (8th Cir.1995) (standard of review).
Williams next contends that certain statements of Penson were improperly admitted as an exception to the hearsay rule and that this violated his Sixth Amendment right to confrontation. Following his arrest, Tommie Penson told investigators that he had funded wire transfers with money borrowed from an unidentified source, that he did not know about any stolen Treasury checks, and that he was not in Mexico when the $1,165,000 stolen check had been presented. Penson did not mention Williams or other conspirators. Although Penson did not testify at trial, his statements were admitted as those of a coconspirator under Fed.R.Evid. 801(d)(2)(E). Williams argues that Penson's statements were not made in furtherance of the conspiracy since he had already been arrested, and that he was therefore entitled to a cautionary instruction under the Sixth Amendment.
Fed.R.Evid. 801(d)(2)(E) permits the admission, as nonhearsay, of statements made "by a coconspirator of a party during the course and in furtherance of the conspiracy." Under this rule, the government must prove, by a...
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