U.S. v. Wilson, 94-11145

• Decision Date: 22 February 1996
• Docket Number: No. 94-11145,94-11145
• Citation: 77 F.3d 105
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Michael Fitzgerald WILSON, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 105

77 F.3d 105

UNITED STATES of America, Plaintiff-Appellee, v. Michael Fitzgerald WILSON, Defendant-Appellant.

No. 94-11145.

United States Court of Appeals Fifth Circuit.

Feb. 22, 1996.

Robert Udashen, Milner, Lobel, Goranson, Sorrels, Udashen & Wells, Dallas, TX, for appellant.

Rose L. Romero, Asst. U.S. Atty., Paul E. Coggins, U.S. Atty., Dallas, TX, for appellee.

Appeal from the United States District Court For the Northern District of Texas.

Before KING, STEWART and PARKER, Circuit Judges.

ROBERT M. PARKER, Circuit Judge:

Appellant Michael Fitzgerald Wilson ("Michael Wilson") was convicted of conspiracy to possess with intent to distribute and distribution of more than 50 grams of crack cocaine, aiding and abetting the use or carrying of a firearm during a drug trafficking crime, three counts of use of a telephone to facilitate a drug trafficking crime, and three counts of aiding and abetting money laundering. The trial court sentenced him to life for the conspiracy conviction, plus four years on the telephone counts and twenty years on the money laundering counts, all to run concurrent with the life sentence. He was also sentenced to sixty months on the gun count to run consecutive to all other sentences. The trial court imposed five years of supervised release and a $25,000 fine. Michael Wilson appeals. We affirm in part and reverse in part.

FACTS AND PROCEEDINGS BELOW

Michael Wilson was charged with conspiring with Wayland Wilson, Koda Cook, Terry Dwayne Levels, Deann Coffman and Donel Clark to manufacture and distribute crack cocaine, as well as related substantive offenses. ¹ Michael Wilson's trial was severed from his co-defendants' trial due to the illness of his first attorney. Following a jury trial, Michael Wilson was convicted on 8 of 12 Counts.

Michael Wilson and his brother, Wayland Wilson, owned a Dallas car dealership called Motor Market. Cook, who began buying cocaine from Michael Wilson in 1989, was hired as a handyman at Motor Market in the Spring of 1990. By the middle of 1991, he was also involved in Michael Wilson's drug business. The co-defendants cooked powder cocaine into crack cocaine, packaged it and distributed it.

In May 1992, law enforcement officers obtained and executed search warrants for Motor Market and various residences, seizing drugs, guns, cars, currency, records of drug transactions and various drug production paraphernalia.

SUFFICIENCY OF THE EVIDENCE

Michael Wilson challenges the sufficiency of the evidence to support his convictions on the money laundering counts, the telephone counts and the firearm count.

a. Standard of Review

We must affirm the jury verdicts if a reasonable trier of fact could conclude from the evidence that all the elements of the offenses were established beyond a reasonable doubt, viewing all evidence in the light most favorable to the verdict and drawing all reasonable inferences from the evidence to support the verdict. United States v. Sanchez, 961 F.2d 1169, 1173 (5th Cir.), cert. denied, 506 U.S. 918, 113 S.Ct. 330, 121 L.Ed.2d 248 (1992).

b. Money Laundering Counts

Michael Wilson contends that the evidence was insufficient to support his convictions on three money laundering counts, which charge Wilson with violating 18 U.S.C. § 1956(a)(1)(B)(i). In order to convict under (B)(i) the government must prove that Wilson (1) conducted or attempted to conduct a financial transaction, (2) which the defendant knew involved the proceeds of unlawful activity, and (3) with the intent to conceal or disguise the nature, location, source, ownership, or control of the proceeds of unlawful activity. United States v. Garza, 42 F.3d 251, 253 (5th Cir.1994), cert. denied, --- U.S. ----, 115 S.Ct. 2263, 132 L.Ed.2d 268 (1995). The jury returned guilty verdicts on Count 9, which involved the purchase of a Jaguar automobile, Count 10, a house ² and Count 11, a boat.

Wilson first contends that there was no evidence that the funds used to purchase these three items were proceeds of unlawful activity or that Wilson knew they were the proceeds of unlawful activity. Wilson characterizes the evidence at trial as establishing only that Wilson used cash for these transactions and that Wilson had income both from legitimate business and from drug transactions.

Second, Wilson contends that the government did not establish the third "concealment" element--in this case, Wilson's intent to conceal or disguise the nature, location, source, ownership or control of the proceeds of unlawful activity. He relies on language from United States v. Sanders, 929 F.2d 1466 (10th Cir.) cert. denied, 502 U.S. 846, 112 S.Ct. 143, 116 L.Ed.2d 109 (1991), which this Court cited with approval in United States v. Gonzalez-Rodriguez, 966 F.2d 918, 925 (5th Cir.1992):

[B]y the express terms of the [money laundering] statute, a design to conceal or disguise the source or nature of the proceeds is a necessary element for a money laundering conviction.

In Sanders, a man and wife purchased automobiles with drug proceeds. One of the vehicles was titled in their daughter's name. However, because they readily identified themselves to the sales person and conspicuously used the automobiles "making the association of these vehicles with the [defendants] obvious to law enforcement," the Tenth Circuit reversed their money laundering convictions for failure to prove the concealment element. Similarly, Wilson readily identified himself and his ownership of Motor Market to the sellers of the car, house and boat. The paperwork prepared in connection with those transactions showed Wilson's name on the house title, while title to the car and boat were taken in the name of Motor Market.

The government responds that the jury could reasonably infer that the funds used for the purchases were drug proceeds, based on the evidence that (1) the purchase money was bundled in the same way that the drug organization bundled their cash, (2) Wilson was a principal in large-scale drug trafficking activities, which yielded large quantities of cash, and (3) Cook, a co-defendant, testified that Michael Wilson was selling cocaine for a living when he went to work for Motor Market in the Spring of 1990.

As to the concealment element, there was evidence that Michael Wilson purchased the Jaguar through a broker and asked the seller to tell the IRS that the car was damaged and sold for less than half the actual price. When the house was purchased, Wilson said the cash was from an inheritance, which he told Cook was his "cover" for the cash purchase. Finally, the boat was titled jointly in the names Motor Market and Cook, and Cook testified that he and Michael Wilson discussed the fact that Cook had received a settlement from his job that could explain the cash purchase.

Having reviewed the record, we conclude that a reasonable jury could have found every element of 18 U.S.C. § 1956(a)(1)(B)(i) on each of these purchases beyond a reasonable doubt.

c. The telephone counts.

Michael Wilson was charged in Counts 4 and 5 with using a telephone to facilitate a drug transaction. The conversations were recorded by means of a wiretap, and the recordings and transcriptions of the conversations were admitted into evidence. The conversation in Count 4 was between Coffman and Michael Wilson. Michael Wilson argues that, assuming the conversation concerned drug dealing, it was a status report about a bookkeeping discrepancy, and thus under United States v. Gonzalez-Rodriguez, 966 F.2d at 922, it was insufficient to sustain a conviction. In United States v. Clark we rejected this argument. Coffman was convicted for participating in the same conversation which we held was "more than the mere conveyance of information" and "constituted the actual conducting of the drug operation." Clark, 67 F.3d at 1162.

The conversation in Count 5 is between Michael Wilson and an unidentified male. Count 5 alleged that Wilson used a telephone to facilitate a felony by discussing with the unknown individual acquisition of a narcotic controlled substance. Wilson asked if another person "still got that thang" and says "call him, let's hear from him." The conversation can reasonably be construed to concern negotiations for the purchase of "that thang." Cook testified that the conversation was between Wilson and David "Dink" Richardson. Cook's testimony ties the conversation to a cocaine delivery that Richardson had previously made for Wilson, which allowed the jury to infer that the "thang" being discussed was cocaine.

We therefore find that Michael Wilson's telephone count convictions were supported by sufficient evidence.

d. The firearm count.

Michael Wilson was convicted in Count 2 of using and carrying a firearm in connection with a drug trafficking crime in violation of 18 U.S.C. § 924(c)(1), based on the seizure of several firearms from a residence owned by Michael Wilson located on Etta Drive. Wilson was not present at the location where the guns were seized, and his fingerprints were not recovered from any of the weapons. No witness testified to seeing Wilson use or carry any of the specific weapons named in Count 2. No drugs were recovered from the location where the weapons were seized, although Cook testified that drug money was counted and stored at the Etta Drive house.

Section 924(c) requires the imposition of criminal penalties if the defendant, "[d]uring and in relation to any crime of violence or drug trafficking crime ... uses or carries a firearm." The government argues that conviction under § 924(c)(1) does not depend on proof that the defendant had actual possession of the weapon or used it in any affirmative manner, but only requires that the firearm was available to provide protection to the defendant in connection with his engagement in drug trafficking, citing United States v. Willis, 6 F.3d 257, 264 (5th Cir.1993).

The Supreme Court overruled Willis when it recently held that conviction for use of a...