U.S. v. Wolny, 96-4169

Decision Date06 January 1998
Docket NumberNo. 96-4169,96-4169
Citation133 F.3d 758,1998 WL 2480
Parties150 A.L.R. Fed. 751, 48 Fed. R. Evid. Serv. 714 UNITED STATES of America, Plaintiff-Appellee, v. Boleslaw WOLNY, Defendant-Appellant.
CourtU.S. Court of Appeals — Tenth Circuit

Stewart C. Walz, Assistant United States Attorney, Salt Lake City, UT, for Plaintiff-Appellee (Scott M. Matheson, United States Attorney, with him on the brief).

G. Fred Metos, Salt Lake City, UT, for Defendant-Appellant.

Before KELLY, HOLLOWAY, and HENRY, Circuit Judges.

HENRY, Circuit Judge.

Defendant Boleslaw Wolny appeals his conviction for attempted money laundering, in violation of 18 U.S.C. § 1956(a)(3)(B). Mr. Wolny challenges the sufficiency of the evidence, the admission of allegedly perjurious testimony, the district court's refusal to take judicial notice of an agency regulation, and the rejection of a proposed jury instruction on the theory of the defense. We exercise jurisdiction under 28 U.S.C. § 1291 and affirm.

I. BACKGROUND

Mr. Wolny was arrested after a sting operation in which an FBI special agent posed as a Mexican drug dealer named Carlos Saltillo. Mr. Saltillo sought assistance in laundering one million dollars in cash, which he said were proceeds of drug sales. Mr. Wolny is a stock broker who was employed for the alleged money laundering operation. The operation was originated by Salt Lake City attorney Robert J. Nielsen and Mr. Nielsen's colleague, Paul Garfinkle.

The money was to be laundered as follows: A trust was established under the laws of the island nation of Anguilla. Mr. Saltillo was named as the trust's beneficiary. The trustee was an Anguillan, who granted Mr. Nielsen power-of-attorney to act as trustee. The drug money was to constitute the trust funds and was to be kept in an account with Kingston Securities, a brokerage house in Kingston, New York. Mr. Wolny was listed as the broker for the account. The trust funds were to be used to purchase securities. When the securities were sold, the proceeds were to be returned to Mr. Saltillo as "clean" money.

After the money laundering scheme was launched, Mr. Wolny traveled to Salt Lake City, where he planned to pick up the cash and carry it to New York. In Salt Lake City, Mr. Wolny met with Mr. Nielsen, Mr. Garfinkle, and Mr. Saltillo in a hotel room, where their conversation was secretly videotaped by the FBI. After a short time, FBI agents entered the room and arrested Mr. Wolny, Mr. Nielsen, and Mr. Garfinkle.

Mr. Wolny was charged with attempted money laundering in the final count of a four-count indictment. He was not named in the first three counts, which concerned his co-defendants, Mr. Nielsen and Mr. Garfinkle. Mr. Nielsen and Mr. Garfinkle each pled guilty to one count of the indictment and did not proceed to trial with Mr. Wolny. At trial, the jury found Mr. Wolny guilty of the offense charged in Count Four.

II. DISCUSSION
A. Sufficiency of the Evidence

Mr. Wolny contends that the evidence was insufficient for his conviction. "The sufficiency of the evidence is a question of law subject to de novo review." United States v. Markum, 4 F.3d 891, 893 (10th Cir.1993). "Evidence is sufficient to support a conviction if the evidence and the reasonable inferences drawn therefrom, when viewed in the light most favorable to the government, would allow a reasonable jury to find [the] defendant guilty beyond a reasonable doubt." Id.

Mr. Wolny argues that the evidence was insufficient to establish the "intent to conceal" element of 18 U.S.C. § 1956(a)(3)(B). An essential element under that section is intent "to conceal or disguise the nature, location, source, ownership, or control of property believed to be the proceeds of specified unlawful activity." 18 U.S.C. § 1956(a)(3)(B) (1994).

In United States v. Contreras, 108 F.3d 1255 (10th Cir.), cert. denied, --- U.S. ----, 118 S.Ct. 116, 139 L.Ed.2d 68 (1997), we identified evidence that can be probative of an intent to conceal, including:

unusual secrecy surrounding the transaction; structuring the transaction to avoid attention; depositing illegal profits in the bank account of a legitimate business; highly irregular features of the transaction; using third parties to conceal the real owner; [and] a series of unusual financial moves cumulating in the transaction....

Id. at 1264-65. Contreras was decided under subsection (a)(1)(B)(i) of 18 U.S.C. § 1956, not under subsection (a)(3)(B), under which Mr. Wolny was convicted. See Contreras, 108 F.3d at 1264 ("The jury in this case convicted Ms. Contreras of violating 18 U.S.C. § 1956(a)(1)(B)(i)...."). The parties believe, and we agree, that the differences between these two subsections are insignificant insofar as the evidence that is probative of an intent to conceal.

The kinds of evidence cited in Contreras were present in this case:

Unusual secrecy surrounding the transaction. The meeting between Mr. Wolny and the other participants in the money laundering operation took place in a hotel room rather than in Mr. Nielsen's office nearby. See Aple's Supl. App. at 9 (Tr. of trial test. of FBI Special Agent Carlos Villar). The participants in the meeting were frisked before they proceeded to the business at hand. See id. at 17. These circumstances suggest that the defendants may have intended, for illegitimate reasons, to keep their meeting secret.

Structuring the transaction to avoid attention. During the meeting in the hotel room, Mr. Wolny proposed breaking the million dollars into amounts of $10,000 or less, to avoid the necessity of filing a Currency Transaction Report (CTR). See id. at 78 (Tr. of videotaped meeting in hotel room). Under the applicable Treasury Department regulations, a CTR must be filed for any currency transaction in excess of $10,000. See 31 C.F.R. § 103.22(a)(1) (1994). Although Mr. Wolny's idea was later rejected, see Aple's Supl. App. at 78-79 (Tr. of videotaped meeting in hotel room), it is significant that he proposed evading the CTR requirement: "[l]egitimate business transactions are not concerned about the ramifications of filing a CTR." Aple's Br. at 21.

Depositing illegal funds with a legitimate business. As explained in the background section above, the defendants sought to process the drug money through the Anguillan trust and Kingston Securities. See Aple's Supl. App. at 1 (Tr. of trial test. of FBI Special Agent Carlos Villar).

Highly irregular features of the transaction. Several features of the defendants' transaction made it highly unusual:

Mr. Wolny flew across the country to collect one million dollars in cash, which he was to carry to New York. See id. at 71 (Tr. of tape-recorded conversation between FBI Special Agent Carlos Villar and Mr. Nielsen). As the government notes, "legitimate business transactions seldom, if ever, deal in this large amount of cash." Aple's Br. at 18.

"Even if a business transaction [were] conducted with cash, rarely would one person be allowed sole control of, or trusted with, one million dollars." Id.

"This is even more evident in that [Mr.] Saltillo had not personally met [Mr.] Wolny before, and would be unlikely to trust a stranger with such a large amount of cash if this were a legitimate transaction." Id.

Mr. Wolny was to carry the cash to New York on a private charter plane, in order to avoid detection by airport security. See Aple's Supl. App. at 80 (Tr. of videotaped meeting in hotel room).

Using third parties to conceal the real owner of the funds. The trust was established in Anguilla because Anguillan law would prevent any outside party, including the United States government, from discovering the source of the funds. See Aple's Supl. App. at 2 (Tr. of trial test. of FBI Special Agent Carlos Villar). Mr. Saltillo was identified only as the beneficiary of the trust, not as the person who funded it. See id. at 41 (Tr. of trial test. of Mr. Garfinkle). The trust document did not in any way reveal the source of the funds. See id.

Unusual financial moves. As explained in the background section above, under the money laundering scheme, securities would be purchased through Kingston Securities, and when the securities were sold, the proceeds would be disbursed to Mr. Saltillo as clean money. See id. at 1 (Tr. of trial test. of FBI Special Agent Carlos Villar). The jury could well have concluded that these unusual financial moves were made for the very purpose of disguising the true ownership of the funds.

Mr. Wolny contends that the source of the trust funds would have been revealed by a CTR that the defendants planned to file. According to Mr. Wolny, the CTR would have disclosed that Mr. Saltillo was a drug dealer. See Aplt's App. at 127 (blank CTR form, which asks for the "[o]ccupation, profession, or business" of the "[p]erson on ... whose behalf this transaction was conducted").

In arguing that a CTR would have revealed the source of the trust funds, Mr. Wolny relies on the testimony of Mr. Nielsen. Mr. Nielsen testified that he intended to complete a CTR, that he was aware of substantial penalties for not completing a CTR, and that he was aware that a CTR might be returned if it was filled out incorrectly. See id. at 120-21 (Tr. of trial test. of Mr. Nielsen). Mr. Nielsen did not testify that he intended to complete a CTR truthfully and reveal Mr. Saltillo's occupation. Although the jury may have inferred that Mr. Nielsen intended to be truthful, we are not free to draw that inference ourselves. As stated above, in evaluating Mr. Wolny's sufficiency argument, we must view the evidence in the light most favorable to the government. See Markum, 4 F.3d at 893. So viewed, the evidence suggested that the CTR would not have identified drug dealing as the source of the funds. See, e.g., Aple's Supl. App. at 46 (Tr. of trial test. of Mr. Garfinkle) (The CTR would have shown "the party making [the] deposit [with Kingston Securities] as the trust rather than Mr. Saltillo.").

Mr. Wolny further argues...

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