US v. Campbell

• Decision Date: 23 October 1991
• Docket Number: No. ST-CR-90-45.,ST-CR-90-45.
• Citation: 777 F. Supp. 1259
• Court: U.S. District Court — Western District of North Carolina
• Parties: UNITED STATES of America v. Ellen CAMPBELL, Defendant.

777 F. Supp. 1259

UNITED STATES of America v. Ellen CAMPBELL, Defendant.

No. ST-CR-90-45.

United States District Court, W.D. North Carolina, Statesville Division.

October 23, 1991.

Thomas J. Ashcraft, U.S. Atty., Charlotte, N.C., for U.S.

Larry D. Tucker, James F. Wyatt, III, Charlotte, N.C., for defendant.

OPINION

MULLEN, District Judge.

Ellen Campbell was tried and convicted of the charges contained in a three count bill of indictment. At the conclusion of the trial, she moved for a judgment of acquittal on all three charges and her motion was denied as to the charge of causing a false HUD-1 Statement to be filed with a government agency (18 U.S.C. § 1001) as alleged in Count III. The court reserved ruling on the motion as it related to the remaining charges of money laundering 18 U.S.C. § 1956(a)(1)(B)(i) as found in Count I, and engaging in a transaction in criminally derived property 18 U.S.C. § 1957(a) as charged in Count II. The court has since received briefs and heard arguments from both the defendant and the government regarding the motion and will grant the motion.

I. Evidence at Trial

Viewed in the light most favorable to the government, the evidence at trial revealed the following facts:

In the summer of 1989 Ellen Campbell¹ was a licensed real estate salesperson working at Lake Norman Realty in Mooresville, North Carolina. During the same period, Mark Lawing was a drug dealer in Kannapolis, North Carolina, who was both on the way up and on the way down — his profits had steadily risen to $10,000 or more per week and he was soon to be indicted. Because he had recently purchased a Four Winds motorboat, Lawing decided to buy a house on Lake Norman.² At the time Lawing was maintaining his boat on Lake Norman and living in Kannapolis. He apparently conducted all of his meetings with Ellen Campbell and Lake Norman Realty by commuting from Kannapolis to Mooresville.

Lawing first made contact with Campbell by stopping at Lake Norman Realty's Mooresville office and picking out her business card because her photograph was the most attractive of those displayed. Lawing, presenting himself as the owner of L & N Autocraft, called Campbell and scheduled an appointment with her and began looking for houses priced for under $100,000. Dissatisfied with those houses, Lawing maintained contact with Campbell and began to look at houses priced in excess of $150,000. During one trip, while house shopping, Lawing brought a briefcase containing $20,000 in cash, showing the money to Campbell to demonstrate his ability to purchase a house.

Lawing continued to make appointments with Campbell, seeing her about once a week and calling her three to four times each week. Lawing stated that the entire transaction period took about five weeks and he looked at ten to twelve houses. All of his trips to look at houses were made during normal business hours, and Lawing was usually accompanied by Randy Sweatt, a fellow dope dealer. Lawing and Sweatt would travel to Lake Norman in either a gold Porsche owned by Sweatt or a red Porsche owned by Lawing.³ During their trips Lawing would bring his cellular phone, and both of the drug dealers would consume food and beer while looking at houses. Lawing stated that he often wore gold jewelry and Campbell characterized both of the men as "beach boys."

Lawing eventually settled upon a house listed for $191,000 and owned by Edward and Nancy Guy Fortier. The listing with the Fortiers had been secured by Sara Fox, another real estate saleswoman with Lake Norman Realty. After negotiations, Lawing and the Fortiers agreed on a price of $182,500 and entered into a written contract. Lawing was unable to secure a loan, and decided to ask the Fortiers to accept $60,000 under the table in cash and to lower the contract price to $122,500. Lawing contacted Ellen Campbell and informed her of his proposal. Campbell relayed the proposal to Sara Fox, and Fox passed along the offer to the Fortiers. Fox had the Fortiers execute a new listing agreement which increased the commission percentage and lowered the sales price. Fox stated that Campbell told her James Jennings, the broker-in-charge, had handled a cash transaction that way before. Fox never spoke to James Jennings or Eugene McIntyre (the company sales manager) about the change, but acted upon information given to her by Campbell.

Thereafter Lawing met the Fortiers, Fox and Campbell at the Mooresville sales office with $60,000 in cash. The money was wrapped in small bundles and carried in a brown paper grocery bag. The money was counted, divided between the Fortiers and a new contract executed reflecting a sales price of $122,500. Lawing tipped both Fox and Campbell with a couple of hundred dollars and left.⁴ The Fortiers and the saleswomen then began to talk about the money. The Fortiers had earlier asked if it was counterfeit and were told by Lawing that it was not. After Lawing left, Nancy Fortier again said "Is this for real?" Fortier then heard Campbell say she "didn't care where the money came from."

The parties were aware that Lawing wanted the cash transaction muted, because he was lying to his parents about the sales price. Unbeknownst to Campbell or Fox, Lawing had also given his parents $31,000 cash to apply to the purchase of the house. He told his parents that the $31,000 was Las Vegas winnings. In fact, he had been to Las Vegas a few months before the closing, but Lawing could not recall if he talked to Ellen Campbell about his Las Vegas trip. In describing the trip on direct examination Lawing stated that he had not made any money; that he had won some money but he spent it. On cross-examination he stated that he won $45,000 in Las Vegas and that he also gambled on NASCAR races in North Carolina. On re-direct examination, however, Lawing stated that he had $34,000 in net losses from his trip to Las Vegas.

Disregarding the Las Vegas trip, Sara Fox testified that before the cash transaction was made Ellen Campbell mentioned that it "may have been drug money." (Tr. pp. 190-91)

James Jennings recalled having a conversation with Ellen Campbell in which the "general issue" concerned having a contract and protecting the commission if a trade or $60,000 was going to be involved. When asked if Ellen Campbell told him $60,000 was being paid outside the terms of the contract Jennings said he "could not say that he remembered that."

The first contract had been placed in the office of William Austin, the closing attorney. After the cash transaction was completed and the second contract executed, Ellen Campbell went to his office to exchange the second contract for the first. Austin did not see the first contract, however. Austin's office then prepared closing documents, including a HUD-1 and 1099-S, which reflected a sales price of $122,500. Ellen Campbell was present at the closing, along with Sara Fox, William Austin, the Fortiers, Lawing and Lawing's parents. The closing documents, including the HUD-1 and the 1099-S were signed, all reflecting a sale price of $122,500. No one mentioned the $60,000 in cash. Ellen Campbell eventually received over $3500 as a result of the sale — $3400 as a commission and a "couple of hundred" as a tip from Lawing.

After presentation of the evidence, the jury convicted Ellen Campbell on all three counts of the indictment.

II. Judgment of Acquittal

A. Review of the Evidence

The test for reviewing the sufficiency of the evidence to support a conviction was set forth in the Supreme Court case In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970). In Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) the court expounded upon the Winship requirements for review of the evidence that supports a conviction. When considering a motion for a judgment of acquittal a court is not required to ask itself whether it believes the evidence establishes guilt beyond a reasonable doubt. Rather, the court is required to determine if any rational trier of fact could have found the essential elements beyond a reasonable doubt when the evidence is viewed in the light most favorable to the government. Jackson 443 U.S. at 318-19, 99 S.Ct. at 2788-89. While this is a broad standard, it does require more than a mere modicum of evidence supporting conviction; the prosecution is required to prove its case beyond a reasonable doubt. Thus, a guilty verdict entitles the government to have all of the evidence viewed in a light most favorable to it, and to have the benefit of all reasonable inferences that may be drawn from that evidence, but due process requires more than a scintilla of evidence to have been offered to establish proof beyond a reasonable doubt. Jackson at 319-320, 99 S.Ct. at 2789-90.

B. Essential Elements — Money Laundering

An individual may not be convicted of money laundering unless the government proves beyond a reasonable doubt each of the following:

1. That the individual conducted a financial transaction in interstate commerce,

2. with knowledge that the property involved in the transaction represented the proceeds of some form of unlawful activity,

3. with the transaction in fact involving the proceeds of specified unlawful activity; and

4. with the purpose, in whole or in part, of concealing or disguising "the nature, the location, the source, the ownership, or the control" of the illegally acquired proceeds.

From the facts of this case it is readily apparent that a rational jury could reasonably conclude that the sale of the property was in interstate commerce and that the transaction involved proceeds from the sale of cocaine as specified in the indictment. More problematic, however, are the jury findings (a) that Ellen Campbell knew that the transaction was designed, in part, to conceal the nature of the drug money⁵ and (b) that Ellen Campbell knew the purchase price represented the proceeds of some form of unlawful activity.

A review of the case law which...