US v. Dimeck

• Decision Date: 01 March 1993
• Docket Number: No. 92-20037-01.,92-20037-01.
• Parties: UNITED STATES of America, Plaintiff, v. Kevin DIMECK and Benjamin Salcido, Defendants.
• Court: U.S. District Court — District of Kansas

815 F. Supp. 1425

UNITED STATES of America, Plaintiff, v. Kevin DIMECK and Benjamin Salcido, Defendants.

No. 92-20037-01.

United States District Court, D. Kansas.

March 1, 1993.

COPYRIGHT MATERIAL OMITTED

Leon J. Patton, Asst. U.S. Atty., for U.S.

Mark L. Bennett, Jr., Wilburn Dillon, Jr., Bennett & Dillon, Topeka, KS, James W. Burdick, Bloomfield Hills, MI, for Kevin Dimeck.

Michael Harris, Asst. Federal Public Defender, Kansas City, KS, for Benjamin Salcido.

MEMORANDUM AND ORDER

EARL E. O'CONNOR, Senior District Judge.

This matter is before the court on motions by defendant Kevin Dimeck (Doc. # 150) and defendant Benjamin Salcido (Doc. # 151) for judgment of acquittal. The court has considered the briefs presented by both defendants and by the government and has heard oral argument on these motions at a hearing on February 26, 1993. For the reasons set forth below, the separate motions will be denied.

Both defendants seek a judgment of acquittal pursuant to Federal Rule of Criminal Procedure 29. In considering motions for judgment of acquittal, we must "view the evidence in the light most favorable to the government and then determine whether there is sufficient evidence from which a jury might properly find the accused guilty beyond a reasonable doubt." United States v. White, 673 F.2d 299, 301 (10th Cir.1982). In rendering its verdict, the jury was entitled to consider both direct and circumstantial evidence, as well as all reasonable inferences that could be drawn therefrom. United States v. Hooks, 780 F.2d 1526, 1531 (10th Cir.), cert. denied, 475 U.S. 1128, 106 S.Ct. 1657, 90 L.Ed.2d 199 (1986). In considering a motion for judgment of acquittal, we are prohibited from weighing conflicting evidence or considering the credibility of any witnesses. Burks v. United States, 437 U.S. 1, 16, 98 S.Ct. 2141, 2150, 57 L.Ed.2d 1 (1978). We may grant the defendants' motions for judgment of acquittal only if "the evidence is nonexistent or so meager that no reasonable jury could find guilt beyond a reasonable doubt." White, 673 F.2d at 301.

The Substantive Money Laundering Offense — Count 2

Defendant Salcido was convicted of one count of money laundering in violation of section 1956(a)(3)(B), which imposes criminal sanctions upon:

(3) Whoever, with the intent —

... (B) to conceal or disguise the nature, location, source, ownership, or control of property believed to be the proceeds of specified unlawful activity; ...

conducts or attempts to conduct a financial transaction involving property represented by a law enforcement officer to be the proceeds of specified unlawful activity....

18 U.S.C. § 1956(a)(3)(B).

Salcido first alleges that the government failed to prove a violation of section 1956(a)(3)(B) because the government did not present evidence of a "financial transaction" as defined in section 1956(c)(4). We disagree.

"Financial transaction" is defined as "a transaction¹ involving the movement of funds by wire or other means or involving one or more monetary instruments,² which in any way or degree affects interstate or foreign commerce." 18 U.S.C. § 1956(c)(4) (emphasis added). Thus, a financial transaction under section 1956(c)(4) can be a transfer or delivery involving the movement of funds by means other than wire which in any way affects interstate commerce. This is precisely the type of transaction Salcido attempted here.

The government presented evidence that Salcido travelled from Detroit to Kansas, that he discussed the nature and source of the money with Rich Moore (a cooperating individual or "CI"), that he directed Moore to get large bills, that he called Pruneda, that he went with Moore to pick up the "money" and waited while Moore went inside after the "money," that he took possession of the "money" from Moore, and that he planned to carry the money upon his person on a plane to California and deliver it to Pruneda. Reviewing this evidence in the light most favorable to the government, we hold that the jury could have reasonably inferred that Salcido intended to pick up money that he believed to be proceeds from a specified unlawful activity and to transport it to Pruneda in California with the intent to conceal or disguise the nature, source, or ownership of the money by eliminating any paper trail of the transfer.

Salcido urges that the use of the term "financial transaction" in section 1956(a)(3)(B) restricts the scope of the statute to transactions involving monetary instruments and thus contends that he cannot be guilty because the bag he received from Moore contained only pieces of paper and no monetary instrument was involved.³ In short, Salcido claims it was legally impossible for him to have attempted a financial transaction in violation of the money laundering statute.

We cannot agree. Salcido's interpretation of section 1956(a)(3) ignores the plain language of the rest of section 1956, as well as the legislative history of section 1956(a)(3). The definition of financial transaction encompasses the movement of funds by means other than wire, as well as transactions involving monetary instruments. See 18 U.S.C. § 1956(c)(4). In addition, section 1956(a)(3) expressly contemplates an attempt to conduct a financial transaction in the context of a sting operation. The most logical interpretation of section 1956(a)(3) is not that "financial transaction" was intended to exclude transactions which did not involve monetary instruments.⁴ Rather, we believe Congress intended that section 1956(a)(3) apply to the very situation presented by this case — a sting operation in which the property involved was not in fact proceeds (as required in section 1956(a)(1)),⁵ but rather, was property represented and believed by the defendant to be proceeds.

The legislative history of section 1956(a)(3) bolsters our conclusion. Senator Biden, chairman of the Judiciary Committee and proponent of section 1956(a)(3) as an amendment to section 1956, addressed the differences between section 1956(a)(1) and section 1956(a)(3) as follows, "the present statute does not provide for such operations because it permits a conviction only where the laundered money `in fact involved proceeds of specified unlawful activity.'" 134 Congr.Rec. S17360, 17365 (Nov. 10, 1988). Section 1956(a)(3) was added to "permit undercover law enforcement officers to pose as drug traffickers in order to obtain evidence necessary to convict money launderers." Id.

We find Salcido's analysis of attempt under section 1956(a)(3)(B) similarly unpersuasive. Defendant contends that "attempt" was included in section 1956(a)(3)(B) only to address incomplete transactions. In support, he relies on United States v. Loehr, 966 F.2d 201 (6th Cir.), cert. denied, ___ U.S. ___, 113 S.Ct. 655, 121 L.Ed.2d 582 (1992). In Loehr, the defendant was a car salesman who accepted cash, represented to him by undercover agents to be drug proceeds, for the purchase of a car. Id. at 202. Although the transaction was never fully completed, the defendant was arrested and convicted for attempted money laundering. Id. at 202-03. In this context, the court discussed the requirements of prosecution for attempt under section 1956(a)(3)(B) and concluded that the government was not required to prove a completed transaction to sustain a conviction for attempt. Id. at 203. From this, Salcido reasons that he is not guilty of attempted money laundering because the transaction here was complete. Yet, he claims that, even fully completed, the transaction here could not form the basis for a conviction under section 1956(a)(3)(B) because it is impossible to violate section 1956(a)(3)(B) unless a monetary instrument is involved. Salcido concludes that his intent is irrelevant.

However, this is not a case of legal impossibility where, regardless of intent, a defendant's actions "even if fully carried out as the defendant desires would not constitute a crime." United States v. Conway, 507 F.2d 1047, 1050 (5th Cir.1975). If Salcido's actions had been fully carried out as he planned, he would have violated section 1956(a)(1)(B)(i) of the money laundering statute. As it was, this was factually impossible because circumstances unknown to him prevented him from completing the crime he set out to commit. This does not, however, prevent him from violating section 1956(a)(3)(B) because, if so, section 1956(a)(3) is meaningless. No defendant intends to get caught by a sting operation.

We conclude that impossibility is not a defense in the instant case. As the court in United States v. Parramore, 720 F.Supp. 799 (N.D.Cal.1989) (a § 1956(a)(2) money laundering case), recognized, section 1956(a)(3) was enacted to eliminate the impossibility defense. In addition, the Tenth Circuit has held, "Factual impossibility may fall away as a defense to an attempt charge when adequate proof of intent to commit a specific crime exists ... Evidence of intent may be coupled with proof of a defendant's acts which stamp his conduct as criminal in nature." United States v. Johnson, 767 F.2d 673, 675 (10th Cir.1985) (citing Conway, 507 F.2d at 1050).

Defendant contends that Johnson implicitly recognized factual impossibility as a defense. This may be true in cases where a defendant's acts are commonplace and not sufficiently unique to evidence an intent to commit a criminal act. However, in this case, the defendant's acts were not commonplace and were sufficiently suspect to "stamp his conduct as criminal in nature." Johnson at 675 (citing United States v. Oviedo, 525 F.2d 881, 885 (5th Cir.1976)). Picking up $58,000 in cash and carrying the money in large bills across the country on one's person are not commonplace activities frequently carried on by those who legally transfer money in ordinary business transactions.

Salcido also argues that the government failed to present evidence of an intent to conceal or disguise the nature, location, source, ownership, or control of the property. Salcido...