United States v. David Clouden ( 2013 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________
No. 11-4522
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UNITED STATES OF AMERICA
v.
DAVID CLOUDEN,
Appellant
___________
On Appeal from the District Court
of the Virgin Islands
(D.C. Criminal No. 1-07-cr-00042-008 )
District Judge: Honorable Anne E. Thompson
___________
Submitted Under Third Circuit L.A.R. 34.1(a)
April 24, 2013
Before: McKEE, Chief Judge, SCIRICA AND VANASKIE, Circuit Judges
(Filed: July 31, 2013)
___________
OPINION
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VANASKIE, Circuit Judge.
Appellant David Clouden appeals his convictions on one count of conspiracy to
commit money laundering, in violation of 18 U.S.C. § 1956(h), and five counts of money
laundering, in violation of 18 U.S.C. §1956(a)(1)(B)(i). Clouden contends that the
evidence was insufficient to sustain a conviction on any of the six counts. He further
argues that the District Court erroneously admitted testimony from his mother identifying
his signature. We reject these arguments and will affirm the District Court’s judgment.
I.
We write primarily for the parties, who are familiar with the facts and procedural
history of this case. Accordingly, we set forth only those facts necessary to our analysis.
In 2001, Myron Punter, a native of the Virgin Islands, began selling cocaine in
Alaska. Punter obtained the cocaine via express mail from Isaiah Fawkes, a childhood
friend who was still residing in the Virgin Islands. Pursuant to their agreement, Fawkes
mailed Punter five to nine ounces of cocaine approximately once per week from 2001 to
early 2003. In return, Punter sent Fawkes payments of approximately $5,000 to $9,000
via Western Union wire transfers or money orders. After becoming concerned that the
high volume of Western Union transactions in their names might raise suspicion, Fawkes
and Punter began to use surrogate senders and receivers to transmit the drugs and
payments. Punter recruited acquaintances in Alaska, including Leigh Bennett, to send
money to Fawkes on his behalf, while Fawkes provided Punter with the names of
individuals in the Virgin Islands to whom payment should be sent.
David Clouden – a friend of Fawkes who also grew up in Frederiksted, St. Croix –
was one of the individuals to whom Punter sent money at Fawkes’ direction. Between
August 20, 2002, and October 19, 2002, while he was residing in St. Croix, Clouden
received five money wire transfers from senders in Alaska. The first four transfers were
from Bennett in the amounts of $3,000; $6,500; $6,000; and $7,000, respectively. The
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final transfer of $2,000 was sent by Punter himself. Although Clouden had never met
Bennett or Punter, he accepted and cashed the wire transfers, which totaled $24,500.
On June 14, 2007, a grand jury returned an indictment charging Clouden and
seven co-defendants with conspiracy to distribute cocaine, conspiracy to commit money
laundering, and various substantive money laundering offenses. Clouden and six other
co-defendants proceeded to trial.1 The jury convicted Clouden of one count of
conspiracy to commit money laundering, in violation of 18 U.S.C. § 1956(h), and five
counts of money laundering, in violation of 18 U.S.C § 1956(a)(1)(B)(i).2 Clouden was
later sentenced to concurrent terms of twenty-eight months’ imprisonment, three years of
supervised release, and a special assessment. Clouden timely appealed his conviction on
all counts. He does not appeal any portion of his sentence.
II.
1
Five of Clouden’s co-defendants’ appeals were joined with this case. See
United States v. Garcia, No. 11-1999; United States v. Maragh, No. 11-2036; United
States v. Allick, No. 11-4305; United States v. Alfred, No. 11-4343; and United States v.
Young, 11-4344. On January 15, 2013, a panel of this Court affirmed the judgment of
conviction and sentence of co-defendant Fawkes. See United States v. Fawkes, 510 F.
App’x 183 (3d Cir. 2013).
2
Initially, the Government also charged Clouden with money laundering under a
“promotion theory” pursuant to section 1956(a)(1)(A)(i). The District Court later granted
the Government’s motion to strike the promotion language from all counts of the
indictment, and thus the jury was presented with a redacted indictment charging Clouden
under only a “concealment theory” pursuant to section 1956(a)(1)(B)(i). (Compare
Supplemental Joint Appendix [“S.J.A.”] 49-50 (redacted indictment), with Supplemental
Appendix [“S.A.”] 21-22 (original indictment).) Nonetheless, Clouden’s judgment of
conviction specifies section 1956(a)(1)(A)(i) as the basis for the guilty verdict. Because
the redacted indictment only references section 1956(a)(1)(B)(i), and in light of the
parties’ silence as to this error in the judgment, we will assume the judgment’s reference
to section 1956(a)(1)(A)(i) is merely a scrivener’s error.
3
The District Court had jurisdiction under 48 U.S.C. § 1612(a) and 18 U.S.C. §
3231, and we have appellate jurisdiction pursuant to 28 U.S.C. § 1291.
A.
Clouden first challenges the sufficiency of the evidence supporting his
convictions. Clouden moved for a judgment of acquittal on all counts at the close of the
Government’s case, and the District Court denied the motion. When a defendant
challenges the sufficiency of the evidence in the district court, we exercise plenary review
on appeal and must affirm the jury’s verdict if “there is substantial evidence that, when
viewed in the light most favorable to the government, would allow a rational trier of fact
to convict.” United States v. Lee, 612 F.3d 170, 178 (3d Cir. 2010) (citation omitted)
(internal quotation marks omitted). Our review is “particularly deferential,” as “[i]t is not
for us to weigh the evidence or to determine the credibility of the witnesses.” United
States v. Dent, 149 F.3d 180, 187 (3d Cir. 1998) (citation omitted) (internal quotation
marks omitted). Clouden therefore carries a “very heavy burden” on his sufficiency
challenges. Id. (citation omitted) (internal quotation marks omitted).
To obtain a conviction for money laundering under 18 U.S.C. § 1956(a)(1)(B)(i),
the Government has the burden of establishing beyond a reasonable doubt: “(1) an actual
or attempted financial transaction; (2) involving the proceeds of [a] specified unlawful
activity; (3) knowledge that the transaction involves the proceeds of some unlawful
activity; and (4) . . . knowledge that the transaction [was] designed in whole or in part to
conceal the nature, location, source, ownership, or control of the proceeds of [a] specified
unlawful activity.” United States v. Richardson, 658 F.3d 333, 337-38 (3d Cir. 2011)
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(alteration in original) (citation omitted) (internal quotation marks omitted). Clouden’s
challenge to the sufficiency of the evidence supporting his money laundering convictions
focuses on the third and fourth elements. According to Clouden, “the Government failed
to produce admissible evidence from which a rational trier of fact could logically infer
that [he] knew that the source and nature of the funds were the proceeds of illegal
activity.” (Appellant’s Br. 27.)
We cannot agree. As to the third element, the Government presented evidence
that Fawkes and Punter ran a drug trafficking operation pursuant to which Fawkes sent
Punter cocaine to sell in Alaska, and Punter remitted payment to Fawkes, or someone
designated by Fawkes, via wire transfer or money orders. Multiple witnesses testified
that Fawkes and Clouden were longtime friends who were often seen together in St.
Croix. The evidence further established that Fawkes instructed Punter to send Clouden
funds for the drugs, and that Clouden received and cashed $24,500 in money wire
transfers from Bennett and Punter – both of whom Clouden had never met – in a span of
just over two months. The jury therefore could have reasonably inferred that Clouden
was aware of Fawkes’ drug trafficking activity and received the wire transfers on
Fawkes’ behalf. Viewing this evidence in the light most favorable to the Government,
we hold that a rational juror could have concluded that Clouden knew the money wire
transactions – sent to him by total strangers from Alaska for sums totaling more than
$20,000 – involved the proceeds of some unlawful activity “constitut[ing] a felony under
State, Federal, or foreign law. . . .” 18 U.S.C. § 1956(c)(1); see United States v. Casper,
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956 F.2d 416, 422 (3d Cir. 1992) (observing that the government may satisfy its burden
of proof by circumstantial evidence).
The evidence was likewise sufficient to allow the jury to conclude that the
Government met its burden of proof with respect to the fourth element. The jury heard
testimony that Punter and Fawkes used surrogates to send and receive drugs and money
because they believed they “look[ed] suspicious” by sending and receiving a high volume
of packages and payments in their own names. (Joint Appendix [“J.A.”] 396.)3 Punter
testified that Fawkes supplied him with names of individuals in the Virgin Islands –
including Clouden – to whom payment for drugs should be sent. Furthermore, Bennett
testified that he sent Clouden four wire transfers at Punter’s request. The evidence also
established that Clouden cashed five wire transfers from Punter and Bennett, both of
whom were total strangers to Clouden. Considered in the light most favorable to the
Government, evidence of transactions with such “highly irregular features,” coupled with
evidence of “structuring the transaction[s] in a way to avoid attention,” was sufficient to
allow a rational trier of fact to conclude that Clouden knew that “someone else had [the]
purpose” of concealing the true “nature, location, source, ownership, or control of the
money.” Richardson, 658 F.3d at 340 (“[T]he government need not prove that the
defendant [himself] had the intent to conceal one of the listed attributes of the funds. It is
enough to prove that the defendant knew someone else had that purpose.”) (citation
omitted) (internal quotation marks omitted).
3
Clouden adopts the appendix filed by co-defendant Jamaal Young in United
States v. Young, No. 11-4344.
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Clouden also challenges the sufficiency of the evidence supporting his conspiracy
conviction. To prove a conspiracy to commit money laundering in violation of section
1956(h), the Government must show: “(1) that an agreement was formed between two or
more persons; and (2) that the defendant knowingly became a member of the
conspiracy.” United States v. Greenidge, 495 F.3d 85, 100 (3d Cir. 2007). According to
Clouden, the Government failed to prove that he “knew of the specific objective of the
money-laundering conspiracy and agreed to participate in the specific illegal objective of
the conspiracy.” (Appellant’s Br. 27-28.)
Again, we disagree. In light of the close relationship between Clouden and
Fawkes, and the unusual arrangement to have substantial funds wired to Clouden by total
strangers, a jury could logically conclude that Clouden was aware of the agreement
between Punter and Fawkes when he accepted the wire transfers, and that he accepted the
transfers on Fawkes’ behalf with this knowledge. United States v. Navarro, 145 F.3d
580, 593 (3d Cir. 1998) (“[T]he government can rely entirely on circumstantial evidence
to prove [a] conspiracy [charge] as long as the inferences drawn from the circumstantial
evidence have a logical and convincing connection to the facts established.”) (citation
omitted) (internal quotation marks omitted).
B.
Clouden also alleges several points of error concerning the admission of testimony
from his mother, Kaleen Clouden, identifying his signature on the Western Union checks
cashed in his name. First, Clouden contends that the Government failed to establish an
adequate factual basis for admitting Ms. Clouden’s identification testimony, as required
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by Fed. R. Evid. 701 and 901. Because neither Clouden nor any of his co-defendants
contemporaneously objected to Ms. Clouden’s identification testimony, we review the
District Court’s decision to admit her signature identification testimony for plain error.
See United States v. Moore, 375 F.3d 259, 262 (3d Cir. 2004).
The Federal Rules of Evidence limit lay witnesses to giving opinion testimony that
is: “(a) rationally based on the witness’s perception; (b) helpful to clearly understanding
the witness’s testimony or to determining a fact in issue; and (c) not based on scientific,
technical, or other specialized knowledge. . . .” Fed. R. Evid. 701. A non-expert
witness’s opinion testimony concerning handwriting must also satisfy the requirements of
Rule 901, i.e. the opinion must be based on familiarity with the writing “that was not
acquired for the current litigation.” Fed. R. Evid. 901(b)(2).
We cannot say that the District Court committed plain error by admitting Ms.
Clouden’s signature identification testimony. Prior to giving the testimony, Ms. Clouden
testified that she was Clouden’s mother, and that Clouden lived with her in St. Croix
“[f]rom birth until he became an adult and moved to live with his girlfriend.” (J.A. 584.)
Ms. Clouden also testified that she observed Clouden’s signature while he lived with her,
and that she “know[s]” her son’s signature. (J.A. 566.) Thus, Ms. Clouden’s
identification of Clouden’s signature was “rationally based on” her own perceptions
gained from living with him from birth to adulthood, rather than from technical or
scientific knowledge, or familiarity acquired for trial. See Fed. R. Evid. 701, 901.
Next, Clouden argues that the District Court erroneously allowed the Government
to impeach Ms. Clouden with her grand jury testimony. After establishing the factual
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basis for Ms. Clouden’s signature identification testimony, the Government introduced
the checks cashed in Clouden’s name and asked Ms. Clouden if she recognized the
signatures on those checks. (See S.J.A. 490-524) (exhibits 7A-7E). Ms. Clouden
testified that she did not recognize the signatures on the checks in exhibit 7B, even
though she testified before the grand jury that she did recognize the signatures on those
checks as her son’s.4 The Government then attempted to impeach Ms. Clouden using the
copies of the checks she had identified and initialed before the grand jury (exhibit 1B).
Following repeated objections by defense counsel, the Government abandoned its efforts
to impeach and opted instead to pursue in-court identification of the signatures. Thus,
Clouden’s argument that the Government engaged in improper impeachment is wholly
inapposite, because Ms. Clouden was, in fact, never impeached.5
Finally, Clouden argues that the Government improperly bolstered Ms. Clouden’s
signature identification testimony during closing arguments by stating: “In fact, a
nonexpert may even be more qualified [than an expert], at least with respect to a single
signature that they are familiar with . . . .” (S.J.A. 450.) We agree with the Government
4
Before the grand jury, copies of the checks with Ms. Clouden’s initials
indicating her recognition of Clouden’s signature were entered into evidence as exhibit
1B.
5
Clouden further argues that the Government violated Brady v. Maryland, 373
U.S. 83 (1963), and Giglio v. United States, 405 U.S. 150 (1972), by not disclosing the
checks initialed by Ms. Clouden during her grand jury testimony (exhibit 1B) until trial.
This argument is meritless because, as the record makes clear, defense counsel received
copies of these documents on August 14, 2007, well before trial commenced. (See S.A.
26) (Government’s Notice Regarding Availability of Discovery) (listing documents
including “Money Wire Transfer Records – Identification of Clouden’s Signature by
Kathleen Clouden”).
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that this statement “was a common sense response invited by Clouden’s argument that
[Ms. Clouden] lacked the ability to identify her son’s signature simply because the FBI
could not perform a comparison” and only experts were qualified to identify writings.
(Gov’t Br. 33-34.) Nothing in the Government’s remarks improperly vouched for Ms.
Clouden’s credibility or testimony, or “reference[d] extra-record evidence” so as to
constitute improper bolstering. Hartey v. Vaughn, 186 F.3d 367, 371-72 (3d Cir. 1999).
III.
For the foregoing reasons, we will affirm the District Court’s judgment.
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