United States v. Ronald Myers , 854 F.3d 341 ( 2017 )

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 17a0085p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA, ┐
Plaintiff-Appellee, │
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> No. 15-2238
v. │
│
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RONALD BRUCE MYERS, │
Defendant-Appellant. │
┘
Appeal from the United States District Court
for the Western District of Michigan at Grand Rapids.
No. 1:14-cr-00172—Robert Holmes Bell, District Judge.
Argued: October 18, 2016
Decided and Filed: April 14, 2017
Before: MERRITT, ROGERS, and KETHLEDGE, Circuit Judges.
_________________
COUNSEL
ARGUED: Kenneth P. Tableman, KENNETH P. TABLEMAN, P.C., Grand Rapids, Michigan,
for Appellant. Jennifer L. McManus, UNITED STATES ATTORNEY’S OFFICE, Grand
Rapids, Michigan, for Appellee. ON BRIEF: Kenneth P. Tableman, KENNETH P.
TABLEMAN, P.C., Grand Rapids, Michigan, for Appellant. Jennifer L. McManus, Michael A.
MacDonald, UNITED STATES ATTORNEY’S OFFICE, Grand Rapids, Michigan, for
Appellee.
ROGERS, J., delivered the opinion of the court in which MERRITT, J., joined, and
KETHLEDGE, J., joined in part. KETHLEDGE, J. (pp. 21–24), delivered a separate opinion
concurring in part and dissenting in part.
No. 15-2238 United States v. Myers Page 2
_________________
OPINION
_________________
ROGERS, Circuit Judge. Ronald Myers is a serial thief of motor homes. During his
latest spree of thefts, Myers stole at least eight motor homes and then sold them to unsuspecting
dealers, posing as their legitimate owner by using clone titles. A jury convicted him of multiple
counts of interstate transportation of stolen vehicles, money laundering, and related conspiracies,
and he was sentenced to 360 months’ imprisonment. On appeal, Myers challenges his money-
laundering convictions, arguing that the district in which he stole the motor homes was not the
proper venue for his money-laundering convictions, because he sold the homes outside of that
district. That challenge fails, both as a statutory argument and as a constitutional argument.
Proper venue lay in the trial district under the plain text of the money-laundering statute because
Myers was properly charged with his interstate thefts in the district and because Myers
participated in removing the theft’s proceeds out of the district. Venue was constitutionally
permissible because Myers partially committed concealment money laundering in the trial
district by there obtaining possession of the theft’s unlawful proceeds, which he would launder
elsewhere. Myers’s other appellate arguments—alleging multiplicitous charging, improper
denial of self-representation, and erroneous sentencing—also fail.
I.
Ronald Myers was born on November 11, 1958. Using about 105 other names, eleven
other dates of birth, and eleven other social security numbers / employer identification numbers,1
Myers has devoted his life to stealing. His criminal record begins at age 12, when he was
charged with shoplifting; he was committed to a Utah prison at age 16 for stealing a car; and, all
told, he accumulated about 47 arrests as a juvenile. As an adult, in 1977, and under the name
David Lawrence Herdrich, Myers was convicted of stealing a car in Florida after posing as a
hitchhiker, and served a year in jail. In 1982, and under the name Alan Brooks, Myers was
convicted of burglarizing a motor home parked at a ski resort, and spent another year in jail. In
1
During sentencing, when the court asked Myers if those numbers were correct, Myers affirmed that they
were, and added, “Actually I believe the number would probably be higher than that.”
No. 15-2238 United States v. Myers Page 3
1983, under the name Michael Howley, Myers was convicted in Kentucky of theft by deception
for filing five refund applications for traveler checks, and was sentenced to five years’
imprisonment. Myers escaped from the Kentucky prison after just a few months, and in 1987,
under the name Richard David Parker, Myers was convicted of conspiring to possess and pass
counterfeit Federal Reserve notes, and was transferred to Kentucky to serve the remaining
Kentucky sentence.
Sometime in the late 1980s, Myers began focusing his criminal activities on stealing
motor homes. In 1988, he was convicted in Georgia of interstate transportation of counterfeit
motor home titles, and was sentenced to ten years’ imprisonment. He was paroled early in 1996.
In 1998, he was convicted in Mississippi of conspiring to transport stolen motor homes, and was
sentenced to 44 months’ imprisonment. In 2004, he was arrested once again, was later convicted
of interstate transportation of a stolen vehicle, and was sentenced to 60 months’ imprisonment.
Myers has also been jailed repeatedly for violating his parole.
Myers met Walter Nunley, his main coconspirator in this round of thefts, in the early
1990s while they were both imprisoned in Kentucky. In September 2011, when Myers was
released after being imprisoned for violating his parole, Nunley picked Myers up at the prison,
and the pair went straight to work on stealing motor homes. By the time they were arrested, they
had stolen at least eight motor homes across the United States.
Myers and Nunley stole and profited from motor homes using the same general method.
Myers would first identify target motor homes online and contact their owners to obtain the
motor homes’ vehicle identification numbers (VINs), ostensibly to conduct a Carfax search on
them. Myers would then forge Virginia titles for the targeted motor homes using their VINs.
Using the forged Virginia titles, Myers would next apply for a clone title from either Mississippi
or Illinois, as neither state verified that the out-of-state title—here, the forged Virginia title—was
real. Myers and Nunley would then steal the targeted motor homes using master keys that they
obtained online, pose as legitimate owners of the stolen motor homes using the clone titles from
Mississippi or Illinois, and sell the motor homes to unsuspecting dealers.
No. 15-2238 United States v. Myers Page 4
Myers and Nunley applied that method to steal three motor homes in the Western District
of Michigan. They stole a 2006 Country Coach Rembrant in Holland, Michigan, a 2004
Newmar Essex in Kent County, Michigan, and a 2005 Holiday Rambler also in Kent County,
Michigan. From other places, Myers and Nunley stole at least five more motor homes.
The criminal partnership unraveled, however, and in March 2013, Nunley began
cooperating with an FBI agent who was already investigating their crimes. In a related case,
Nunley was convicted of multiple counts of interstate transportation of stolen vehicles, money-
laundering conspiracy, and other related counts. He was sentenced to 188 months’ imprisonment
and ordered to pay about $1.45 million in restitution.
The superseding indictment charged Myers with seven counts. The first count charged
the overarching conspiracy to steal motor homes, transport them across state lines, and sell them,
all in violation of 18 U.S.C. § 371. The next three counts accused Myers of transporting each of
the three motor homes stolen from Michigan and in interstate commerce in violation of
18 U.S.C. § 2312. The fifth count accused Myers of money-laundering conspiracy in violation
of 18 U.S.C. § 1956(h). The final two counts accused Myers of substantive concealment money
laundering in violation of 18 U.S.C. § 1956 for selling the stolen motor homes by posing as their
legitimate owner and for retrieving the sale money in cash.
Myers filed a number of motions before trial. He first moved to represent himself. The
district court held a hearing on the motion. During the hearing, as the district court probed
Myers’s understanding of the risks of representing himself, Myers repeatedly interrupted. When
the government objected to Myers’s self-representation because Myers had indicated, during his
recorded prison calls, that he wanted to represent himself to drag out the trial and to cost the
government as much money as possible, Myers admitted to the court: “I said if the government is
going to make a mountain out of a molehill, I’ll make it Mt. Everest”; “what I’m going to do is
put the government’s case to challenge, which is going to cost a lot of money.”2 Myers also
2
Similarly, Myers has stated during his prison calls: “This trial’s going to cost them a million dollars if they
take me up there”; “If they take me there, it’s like a little vacation. I love to do legal work, so I’ll have some fun”;
“But I’ll file so much paperwork you guys will spend $100,000 over this. Even if I lose, you guys will lose another
couple furlough days for you and your buddies”; “I love to do this stuff. It’s what makes me happy. I like doing
legal work.” During these calls, Myers also variously admitted his guilt, telling his family that there was a stolen
No. 15-2238 United States v. Myers Page 5
continued to interrupt the court. The district court therefore denied Myers’s motion to represent
himself, explaining:
[W]hat I’m concerned about in this case is it’s going to get rolling and you’re just
going to go on and interrupt people, interrupt the government. You’re going to
interrupt me. You’ve interrupted me already several times, and we’re going to
have difficulty seeing that your presumption of innocence is held first in this
matter and that the government – let the record reflect this gentleman is shaking
his head.
I’m going to deny your motion. I don’t think I can – I don’t think I can control
you if you’re representing yourself.
Myers responded that he “intend[ed] to interlocutory appeal immediately.” The district court
instructed Myers’s counsel to continue to represent Myers and asked Myers to “understand” that
his “role is to assist her.” Myers retorted, “No, sir, Your Honor,” “Have a nice day,” and tried to
walk away from the court. Myers later moved again to represent himself, “apologiz[ing]” for the
interruptions and “assur[ing]” the court that “this will not happen again,” but the court denied the
motion once again, expressing its lack of “inclin[ation] to credit his assurances based on his
demonstrated conduct during the last court proceeding.” Myers then filed an interlocutory
appeal of that denial and also moved to stay the district court’s proceedings. We dismissed that
appeal because there was no final judgment to review.
Myers also filed a petition for a writ of mandamus in this court to require the district
court judge to recuse himself. We denied that petition.
Myers filed another petition for a writ of mandamus in this court to disqualify the
prosecutor and to direct the district court to allow Myers to represent himself. We also denied
that petition.
Back at the district court, Myers filed a motion to dismiss the indictment “for duplicity,”
arguing roughly that the government had improperly charged one crime in multiple counts of
conspiracies. The district court initially took the motion under advisement. Later, when Myers
raised the issue again during trial, the court denied the motion, explaining that the government
“baby” in Florida, to “store the RV, you know, the baby,” alleging that there was “no giant conspiracy,” but instead
“[i]t was me by myself committing crimes,” and so on.
No. 15-2238 United States v. Myers Page 6
had properly charged one overarching conspiracy to steal motor homes and three substantive
counts of interstate transportation of stolen vehicles for each of the three motor homes stolen
from the Western District of Michigan.
Myers also moved to dismiss the money-laundering counts for improper venue on the
theory that the alleged money-laundering activities occurred outside of the Western District of
Michigan. The district court denied that motion, too. The court reasoned that proper venue lay
in the district for money-laundering conspiracy under Whitfield v. United States, 543 U.S. 209
(2005), because the government had alleged that several overt acts in furtherance of the money-
laundering conspiracy had occurred in the Western District of Michigan. The court further
reasoned that proper venue lay in the district for the two substantive counts of concealment
money laundering under United States v. Aronds, No. 98-1990, 2000 WL 303003 (6th Cir. Mar.
14, 2000) (unpublished table decision), because even though Myers was not charged to have
conducted the money laundering in the district, Myers was in any event charged with stealing the
motor homes from the Western District of Michigan and transporting those motor homes out of
the district, and of laundering specifically the proceeds of those thefts.
After a week-long trial, the jury convicted Myers of all counts.
The presentence report calculated the applicable Guidelines range to be 360 to 1,140
months’ imprisonment. That calculation relied in part on enhancements based on the loss
amount, the use of sophisticated means under USSG § 2B1.1(b)(10), “sophisticated laundering”
under USSG § 2S1.1(b)(3), and Myers’s role as an organizer or leader under USSG § 3B1.1(a).
The district court imposed a sentence of 360 months’ imprisonment—the bottom of the
applicable Guidelines range. The court rejected Myers’s various objections to his sentence.
On appeal, Myers challenges both his conviction and his sentence for a variety of
reasons. He argues that his money-laundering convictions cannot stand because they were
rendered in an improper venue; that the jury was improperly instructed as to that venue; that the
charges against him were doubly multiplicitous, because the three counts of interstate
transportation of stolen vehicles were multiplicitous with respect to the general conspiracy count,
and because the general conspiracy count was multiplicitous with respect to the count of money-
No. 15-2238 United States v. Myers Page 7
laundering conspiracy; that the district court improperly denied him his right to self-
representation; and that the district court erroneously sentenced him by miscalculating the
intended loss of his thefts, by applying two enhancements for his use of sophisticated means, by
applying an enhancement for his role as a leader, and by failing to apply an amendment to the
Guidelines that was pending at the time of his sentencing.
II.
Myers was properly convicted of the money-laundering counts in the Western District of
Michigan, notwithstanding his venue arguments. For substantive money laundering, the money-
laundering statute permits venue in “any district where a prosecution for the underlying specified
unlawful activity could be brought, if the defendant participated in the transfer of the proceeds of
the specified unlawful activity from that district to the district where the financial or monetary
transaction is conducted.” 18 U.S.C. § 1956(i)(1)(B). Myers committed the underlying crimes,
interstate transportations of stolen vehicles, in the Western District of Michigan because he stole
three motor homes in that district and transported the stolen motor homes away from that district
before selling them and thereby laundering the proceeds of his thefts. Under the plain text of the
money-laundering statute, criminal venue lay in the Western District of Michigan therefore not
only for the interstate transportation of stolen vehicles, but also for substantive money laundering
and money-laundering conspiracy. That statutory extension of venue moreover does not violate
the U.S. Constitution’s two provisions guaranteeing local prosecution.
As applied to this case, Myers was properly prosecuted in the Western District of
Michigan for his “underlying” crimes of interstate transportation of stolen vehicles because he
stole the motor homes there and removed them from there. Generally speaking, in criminal
prosecutions, proper venue lies in “a district where the offense was committed,” Fed. R. Crim. P.
18. The federal crime of interstate transportation of stolen vehicles prohibits “transport[ing] in
interstate . . . commerce a motor vehicle . . . [while] knowing the same to have been stolen.”
18 U.S.C. § 2312. Myers stole the three motor homes in two towns, both in the Western District
of Michigan, see 28 U.S.C. § 102(b). Myers then transported the motor homes out of Michigan,
by either personally driving them across state lines, or instructing Nunley to do so. Myers
No. 15-2238 United States v. Myers Page 8
therefore committed interstate transportation of stolen vehicles in Michigan and was properly
prosecuted there for those crimes.
Myers also transferred the “proceeds” of his interstate vehicular thefts out of Michigan
before selling those “proceeds.” The money-laundering statute defines “proceeds” to mean “any
property derived from or obtained or retained, directly or indirectly, through some form of
unlawful activity, including the gross receipts of such activity.” 18 U.S.C. § 1956(c)(9). Under
that definition, the stolen motor homes themselves were the proceeds of Myers’s interstate thefts;
they were “propert[ies] . . . obtained . . . through some form of unlawful activity,” namely,
interstate vehicular thefts under 18 U.S.C. § 2312. So when Myers drove those stolen motor
homes out of Michigan, or directed Nunley to do so, he “participated” in transferring the
“proceeds” of his thefts out of Michigan. Once outside of Michigan, Myers completed the
laundering of those “proceeds” by using the stolen motor homes’ clone titles to sell them to
unsuspecting dealers and by withdrawing the sale money in cash.
Because Myers was properly prosecuted in Michigan for the “underlying” interstate
transportation of stolen vehicles, and because Myers then “participated” in transferring the
thefts’ “proceeds” out of Michigan before selling them, Myers was also properly prosecuted in
Michigan for his concealment money laundering. See 18 U.S.C. § 1956(i)(1)(B).
Myers concedes that “[i]f motor homes are proceeds, then venue is proper in the Western
District of Michigan” for concealment money laundering. But Myers argues, against plain text,
that the stolen motor homes were not “proceeds” under the money-laundering statute, 18 U.S.C.
§ 1956(c)(9), because “proceeds” should not encompass all “property . . . obtained . . . through
some form of unlawful activity,” as the text plainly states, 18 U.S.C. § 1956(c)(9), but rather
should be limited to “money or other property obtained from a financial transaction involving the
stolen motor homes.”
That argument, however, not only contravenes the plain text of the quoted venue
provision, but also renders the provision largely meaningless. The statute permits venue not only
in, as quoted above, “any district where prosecution for the underlying specified unlawful
activity could be brought, if the defendant participated in the transfer of the proceeds of the
No. 15-2238 United States v. Myers Page 9
specified unlawful activity from that district to the district where the financial or monetary
transaction is conducted,” 18 U.S.C. § 1956(i)(1)(B), but also in “any district in which the
financial or monetary transaction is conducted,” 18 U.S.C. § 1956(i)(1)(A). If, as Myers argues,
“proceeds” are limited to properties “obtained from a financial transaction involving [the stolen
good],” then venue under (B) would effectively be no broader than venue under (A), rendering
(B) superfluous.
Moreover, the plain meaning of the money-laundering statute’s extension of venue does
not violate the U.S. Constitution. Two constitutional provisions limit venue in criminal
prosecutions to the locus delicti, the place where the crime was committed. Article III requires
that “[t]he Trial of all Crimes . . . shall be held in the State where the said Crimes shall have been
committed.” U.S. Const. art. III, § 2, cl. 3. The Sixth Amendment similarly requires that “[i]n
all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an
impartial jury of the State and district wherein the crime shall have been committed.” U.S.
Const. amend. VI. The Supreme Court has interpreted those provisions to permit prosecution in
a district where the crime was committed in part. Myers’s concealment money laundering was
completed elsewhere, but it was begun and therefore committed in part in the Western District of
Michigan, where he stole the motor homes that he would later liquidate, and where he thereby
gained possession of the “proceeds of specified unlawful activity” whose source he would later
conceal. Because he committed the crime in part in the district, Myers was properly prosecuted
for concealment money laundering in the Western District of Michigan.
The Court has held that the “locus delicti [of the charged offense] must be determined
from the nature of the crime alleged and the location of the act or acts constituting it,” by first
“identify[ing] the conduct constituting the offense (the nature of the crime)” and then by
“discern[ing] the location of the commission of the criminal acts.” United States v. Rodriguez-
Moreno, 526 U.S. 275, 279 (1999) (quoting United States v. Cabrales, 524 U.S. 1, 6–7 (1998))
(internal quotation marks omitted) (alteration in original). The charged crime here is
concealment money laundering, in which someone, “knowing that the property involved in a
financial transaction represents the proceeds of some form of unlawful activity, conducts . . .
such a financial transaction . . . to conceal or disguise the nature, the location, the source, the
No. 15-2238 United States v. Myers Page 10
ownership, or the control of the proceeds of specified unlawful activity.” 18 U.S.C.
§ 1956(a)(1). The ultimate criminal act that is prohibited is “conduct[ing]” a financial
transaction involving “the proceeds of some form of unlawful activity” to conceal the proceeds’
illegal source. To conduct that transaction, however, the launderer must ordinarily have
possession of the unlawful proceeds to be laundered. In most cases of concealment money
laundering, then, the criminal act of “conduct[ing]” the prohibited financial transaction will
include an antecedent conduct of obtaining possession over the unlawful proceeds. That was
indeed the case here. Before Myers laundered the proceeds of his theft, he first gained
possession of the proceeds—the motor homes themselves—by stealing them, in the Western
District of Michigan. As charged against Myers, therefore, the criminalized conduct of
concealment money laundering, “conduct[ing]” a financial transaction that conceals the criminal
source of “the proceeds of specified unlawful activity,” was committed in part in the Western
District of Michigan, where he gained possession of the “proceeds of specified unlawful
activity.”
The Supreme Court has similarly broadly interpreted an analogous statute’s criminal
conduct. In Rodriguez-Moreno, the statute criminalized “us[ing] or carr[ying] a firearm” “during
and in relation to any crime of violence,” 18 U.S.C. § 924(c)(1). The defendant was tried in New
Jersey, to which he took a kidnapped victim, even though he actually kidnapped the victim in
Texas, and was proven to have “use[d] or carrie[d] a firearm” only in Maryland. Rejecting the
argument that the Constitution required prosecution of the crime in Maryland, the Court reasoned
that “the crime of violence element,” even though it is “embedded in a prepositional phrase and
not expressed in verbs,” is still an essential element of a crime, and so the “defendant’s violent
acts are essential conduct elements.” Rodriguez-Moreno, 526 U.S. at 280. The Court therefore
approved of the defendant’s prosecution in New Jersey, where the underlying “crime of
violence,” the kidnapping, was committed in part, and therefore where the charged crime of
“us[ing] or carr[ying] a firearm” “during and in relation to any crime of violence,” 18 U.S.C.
§ 924(c)(1), was committed in part. That reasoning supports our interpretation of the money-
laundering statute. While “proceeds of . . . unlawful activity” is not expressed in verbs,
concealing the criminal source of those proceeds through a transaction can certainly include
No. 15-2238 United States v. Myers Page 11
possessing or otherwise exercising control over those proceeds, and obtaining possession or
control can therefore be a “part of the conduct constituting the offense.”
Because Myers’s concealment money laundering, as charged, was proven to have been
committed in part in the Western District of Michigan, where he obtained possession of the
unlawful proceeds that he would later sell, Myers was properly prosecuted for the whole crime in
that district. “[W]here a crime consists of distinct parts which have different localities the whole
may be tried where any part can be proved to have been done.” United States v. Lombardo,
241 U.S. 73, 77 (1916). The Supreme Court has therefore repeatedly approved as
constitutionally permissible the prosecution of a crime in a district in which the crime was
committed only in part. In Palliser v. United States, 136 U.S. 257 (1890), where the criminal
conduct was mailing a letter to induce an official’s dereliction of his duties, and where the
defendant sent the letter across state lines from New York to Connecticut, the Court upheld
venue in Connecticut, even though the crime of sending the letter was already completed in New
York, and the defendant never entered Connecticut. The Court explained: “[T]here can be no
doubt at all, if any offense was committed in New York, the offense was continuing to be
committed when the letter reached the postmaster in Connecticut.” Id. at 267. Similarly, in
Armour Packing Co. v. United States, 209 U.S. 56 (1908), where the criminal conduct was
“giv[ing] or receiv[ing] transportation at less than the published rate,” id. at 80, the Court held
the crime was a “continuing” offense that was committed in every state that the transportation
occurred, “for transportation is an essential element of the offense, and . . . transportation equally
takes place over any and all of the traveled route, and during the transportation the crime is being
constantly committed,” id. at 76. Anticipating the concern that the crime then burdens criminal
defendants by exposing them to prosecutions in several states, the Court responded: “To say that
this construction may work serious hardship in permitting prosecutions in places distant from the
home and remote from the vicinage of the accused is to state an objection to the policy of the
law, not to the power of Congress to pass it.” Id. at 77.
In an unpublished opinion involving nearly identical facts to those before us, we have
already interpreted concealment money laundering to permit venue in a district where none of
the laundering transactions were proven to have occurred, and we did so relying on a reasoning
No. 15-2238 United States v. Myers Page 12
that is broader than the reasoning here. In United States v. Aronds, No. 98-1990, 2000 WL
303003 (6th Cir. Mar. 14, 2000), the defendant, as here, was charged with multiple counts of
interstate transportation of stolen property and of money laundering in a single district, even
though he was charged to have conducted the financial transactions exclusively elsewhere.
Approving the propriety of criminal venue for money laundering in that case, we explained,
“Aronds was also charged with the ‘anterior criminal conduct that yielded the funds allegedly
laundered.’” Aronds, 2000 WL 303003, at *11 (quoting Cabrales, 524 U.S. at 7). Here, too,
Myers was charged with the anterior criminal conduct, the interstate thefts, that yielded the funds
allegedly laundered. But Myers was furthermore charged with obtaining possession in the trial
district of the unlawful proceeds that he would launder elsewhere. While Aronds is an
unpublished opinion, and while in Aronds we also relied on the fact that the defendant had
forfeited the constitutional venue issue by failing to raise it below, the broadly permissive
reasoning in Aronds supports the more particularized upholding of constitutional venue in this
case.
The Eighth Circuit has also interpreted concealment money laundering to permit venue in
a district where none of the laundering transactions were proven to have occurred, relying on an
analysis that is also more broadly permissive than our analysis here. In United States v. Nichols,
416 F.3d 811, 823–24 (8th Cir. 2005), the defendants fraudulently collected money from victims
in California, Tennessee, and Missouri, and laundered the proceeds of their fraud exclusively in
California. The government prosecuted them for the underlying fraud and for concealment
money laundering in the Western District of Missouri. The Eighth Circuit upheld venue in that
case as constitutional, explaining that “[the relevant defendant] was charged with causing money
obtained by fraud to be transported from Missouri to California” and also “charged with a
conspiracy linking him to fraudulent acts committed in Missouri.” Nichols, 416 F.3d at 824.
Here, too, Myers was charged with participating in transferring the proceeds of his thefts out of
Michigan, and also charged with a conspiracy to steal those motor homes and transport them in
interstate commerce in Michigan. More specifically, however, Myers also obtained possession
of the proceeds of his unlawful activity in Michigan. The reasoning in Nichols therefore
supports venue more forcefully in this case than it did there.
No. 15-2238 United States v. Myers Page 13
United States v. Cabrales, 524 U.S. 1 (1998), is entirely consistent with our analysis. In
that case, the defendant was prosecuted in Missouri for money laundering in Florida, but was not
charged with the underlying unlawful activity in Missouri, was not charged with having
transported the proceeds of the unlawful activity from Missouri to Florida, and was therefore not
charged to have obtained possession of the unlawful proceeds in Missouri. Id. at 4–5. Thus the
indictment charged the defendant of criminal conduct that occurred exclusively in Florida, and
under those limited circumstances, the Court held, the Constitution required prosecution in
Florida. Cabrales is distinguishable not just because, as we reasoned in Aronds, Myers was
charged with the anterior criminal conduct that yielded the laundered proceeds, and not just
because, as the Eighth Circuit reasoned in Nichols, Myers was charged with transferring the
unlawful proceeds out of Michigan and charged with an overarching conspiracy that linked
Myers to the thefts in Michigan, but also because, as we reason more specifically here, Myers
was charged in particular with having gained possession in Michigan of the unlawful proceeds
that he would sell elsewhere.
In upholding the Eighth Circuit’s judgment in Cabrales, the Supreme Court accepted
much of the Eighth Circuit’s reasoning:
“Cabrales was not accused of a ‘continuing offense,’” the Eighth Circuit said;
“[s]he was charged with money laundering, for transactions which began,
continued, and were completed only in Florida[.]” “That the money came from
Missouri is of no moment,” the Court of Appeals next observed, for “Cabrales
dealt with it only in Florida.” The money-laundering counts “include[d] no act
committed by Cabrales in Missouri,” the Eighth Circuit emphasized, nor did “the
[G]overnment charge that Cabrales transported the money from Missouri to
Florida.”
Cabrales, 524 U.S. at 5 (quoting United States v. Cabrales, 109 F.3d 471, 472 (8th Cir. 1997))
(internal citations omitted) (first, third, and fourth alterations in original). The Supreme Court
proceeded to distinguish explicitly a case where “the launderer acquired the funds in one district
and transported them into another”:
Cabrales is charged in the money-laundering counts with criminal activity “after
the fact” of an offense begun and completed by others. . . . Money laundering, the
[Eighth Circuit] acknowledged, arguably might rank as a “continuing offense,”
triable in more than one place, if the launderer acquired the funds in one district
No. 15-2238 United States v. Myers Page 14
and transported them into another. But that is tellingly not this case. In the
counts at issue, the Government indicted Cabrales “for transactions which began,
continued, and were completed only in Florida.” Under these circumstances,
venue in Missouri is improper.
Cabrales, 524 U.S. at 8 (quoting Cabrales, 109 F.3d at 472–73) (emphasis added) (internal
citations omitted). The Supreme Court thus distinguished precisely Myers’s case, except that the
opinion refers to the laundering of “funds” rather than the laundering of “proceeds,” a distinction
with no constitutionally significant difference. Cabrales is accordingly materially different from
Myers’s case.
Proper venue lay in the Western District of Michigan, also, for Myers’s money-
laundering conspiracy count, for many of the same reasons. Under the plain text of the money-
laundering statute, venue is proper for prosecutions of money-laundering conspiracy “in the
district where venue would lie for [substantive money laundering] . . . , or in any other district
where an act in furtherance of the . . . conspiracy took place.” 18 U.S.C. § 1956(i)(2). Proper
venue lay in the district under the first prong of the venue provision because, as explained above,
proper venue lay in the Western District of Michigan for Myers’s substantive money laundering.
Venue for money-laundering conspiracy was also proper in the district under the second prong
because the government alleged multiple overt acts by Myers in the district in furtherance of the
money-laundering conspiracy: Myers stole three motor homes in the Western District of
Michigan that he would later sell elsewhere, posing as their legitimate owner. That venue
provision is not unconstitutional because a conspiracy is a continuing offense that is committed
everywhere the overt acts are committed. “[The] Court has long held that venue is proper in any
district in which an overt act in furtherance of the conspiracy was committed, even where an
overt act is not a required element of the conspiracy offense.” Whitfield v. United States,
543 U.S. 209, 218 (2005) (citing cases); see also United States v. Jordan, 511 F. App’x 554, 566
(6th Cir. 2013).
There is also no reversible error in the district court’s instructions to the jury on venue for
these money-laundering counts. Myers complains that there was no “instruction telling the jury
that it had to find by a preponderance of the evidence that . . . some part of the criminal acts
charged in [the money-laundering counts] took place in the Western District of Michigan.”
No. 15-2238 United States v. Myers Page 15
But the verdict form stated that convicting on money-laundering conspiracy was finding that “in
Kent County, in the Southern Division of the Western District of Michigan, and other places, the
Defendant conspired to engage in money laundering.” The court instructed the jury with that
same language. The verdict form further stated that convicting on concealment money
laundering was finding that “in Kent County, in the Southern Division of the Western District of
Michigan, and other places, the defendant engaged in [specified financial transactions] from the
Woodforest National Bank.” The court instructed the jury with that same language. Those
instructions adequately informed the jury that convicting Myers of the money-laundering counts
required finding that some part of the criminal conduct took place in the Western District of
Michigan. In both sets of instructions, the Western District of Michigan is specified as one of
the places where Myers must be found to have committed the criminal conduct—either
conspiring to engage in money laundering or engaging in certain financial transactions.
A conviction is reversed for errors in jury instructions only where the instructions as a whole
were “confusing, misleading or prejudicial.” United States v. Russell, 595 F.3d 633, 642 (6th
Cir. 2010) (quoting United States v. Kuehne, 547 F.3d 667, 669 (6th Cir. 2008)) (internal
quotation marks omitted). Here, the district court’s instructions to the jury on venue were not
“confusing, misleading or prejudicial.”
III.
The charges against Myers were not multiplicitous. “‘Multiplicity’ is charging a single
offense in more than one count in an indictment,” United States v. Swafford, 512 F.3d 833, 844
(6th Cir. 2008) (quoting United States v. Lemons, 941 F.2d 309, 317 (5th Cir. 1991)) (internal
quotation marks omitted), and it therefore “may result in a defendant being punished twice for
the same crime,” Swafford, 512 F.3d at 844 (citing United States v. Brandon, 17 F.3d 409 (1st
Cir. 1994)). To determine whether charges are multiplicitous, we generally analyze, under
Blockburger v. United States, 284 U.S. 299 (1932), whether each charge requires proof of a fact
that the other charge does not; if each charge does, then the charges accuse different crimes and
are therefore not multiplicitous. See id.
Myers’s interstate vehicular theft counts—one count of conspiring to transport stolen
motor homes across state lines in violation of 18 U.S.C. § 371, on the one hand, and three
No. 15-2238 United States v. Myers Page 16
substantive counts of transporting stolen motor homes across state lines in violation of 18 U.S.C.
§ 2312, on the other hand—were not multiplicitous. “It has been long and consistently
recognized by the Court that the commission of the substantive offense and a conspiracy to
commit it are separate and distinct offenses.” Pinkerton v. United States, 328 U.S. 640, 643
(1944). Conspiracy requires an agreement, while the substantive crime does not; the substantive
crime requires completion, while conspiracy does not. See id. at 643–44. While Myers responds
that the indictment and the verdict forms stated, for his criminal conduct for the substantive
counts, that Myers both “transported” and “conspired to transport” the stolen vehicles, his
response points out a distinction that, in this case, makes no difference. The charged crime for
the substantive interstate vehicular theft was a violation of 18 U.S.C. § 2312, which does not
include a conspiratorial agreement as an element of the crime, and the indictment for those
crimes relied on § 371 only to allow Pinkerton liability, not because a conspiratorial agreement
was an element of the substantive crime. Any error in the verdict forms was invited by Myers
himself, who requested the addition of the language that he now challenges. Challenges to such
invited errors are forfeited. See Harris v. Roadway Express., Inc., 923 F.2d 59, 60–61 (6th Cir.
1991).
Nor were Myers’s two conspiracy counts—the general conspiracy count under 18 U.S.C.
§ 371 discussed above and the money-laundering conspiracy count under 18 U.S.C. 1956(h)—
multiplicitous. As the Court has explained, Congress intended to create a new offense by
criminalizing money-laundering conspiracy. Rejecting the argument that § 1956(h) merely
increased the penalty for a specific subset of conspiracies under § 371, and rejecting the
conclusion that “the Government must continue to prosecute money laundering conspiracies
under § 371,” the Court held that “[i]t is undisputed that Congress intended § 1956(h) to increase
the penalties for money laundering conspiracies,” and that “Congress did so precisely by
establishing a new offense.” Whitfield v. United States, 543 U.S. 209, 215–16 (2005). Because
§ 371 and §1956(h) punish separate offenses, Myers’s two conspiracy counts are not
multiplicitous.
Blockburger analysis supports that conclusion. The general conspiracy statute prohibits a
“conspir[acy] . . . to commit any offense against the United States” when coupled with an overt
No. 15-2238 United States v. Myers Page 17
act, “an act to effect the object of the conspiracy,” 18 U.S.C. § 371. The superseding indictment
charged Myers of violating 18 U.S.C. § 371 by conspiring “to transport stolen motor vehicles in
interstate commerce, contrary to 18 U.S.C. § 2312,” and taking multiple overt acts in furtherance
of that conspiracy. Money-laundering conspiracy is both narrower and broader than general
conspiracy. More narrowly, money-laundering conspiracy prohibits a particular type of criminal
agreement: “conspir[acy] to commit any offense defined in” the money-laundering statute.
18 U.S.C. 1956(h). More broadly, money-laundering conspiracy does not require proof of overt
acts: “Because the text of § 1956(h) does not expressly make the commission of an overt act an
element of the conspiracy offense, the Government need not prove an overt act to obtain a
conviction.” Whitfield v. United States, 543 U.S. 209, 214 (2005). The superseding indictment
charged Myers of violating 18 U.S.C. 1956(h) by “engag[ing] in interstate financial transactions
with an intent to conceal and disguise the nature, the location, the source, the ownership, and the
control of proceeds of a specified unlawful activity, in violation of 18 U.S.C.
§ 1956(a)(1)(B)(i).” The superseding indictment also charged Myers with various overt acts, but
it did not need to, as held by the Court in Whitfield. Each of the two conspiracy counts therefore
required proof of a fact that the other did not. The general conspiracy required proof of an overt
act, while the money-laundering conspiracy did not; the money-laundering conspiracy required
proof of the agreement in particular to commit money laundering, in this case concealment
money laundering, while general conspiracy did not. The two conspiracy counts are therefore
not multiplicitous.
IV.
The district court did not err in denying Myers’s repeated motions to represent himself.
While criminal defendants have a constitutional right to self-representation, Faretta v.
California, 422 U.S. 806, 818 (1975), “the government’s interest in ensuring the integrity and
efficiency of the trial at times outweighs the defendant’s interest in acting as his own lawyer,”
Martinez v. Court of Appeal, 528 U.S. 152, 162 (2000). To move successfully to represent
himself, a criminal defendant must “‘voluntarily and intelligently’ elect to conduct his own
defense,” and therefore the defendant “must first be ‘made aware of the dangers and
disadvantages of self-representation.’” Id. at 161–62 (quoting Faretta, 422 U.S. at 835) (internal
No. 15-2238 United States v. Myers Page 18
quotation marks omitted). Here, Myers showed through his words and his actions that he did not
sufficiently understand the dangers and disadvantages of self-representation. At the hearing on
his self-representation motion, when the district court posed questions to him to probe his
understanding of the risks of self-representation, Myers repeatedly interrupted the court, shook
his head, and even tried to walk away from the courtroom, despite being an imprisoned
defendant. The Government also produced Myers’s recorded jail calls in which Myers boasted
his plans to drag out trial and to cost the government as much as possible for the prosecution.
Indeed, Myers partially executed those plans by filing multiple interlocutory appeals to this
court, even though this court clearly lacked jurisdiction to consider those appeals from nonfinal
orders. While Myers may have genuinely desired to represent himself, he amply revealed that he
did not elect “intelligently” to represent himself with a sufficient understanding “of the dangers
and disadvantages of self-representation,” both through his inability to participate in orderly trial
proceedings, and through his stated plans to use trial as an opportunity to cost the government as
much as possible for the prosecution. The district court therefore properly denied Myers’s
motion to represent himself.
V.
Myers makes multiple challenges to his sentence of 360 months’ imprisonment, which
was the very bottom of his Guidelines range of 360 to 1,140 months’ imprisonment. None
succeeds.
Myers first argues that the district court miscalculated the amount of loss by including in
its calculation not just the intended loss to the original owners of the stolen motor homes, but
also the intended loss to the subsequent purchasers. When Myers stole motor homes, he
certainly intended a loss of the value of the stolen motor homes, whether measured by the fair
market value of the motor homes, or by the amount that the insurance companies paid to the
owners to cover their loss. In this case, however, Myers used the stolen motor homes for his
own enjoyment and then sold them to dealers of motor homes, fronting clone titles to pretend to
be the motor homes’ legitimate owner; and in most cases, as Myers must have known, secondary
victims bought those stolen motor homes before Myers’s thefts were revealed. When the thefts
were revealed, the stolen motor homes were taken away from the secondary victims and returned
No. 15-2238 United States v. Myers Page 19
to the original owners or their insurance companies. Myers therefore can be said to have
intended those losses to the secondary victims. While Myers responds that those secondary
victims had a claim against the dealers who sold the motor homes to them, the claim may not be
filed or filed successfully, and at least in one case had not been filed by the time of Myers’s
sentencing. These are the sorts of complications that often accompany loss calculations.
Because of such complications, “[t]he court need only make a reasonable estimate of the loss.”
USSG § 2B1.1 comment. 3. Furthermore, “[t]he sentencing judge is in a unique position to
assess the evidence and estimate the loss based upon that evidence,” and therefore on review,
“the court’s loss determination is entitled to appropriate deference.” Id. We overturn loss
determinations only when we find “clear error,” leaving us with “the definite and firm conviction
that a mistake has been committed.” United States v. Sosebee, 419 F.3d 451, 455 (6th Cir. 2005)
(quoting United States v. Ware, 282 F.3d 902, 907 (6th Cir. 2002)) (internal quotation marks
omitted). We are left with no such conviction here.
Myers also challenges as double-counting the district court’s applications of two
enhancements: Sophisticated Laundering Enhancement, USSG § 2S1.1(b)(3), and “Specific
Offense Characteristic,” USSG § 2B1.1(b)(10). Myers rests that challenge on a comment to the
laundering enhancement, USSG § 2S1.1(b)(3), comment. 5, which instructs not to apply that
enhancement if the conduct that triggers the § 2S1.1(b)(3) enhancement is the same conduct that
triggered the § 2B1.1(b)(10) enhancement. Here, different conduct triggered the two
enhancements. Myers’s base offense level for “conspiracy involving stolen property” is properly
enhanced under § 2B1.1(b)(10) for the complex scheme he used in stealing and transporting the
vehicles, in part by obtaining vehicles’ identification numbers and master keys. Myers also went
to great lengths to clone titles to those stolen motor homes before selling them by posing as their
legitimate owners—and that separate conduct separately qualifies Myers for the Sophisticated
Laundering Enhancement under USSG § 2S1.1(b)(3). The district court therefore properly
applied both enhancements.
Myers further challenges the application of an upward sentencing adjustment for his role
as a leader. That enhancement applies if the defendant was an organizer or leader of a criminal
activity that involved either five or more participants or was “otherwise extensive.” USSG
No. 15-2238 United States v. Myers Page 20
§ 3B1.1(a). To determine whether a scheme is “extensive,” we consider “whether the
combination of knowing and countable non-participants is the functional equivalent of an
activity carried out by five criminally responsible participants.” United States v. Anthony,
280 F.3d 694, 699–701 (6th Cir. 2002). But we do so from a “deferential” stance, mindful that
the sentencing judge “is most familiar with the facts and is best situated to determine” how
extensive the criminal scheme was. See United States v. Washington, 715 F.3d 975, 983 (6th
Cir. 2013). Myers’s scheme was plainly “extensive.” Although he used only two to four
knowing participants to effectuate the scheme, the scheme’s complexity makes it entirely
reasonable to consider it the functional equivalent of a crime with a few more knowing actors.
The district court did not err in applying the upward adjustment.
Finally, Myers claims that the district court erred by refusing to consider a then-proposed
amendment to the Sentencing Guidelines that would have reduced his offense level by two
levels. We have explained that our precedents “allow consideration” of a pending Guidelines
amendment, “but do not establish an obligation for the district court to apply those amendments.”
United States v. Jimenez, 517 F. App’x 398, 400 (6th Cir. 2013). Other circuits have held the
same. See United States v. Hayden, 775 F.3d 847, 850 (7th Cir. 2014); United States v.
Allebach, 526 F.3d 385, 389 (8th Cir. 2008). What is important is that the “sentence was based
on a sentencing range that was properly calculated under the guidelines in effect at the time of []
sentencing.” Jimenez, 517 F. App’x at 400. Myers’s sentence meets that test. United States v.
Taylor, 648 F.3d 417 (6th Cir. 2011), is easily distinguished. Taylor concerned the district
court’s refusal to consider a Guidelines amendment that took effect after the initial sentence was
imposed, but before the case was remanded for resentencing. See Taylor, 648 F.3d at 421.
Our holding there that the amendment needed to be considered is entirely consistent with the rule
that the sentencing judge should base the sentence on the range calculated under the Guidelines
as they stand at the time of sentencing.
VI.
We affirm Myers’s conviction and sentence.
No. 15-2238 United States v. Myers Page 21
_____________________________________________________
CONCURRING IN PART AND DISSENTING IN PART
_____________________________________________________
KETHLEDGE, Circuit Judge, concurring in part and dissenting in part.
“The Constitution twice safeguards the defendant’s venue right[.]” United States v. Cabrales,
524 U.S. 1, 6 (1998). Article III of the Constitution provides that “[t]he Trial of all Crimes
. . . shall be held in the State where the said Crimes shall have been committed[.]” Art. III, § 2,
cl. 3. And the Sixth Amendment guarantees that, “[i]n all criminal prosecutions, the accused
shall enjoy the right” to a trial “by an impartial jury of the State and district wherein the crime
shall have been committed[.]” Both of those commands were violated as to the concealment
money-laundering charges here.
The district in which a crime is committed “must be determined from the nature of the
crime alleged and the location of the act or acts constituting it.” Cabrales, 524 U.S. at 6-7.
Specifically, “in performing this inquiry, a court must initially identify the conduct constituting
the offense (the nature of the crime) and then discern the location of the commission of the
criminal acts.” United States v. Rodriguez-Moreno, 526 U.S. 275, 279 (1999) (emphasis added).
In determining where a crime was committed for purposes of constitutional venue, therefore, the
court looks to the place of the “conduct elements” rather than to the place of any “circumstance
element[s]” of the offense. Id. at 280 & n.4.
There is only one conduct element for the offense at issue here. Concealment money-
laundering is defined as follows: “Whoever, knowing that the property involved in a financial
transaction represents the proceeds of some form of unlawful activity, conducts or attempts to
conduct such a financial transaction . . . knowing that the transaction is designed in whole or in
part” to conceal the illicit nature or source of those proceeds, is guilty of concealment money-
laundering. 18 U.S.C. § 1956(a)(1)(B)(i) (emphasis added). Thus, as the Supreme Court said in
Cabrales, the offense of concealment money-laundering “interdict[s] only the financial
transactions . . . not the anterior criminal conduct that yielded the funds allegedly laundered.”
524 U.S. at 7.
No. 15-2238 United States v. Myers Page 22
Here, the financial transactions that constituted the charged money-laundering offenses
took place at banks in Pennsylvania and Mississippi, respectively. Hence none of those
transactions—which is to say, none of the “essential conduct elements[,]” Rodriguez-Moreno,
526 U.S. at 280—took place in the Western District of Michigan. Instead that district was the
site of the motor-home thefts—which is to say, “the anterior criminal conduct that yielded the
funds allegedly laundered.” Cabrales, 524 U.S. at 7. Thus, per the Supreme Court’s decisions in
Cabrales and Rodriguez-Moreno, Myers committed the charged money-laundering offenses in
Pennsylvania and Mississippi, rather than the Western District of Michigan. His trial on those
charges in Michigan, therefore, violated Article III and the Sixth Amendment of the Constitution.
Hence we should reverse those convictions.
In holding to the contrary, the Majority loses sight of the distinction between conduct
elements and circumstance ones. The Majority reasons that the charged money-laundering “was
committed in part in the Western District of Michigan” because Myers “gained possession of the
‘proceeds of specified unlawful activity’ [i.e., the motor homes]” there. Maj. Op. at 10. That is
factually true but legally irrelevant as to venue—because possession of the unlawful proceeds is
merely “a circumstance element” of concealment money-laundering. Rodriguez-Moreno,
526 U.S. at 280 n.4. Laundering the unlawful proceeds, not possessing them, is what constitutes
the offense of concealment money-laundering. That is why the Supreme Court has said this
offense “interdict[s] only the financial transactions . . . not the anterior criminal conduct that
yielded [i.e., allowed the defendant to possess] the funds allegedly laundered.” Cabrales,
524 U.S. at 7 (emphasis added).
Nor does Rodriguez-Moreno support the result in this case. The defendant there was
charged with “using or carrying a firearm ‘during and in relation to any crime of violence’”—in
that case, a kidnaping. 526 U.S. at 280 (quoting 18 U.S.C. § 924(c)(1)). The kidnaping had
“begun in Texas and continued in New York, New Jersey, and Maryland.” Id. at 281. Although
the defendant was tried in New Jersey, he argued that venue was proper only in Maryland, which
was the only state where he had used the gun. The Supreme Court disagreed, holding that the
requisite “crime of violence” was a conduct element of the offense even though that element was
“embedded in a prepositional phrase[.]” Id. at 280. But that does not mean that every element
No. 15-2238 United States v. Myers Page 23
“not expressed in verbs,” Maj. Op. at 10, is a conduct element. And here the Supreme Court has
specifically told us that “the anterior criminal conduct that yielded the funds allegedly
laundered” is not a conduct element of concealment money-laundering. Cabrales, 524 U.S. at 7.
Nor does Cabrales itself support the result here. True, the Court did observe that
“[m]oney laundering . . . arguably might rank as a continuing offense triable in more than one
place, if the launderer acquired the funds in one district and transported them into another.” Id.
at 8. The idea that the mere transportation of unlawful proceeds out of a particular district is
enough to support venue in that district for concealment money-laundering, however, is
irreconcilable with the Court’s statement that the conduct giving rise to that offense is “only the
financial transactions[.]” Id. at 7. What the Court likely had in mind, rather, was the closely
related offense of transportation money-laundering, for which “transport[ing]” the funds is
indisputably a conduct element, see 18 U.S.C. § 1956(a)(2)(B)(i), and which is therefore indeed
a continuing offense “if the launderer acquired the funds in one district and transported them into
another.” Cabrales, 524 U.S. at 8; see also Cuellar v. United States, 553 U.S. 550, 557-60
(2008). But here Myers was charged with concealment money-laundering, for which the
conduct element is “conduct[ing] . . . a financial transaction[,]” 18 U.S.C. § 1956(a)(1)(B)(i),
rather than “transport[ing]” the funds, id. § 1956(a)(2)(B)(i).
In Cabrales, the Court also observed that the “the counts at issue do not charge Cabrales
with conspiracy.” 524 U.S. at 7. Here, of course, Myers was charged with conspiracy. But
conspiracy to commit money-laundering is a different offense than concealment money-
laundering. See 18 U.S.C. § 1956(h). And an agreement to launder is a conduct element of
conspiring to money-launder, whereas for concealment money-laundering an agreement is not a
conduct element. See Cabrales, 524 U.S. at 7; Ocasio v. United States, 136 S. Ct. 1423, 1429
(2016). Here, I agree that venue was proper in the Western District of Michigan for the
conspiracy charge, because the conspiracy (i.e., the relevant agreement) was obviously in place
while Myers was in that district. But that agreement cannot support venue in that district on the
concealment money-laundering charge, because again the agreement was not a conduct element
of that offense.
No. 15-2238 United States v. Myers Page 24
The Constitution requires us to determine venue crime-by-crime, rather than in gross.
I therefore respectfully dissent from the Majority’s decision to affirm Myers’s convictions on the
concealment money-laundering charges (counts 6 and 7). And I otherwise concur in all but Part
II of the Majority’s thoughtful opinion.