United States v. TaShun White ( 2017 )

NOT RECOMMENDED FOR PUBLICATION
File Name: 17a0680n.06
No. 17-1489
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FILED
UNITED STATES OF AMERICA, ) Dec 08, 2017
) DEBORAH S. HUNT, Clerk
Plaintiff-Appellee, )
)
ON APPEAL FROM THE
v. )
UNITED STATES DISTRICT
)
COURT FOR THE EASTERN
TASHUN YVONNE WHITE, )
DISTRICT OF MICHIGAN
)
Defendant-Appellant. )
)
BEFORE: BATCHELDER, GRIFFIN, and WHITE, Circuit Judges.
GRIFFIN, Circuit Judge.
Defendant TaShun White appeals her conviction for conspiracy to launder money. She
challenges the sufficiency of the evidence in support of her conviction, and contends that certain
evidence presented during trial constituted a prejudicial variance from, or constructive
amendment to, the indictment. White also maintains that the district court erred by instructing
the jury on legally inadequate theories of guilt. We affirm.
I.
TaShun White (“White”) played a minor role in her brother Derrick White’s (“Derrick”)
major money laundering and drug distribution conspiracy. Derrick made millions trafficking
marijuana over many years. Although he was never gainfully employed, he dressed noticeably
well, maintained residences in several cities, and frequently purchased luxury vehicles, often by
No. 17-1489
United States v. White
paying large sums of cash and trading in another high-value car. Derrick rented property and
bought, titled, and insured most of his cars in the names of his family members and other
individuals, including White.
Relevant here, a federal grand jury indicted White, Derrick, and five other defendants on
one count of conspiracy to launder money by various means and with various intents, in violation
of 18 U.S.C. § 1956(h). The indictment raised allegations of concealment money laundering and
unlawful monetary transactions against White specifically. White’s role over several years was
allegedly that of a nominee purchaser or owner who helped “conceal[ ] the true source, nature
and ownership of the funds involved” in acquiring “luxury vehicles” with high resale value. See
18 U.S.C. § 1956(a)(1)(B). “[I]n doing so,” White allegedly “engage[d] in monetary transactions
involving the proceeds of a specified unlawful activity in an amount greater than $10,000[.]”
See 18 U.S.C. § 1957.
The government presented detailed evidence of this scheme at White’s trial. She moved
for a judgment of acquittal at the close of the government’s case, but did not renew it at the close
of all proofs. The jury was instructed on conspiracy to commit concealment money laundering
in violation of 18 U.S.C. § 1956(a)(1)(B) and conspiracy to launder money by engaging in an
unlawful monetary transaction in violation of 18 U.S.C. § 1957. It returned a general verdict
convicting White of conspiring to launder money. She timely appeals.
II.
White contends there was insufficient evidence to prove that she knew money laundering
was being committed. Specifically, she challenges the sufficiency of the evidence that (1) her
and her brother’s actions were intended to conceal “the true source, nature and ownership of” the
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money as opposed to merely spending it, and that (2) she had any knowledge of its unlawful
source in the first instance.
To secure a conviction for a § 1956(h) conspiracy, the government must have proven
beyond a reasonable doubt “(1) that two or more persons conspired to commit the crime of
money laundering, and (2) that the defendant knowingly and voluntarily joined the conspiracy.”
United States v. Prince, 618 F.3d 551, 553–54 (6th Cir. 2010). To establish White’s guilt under
a concealment theory, the government must have shown that she conspired to “conduct[ ] a
financial transaction with criminal proceeds, with knowledge that the money was the proceeds of
unlawful activity, and with knowledge that the transaction was designed, in whole or in part, to
conceal or disguise the nature, location, source, ownership, or control of the money.” United
States v. Reed, 264 F.3d 640, 650–51 (6th Cir. 2001).
On appeal, White “faces a high bar” to relief. United States v. Persaud, 866 F.3d 371,
379–80 (6th Cir. 2017). We may sustain a conviction based on circumstantial evidence alone,
and the evidence need not disprove every hypothesis except that of guilt. United States v. Lindo,
18 F.3d 353, 357 (6th Cir. 1994). Moreover, White did not renew her motion for judgment of
acquittal on insufficiency grounds at the close of all evidence. Under these circumstances, we
view the evidence “in the light most favorable to the government,” United States v. Moss, 9 F.3d
543, 551 (6th Cir. 1993), while also recognizing that White has forfeited her “right to challenge
the sufficiency of the evidence unless the record reveals a manifest miscarriage of justice.”
United States v. Kennedy, 714 F.3d 951, 957 (6th Cir. 2013) (internal quotation marks omitted).
We will reverse only if “the record is devoid of evidence pointing to guilt.” United States v.
Frazier, 595 F.3d 304, 306 (6th Cir. 2010).
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We find that the record in this case is not so devoid. As in most conspiracies, the trial
evidence does not establish a formal agreement between White and her brother. But “a tacit or
material understanding” is enough, and White’s “knowledge of and participation in a conspiracy
may be inferred from h[er] conduct and established by circumstantial evidence.” See United
States v. Martinez, 430 F.3d 317, 330 (6th Cir. 2005); cf. United States v. Slater, 258 F. App’x
810, 814 (6th Cir. 2007) (proof of knowledge and participation in context of a § 1956
conspiracy). Moreover, under § 1956(a)(1), the government need not prove that White knew the
proceeds involved were from the drug distribution conspiracy specifically, only that they were
derived from “some form of unlawful activity.” 18 U.S.C. § 1956(a)(1); see United States v.
Hill, 167 F.3d 1055, 1066–67 (6th Cir. 1999). White cannot escape liability if she purposely
avoided knowing the facts because we have construed the knowledge requirements of § 1956 “to
include instances of willful blindness.” United States v. Bohn, 281 F. App’x 430, 441 (6th Cir.
2008) (citing Hill, 167 F.3d at 1067); cf. United States v. Holloway, 731 F.2d 378, 380–81 (6th
Cir. 1984) (per curiam) (criminal defendant cannot escape conviction by “deliberately closing his
eyes to the obvious risk that he is engaging in unlawful conduct”).
Viewed in the light most favorable to the government, the trial evidence supports the
reasonable inference that White knowingly and willingly participated in concealing “the nature,
location, source, ownership, or control of” the proceeds, and knew the proceeds were from some
unlawful activity. At trial, White admitted her repeated involvement in Derrick’s vehicle
transactions. She provided her driver’s license to a car dealership and an auto trading company
when Derrick wanted to buy and sell cars under her name. One car dealer testified that he spoke
with White on the phone about the details of purchasing a 2008 Dodge Challenger. But it was
Derrick who was at the dealership and who paid cash for the car. By purchasing that car in
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White’s name, Derrick evaded having a large cash purchase reported to the Internal Revenue
Service in his name. White titled Derrick’s Challenger in her name.
When Derrick wanted to sell his 2010 Porsche Panamera Turbo, White titled it in her
name before the sale. After the purchaser gave White a cashier’s check for $82,500, she
deposited it into one of her accounts before issuing Derrick a cashier’s check for the sale amount.
White also insured both Derrick’s Challenger and the Porsche in her name. All told, White
insured four of Derrick’s vehicles, adding and removing them from her policy as he bought, sold,
or traded them, and admitted repeatedly misrepresenting to her insurance company that she was
the sole driver and that the vehicles were garaged at her residence.
She similarly misrepresented that she was living in a luxury Detroit apartment Derrick in
fact occupied and paid for. White rented the apartment for Derrick for over $2,000 a month, but
did not list him as its occupant on the application forms. She testified that, “[f]or a full year,”
Derrick left cash or a money order at their mother’s house for White to collect, deposit, and then
use to pay the monthly rent via check from her bank account, masking the source and ownership
of the funds he gave her for that purpose. And within approximately a month of White renting
the apartment and insuring one of Derrick’s vehicles, he made a $9,000 down payment in cash
on a new Mercedes Benz for her. A reasonable juror could conclude that these convoluted
transactions were designed to help Derrick disguise his ownership and control of the proceeds
and their source, and infer that White, having involved herself in them time and again over
several years, at the very least tacitly understood this purpose, willingly participated in
advancing it, and was rewarded for her efforts.
There was no testimony at trial that Derrick was ever gainfully employed, but the
government produced voluminous evidence of the broad scope of his drug distribution activities
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and earnings. The car salesmen who dealt with Derrick both testified they thought he was a
“drug dealer,” but White maintained that she never suspected her brother of any illegal activities.
White testified that she “grew up” with Derrick, who “always dressed nice,” but she saw him
“maybe twice a year” and thought he funded his extravagant lifestyle from settlement money and
property investments.1 White could not explain why Derrick could not pay his own apartment
rent directly, or why he needed her to conduct so many of his other financial transactions in her
name if his money was from legitimate sources, and admitted she never “look[ed] into the
logistics,” “inquire[d],” or “ask[ed] a ton of questions” when her brother “ask[ed] [her] to do
something.”
The jury was, of course, free to believe White, but it was also free to weigh the
circumstantial evidence against her vague explanation and infer that White knew, or was at the
very least deliberately ignorant of the fact that Derrick’s money was from an unlawful source.
See Global-Tech Appliances, Inc. v. SEB S.A., 563 U.S. 754, 769 (2011) (willful blindness
requires subjective belief of a high probability that a fact exists and deliberate action to avoid
learning of that fact); cf. United States v. Myint, 455 F. App’x 596, 604 (6th Cir. 2012)
(collecting cases approving use of deliberate ignorance jury instruction in conspiracy cases). The
jury unanimously agreed that White knowingly and willingly conspired to commit money
laundering after having the opportunity to hear her explain her actions and judge her credibility.
1
White testified that their mother said Derrick was “set for the rest of his life” because of
a settlement he received after ingesting lead paint as a child, although White did not know the
amount or its terms, and that he had invested in nightclubs, although White “never inquired”
about them either. Trial evidence revealed that Derrick was, in fact, receiving approximately
$2,000 a month from a settlement. But the possibility that Derrick comingled legitimate and
illegitimate funds in his car and apartment dealings is of no moment because the government
does not have to trace the origin of all the proceeds involved in the financial transactions at issue
to specific unlawful activity. United States v. Jamieson, 427 F.3d 394, 403–04 (6th Cir. 2005).
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“We are loath to override their conclusion.” United States v. Davis, 490 F.3d 541, 550 (6th Cir.
2007).
As for White’s money spending argument, we agree that “the government must produce
more evidence than the simple fact of a retail purchase using illegally obtained money in order to
prove” an intent to conceal. United States v. Marshall, 248 F.3d 525, 538 (6th Cir. 2001). But it
did so here. White notes that Derrick did not hide his identity from the car salesmen, and she
never tried to hide who she was on any paperwork, but these facts “do[ ] not negate the effect of
other evidence pointing to an intent to conceal.” See id. at 539. Indeed, the evidence supports
the inference that concealment occurred here in another sense. As explained above, White was
not merely spending Derrick’s money––the jury heard evidence that White went to great lengths
to help disguise Derrick’s ownership and control of the proceeds, and would have had no reason
to do so if their source had been legitimate. The extent to which these efforts were actually
successful does not speak to White’s and Derrick’s intent in undertaking them. Coupled with
White’s repeated misrepresentation of herself as purchaser, renter, and owner, the evidence of
“unusual financial moves,” “structuring the transaction[s] in a way to avoid attention,” and
“depositing illegal proceeds” into White’s legitimate bank account before issuing checks is
supportive of an intent to conceal. See id. (quoting United States v. Garcia-Emanuel, 14 F.3d
1469, 1475–76 (10th Cir. 1994)).
White argues United States v. McDougald, 990 F.2d 259 (6th Cir. 1993), controls, but her
reliance on that case is misplaced. In McDougald, we reversed a money laundering conviction
because there was insufficient evidence that the defendant knew the money an acquaintance
(who turned out to be a drug dealer) gave him to buy a car was in fact drug money. Id. at 261.
But whereas the government here presented substantial evidence from which one could
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reasonably conclude that the money at issue was proceeds of the drug trade, the government
produced no evidence in McDougald that any of the money came from unlawful activity. Id.
Moreover, the McDougald defendant had a casual and brief relationship with the drug dealer,
whom he met only twice, and he engaged in only one simple straw purchase. Id. at 260. By
contrast, White had a lifelong relationship with her brother, with whom she grew up, and made
an ongoing effort to obscure his identity as the source and owner of the proceeds across multiple
transactions, suggesting knowledge of illegal activity and of a design to conceal. Although this
case is similar to McDougald in some respects, viewing the evidence in the light most favorable
to the government, we conclude that no manifest miscarriage of justice occurred here.
III.
White also argues that there was a material difference between the allegations in the
indictment and the proof offered at trial, resulting in either a prejudicial variance or constructive
amendment. She takes issue with the government’s introduction of evidence at trial that she
rented an apartment for Derrick and helped him conceal the source of the rent payments, an overt
act not listed in the indictment. Because White failed to object to an alleged variance or
constructive amendment before the district court, we are limited to plain error review. United
States v. Smith, 749 F.3d 465, 481 (6th Cir. 2014). Under that strict standard, White must
establish obvious error that affected her substantial rights. Johnson v. United States, 520 U.S.
461, 466–67 (1997). Only then may we “exercise [our] discretion to notice a forfeited error” that
also “seriously affects the fairness, integrity or public reputation of judicial proceedings.” Id. at
467 (internal quotation marks omitted).
A variance and a constructive amendment are closely related concepts that differ only by
“matter of degree.” Smith, 749 F.3d at 481. A variance occurs when the evidence offered at trial
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materially differs from the allegations in the indictment. Id. A variance significant enough to
effectively alter the indictment’s terms and thus create “a substantial likelihood that a defendant
[was] convicted of an offense other than that charged in the indictment” becomes a constructive
amendment. Id. A constructive amendment is prejudicial per se because “it infringes upon the
Fifth Amendment’s grand jury guarantee.” United States v. Chilingirian, 280 F.3d 704, 712 (6th
Cir. 2002).
White contends that the government diverged from the indictment by introducing
evidence at trial of an overt act that it did not previously allege. Even if we accept the premise of
White’s argument, however, a variance is not reversible error unless it affected her substantial
rights. United States v. Robinson, 547 F.3d 632, 642 (6th Cir. 2008). White must therefore show
that the alleged variance surprised her at trial and thus prejudiced her ability to defend herself, or
was prejudicial to the trial’s general fairness or “the indictment’s sufficiency to bar subsequent
prosecutions.” United States v. Mize, 814 F.3d 401, 409 (6th Cir. 2016). White nowhere
explains how this alleged variance was prejudicial in any of these ways. Indeed, her trial counsel
was provided with the relevant exhibits prior to trial, had the opportunity to cross-examine at
length the financial analyst through whom the evidence was introduced, and questioned White
about this evidence on direct examination.
And in any event, we have explained that “[w]hen allegations of an overt act are not
specifically listed in an indictment, there is no variance if the theory of the case [is] not changed,
the defendant [is] not charged with a different substantive crime, and the elements of the crime
charged [are] not altered.” Smith, 749 F.3d at 483 (internal quotation marks omitted). White
does not articulate, nor can we discern, how introducing evidence of renting an apartment and
concealing its true occupant and rental money source changed the government’s theory of this
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case, altered the underlying elements of a § 1956(h) conspiracy, or effectively charged White
with a new crime.
To prove that this alleged variance rises to the level of a constructive amendment, White
must show that “both the evidence presented and the jury instructions” undermined the
indictment. Mize, 814 F.3d at 409. White does not develop any meaningful argument that the
jury instructions undermined the indictment; instead, she argues that our recent published
precedent on this issue was wrongly decided. But that is a question for the en banc court. See
United States v. Lanier, 201 F.3d 842, 846 (6th Cir. 2000) (only the en banc court or an
intervening change in the law can overturn a panel decision).
We discern no plain error; therefore, White’s arguments fail.
IV.
Finally, White contends that she is entitled to a new trial because the stipulated jury
instructions were erroneous. She argues that because the district court instructed the jury on
legally inadequate theories of guilt, and used a general verdict form, the jury could have relied on
a misstatement of the law in reaching its verdict. According to White, we must grant her a new
trial if we find that either of the instructed theories of guilt was legally inadequate, but we do not
automatically reverse in alternative-theory cases even where the jury may have relied on legally
inaccurate theory in returning a general verdict. See Hedgpeth v. Pulido, 555 U.S. 57, 60–62
(2008) (per curiam) (harmless-error analysis applies); see also Skilling v. United States, 561 U.S.
358, 414 n.46 (2010) (Hedgpeth governs cases on direct appeal). White acknowledges, however,
that her trial counsel did not object to the jury instructions and concedes that plain error review
applies.
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White failed to develop this argument, so we consider it forfeited. See United States v.
Brown, 819 F.3d 800, 829 (6th Cir. 2016) (“[I]ssues . . . unaccompanied by some effort at
developed argumentation . . . are deemed waived[.]” (internal quotation marks omitted)).
A “legally inadequate theory” is one that is, for example, “time barred, or fails to come within
the statutory definition of the crime” charged. See Griffin v. United States, 502 U.S. 46, 59
(1991). Here, White asserts without exposition, and only in her reply brief, that her “actions”
cannot legally support her conviction because they do not “constitute money laundering in the
sense prohibited by Congress.” Such a conclusory assertion is no substitute for developed
argumentation.2
The burden of persuasion as to prejudice rests with White under plain error review.
United States v. Olano, 507 U.S. 725, 734 (1993). However, she does not engage with the
language of the jury instructions in any way, and thus fails to explain how they were legally
inadequate, or even to specify which instructions were incorrect, let alone develop any argument
for prejudicial plain error.3 Because White forfeited this challenge by presenting it in such a
bare-bones fashion, we also decline to address White’s one-sentence assertion that her trial
counsel was ineffective for failing to object. See United States v. Hynes, 467 F.3d 951, 969–70
2
To the extent White relies here on her claim that the jury’s verdict is supported by
insufficient proof, we are not persuaded because we “assume that jurors are able to analyze the
evidence and discard factually inadequate theories” of guilt. United States v. Taylor, 800 F.3d
701, 710 (6th Cir. 2015) (emphasis added).
3
The district court gave, and the parties stipulated to, jury instructions based on the
corresponding Sixth Circuit Criminal Pattern Jury Instructions. We “routinely f[i]nd that
instructions are not plainly erroneous where they track the circuit’s pattern jury instructions.”
United States v. Damra, 621 F.3d 474, 500 (6th Cir. 2010) (quoting United States v. Katuramu,
174 F. App’x 272, 279 (6th Cir. 2006) (collecting cases)). White specifies no distinctions
between the pattern instructions and those the district court gave.
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(6th Cir. 2006) (this court “typically decline[s] to address claims of ineffective assistance on
direct appeal” unless the record is “sufficiently developed” and “the claim is easily resolved”).
V.
We affirm White’s conviction.
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