United States v. Cassano, Angelo ( 2004 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
Nos. 01-3857, 01-3919 & 01-4368
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
ANGELO CASSANO, NORMAN “RANDY”
WILLIAMS, and CLARENCE CROSS,
Defendants-Appellants.
____________
Appeals from the United States District Court for
the Northern District of Illinois, Eastern Division.
No. 99 CR 836—Blanche M. Manning, Judge.
____________
ARGUED JANUARY 7, 2003—DECIDED JUNE 16, 2004
____________
Before COFFEY, ROVNER, and EVANS, Circuit Judges.
COFFEY, Circuit Judge. On March 21, 2000, a federal
grand jury returned a twenty-four count superceding in-
dictment against Clarence Cross, Norman “Randy”
Williams, Angelo Cassano, and three other defendants,
stemming from an alleged conspiracy to defraud
Continental Casualty Company, a subsidiary of CNA
Financial Corp. (“CNA”). The indictment sets forth, among
other things, that from August 1995 to July 1997, the
defendants caused approximately $3.8 million in misap-
2 Nos. 01-3857, 01-3919 & 01-4368
propriated funds to be paid to three fictitious entities.
Cross, Williams, and Cassano elected to stand trial, while
their three co-defendants pled guilty. On May 10, 2001,
following a three-week trial, the jury entered guilty verdicts
against all three defendants on all counts. The defendants
appeal their convictions. We affirm.
I. BACKGROUND
From 1986 to 1997, Clarence Cross was employed in the
mail room of a large Chicago-based insurance company,
CNA Financial Corporation. In 1995, Cross was the super-
visor in charge of outgoing mail services at CNA. Cross’
responsibilities included arranging for the outsourcing of
various printing, sorting, and mailing functions, which CNA
utilized to correspond with current and prospective clients.
In conjunction with these duties, Cross was personally
authorized to issue checks to vendors in amounts up to
$1,000. Checks for amounts greater than $1,000 required
the authorization of Cross’ supervisor, Beverly Stephenson.
Evidence submitted at trial establishes that between
August 1995 and July 1997 (when Cross was discharged)
CNA issued some 400 checks representing approximately
$3.8 million to three fictitious entities: Fidelity Graphics;
Eagle Mailing; and P&N Presort. At no time did any of
these companies render any mail-related services to CNA.
Once issued, Cross, with the help of Williams, Cassano, and
his three other co-defendants, cashed the checks and
retained the proceeds.
A. Cassano’s Role in the Conspiracy
In the early 1980s, defendant Angelo Cassano became ac-
quainted with a man by the name of William White. The
two were casual friends; they played golf together ten to
fifteen times per year and occasionally shared dinner and
Nos. 01-3857, 01-3919 & 01-4368 3
drinks. William White was also acquainted with Clarence
Cross, who had enlisted White’s assistance in the cashing
of the fraudulent CNA checks.
As part of the scheme to defraud CNA, White set up a
shell corporation known as Eagle Mailing. Eagle Mailing
had no active business operations at all; the entity was only
used as a vehicle for the issuance and eventual conversion
of CNA checks into cash. In order to facilitate the scheme,
White opened a bank account and a United States Post
Office Box under the aliases William Kelly and William
Reinhardt. White also obtained under the name Bill
Thompson a pager to effectuate communications between
himself and the other conspirators.
In September of 1995, after consulting with Cross, White
began receiving checks from CNA made out to Eagle
Mailing at his Arlington Heights, Illinois P.O. Box. After
receiving the checks, White would either: endorse the
checks to cash, endorse them to his assumed identity,
William Reinhardt, or endorse them to Precision Data
(another fictitious entity White had created). Then he would
either take them to a bank or a currency exchange to have
them cashed. All of the checks were made out for amounts
less than $10,000, specifically to avoid Internal Revenue
Service currency transaction reporting requirements under
31 C.F.R. § 103.22.
This process continued, with White cashing CNA checks
once or twice per week, until February of 1996, when White
found out he would be going back to prison. White had
violated his probation on an earlier forgery and credit card
fraud charges in DuPage County, Illinois with a DUI
conviction, and he was sentenced to a three-year term in
the Illinois Department of Corrections. This is when Cross
sought Cassano’s help in continuing the fraudulent cashing
of CNA checks in his absence.
4 Nos. 01-3857, 01-3919 & 01-4368
Approximately a month before he was to begin serving his
sentence, White approached Cassano at the Bella Notte
Restaurant in Morton Grove, Illinois, of which Cassano was
the owner-operator. White testified that Cassano was not
the first, but the third person, he had approached regarding
the cashing of the checks. In their first meeting, White told
Cassano that he had a friend, William Reinhardt (also
White’s assumed identity), who was going through a messy
divorce and that, in order to conceal his assets, the friend
was writing White checks to cash for him. White also
assured Cassano that the checks were “good” (as in they
would not bounce), but the pair did not discuss whether the
arrangement would be legal. Cassano responded by telling
White that he would have to ask around and see if he knew
somebody who would help cash the checks.
At their next meeting, also at his restaurant, Cassano
agreed to help and informed White that he had found a
place to cash the checks, the Stone Park Currency
Exchange. Subsequently, White spent approximately three
months in prison, February to May of 1996. During that
time, the record shows that Cassano cashed five checks to-
taling approximately $40,000. White testified that he nei-
ther asked for, nor was he offered, the proceeds from these
checks. White also testified that although he filled out the
date and signature on the checks cashed during the period
he was in jail, someone else had filled in the amounts. Each
check cashed during this period, as well as those that
followed, were less than the $10,000 currency transaction
reporting requirements.
Following White’s release from prison, Cassano continued
to cash CNA checks at the Stone Park Currency Exchange.
Evidence presented at trial suggests White would page or
call Cassano approximately once a week to let him know
that there was a CNA check that needed to be cashed.
Cassano would then meet White in the parking lot of the
Stone Park Currency Exchange whereupon Cassano would
Nos. 01-3857, 01-3919 & 01-4368 5
go in and cash the check while White waited. The record
suggests that Cassano was not initially compensated for his
efforts. However, not long after White’s release from jail,
Cassano requested he be paid for cashing the checks. White
initially demurred to Reinhardt (who was in reality White)
but a week later began paying Cassano $100 to $500 per
check.
The owner of the Stone Park Currency Exchange, Charles
Salvatore, testified that beginning in early February of
1996, Cassano indeed brought in the first of some fifty-one
second-party checks, totaling approximately $296,000, made
out to Eagle Mailing and endorsed by William Reinhardt
(a.k.a. William White). In addition, Salvatore and his
employee, Yolanda Scott, testified that persons presenting
second-party checks (checks made out to and endorsed by
someone other than the person presenting them) were
normally required to sign the checks as well. However,
when asked to do so, Cassano had refused to sign, assuring
Scott that the checks were “good” and that he had cleared
it with (his friend) Salvatore. All of the checks were in fact
“good” in that they cleared, and Cassano was allowed to
repeat this procedure fifty-one times. Salvatore testified
that on at least two occasions he conveyed his concern over
the volume of money being paid out on Cassano’s check and
the possible motive for such transactions. On each occasion
Cassano assured Salvatore that there was nothing to worry
about and that the checks would be paid.
Salvatore and Scott also testified that Cassano was never
required to complete a Currency Transaction Report. As
mentioned above, Cassano and White took great care in
making sure that all the checks cashed at the Stone Park
Currency Exchange were in denominations less than
$10,000. However, bank records show that on two separate
occasions, October 17, 1996, and November 27, 1996, the
Stone Park Currency Exchange cashed two CNA checks in
one day that totaled more than $10,000, thereby triggering
6 Nos. 01-3857, 01-3919 & 01-4368
currency transaction reporting responsibilities under the
Treasury Regulations.1 Under the regulations, these trans-
actions required the completion of a copy of IRS Form 4789,
Currency Transaction Report, which was never filled out. At
trial, two witnesses, White and Frank Amanti (one of the
original co-defendants and a restaurant owner), testified
that the $10,000 IRS reporting threshold was common
knowledge in the restaurant business. Salvatore testified
that he didn’t think any of Cassano’s transactions required
the completion of a Currency Transaction Report.
In July of 1997, CNA Investigator Frank Erion and Agent
John Teeling from the Federal Bureau of Investigation both
paid visits to the Stone Park Currency Exchange. Following
each visit Salvatore called Cassano, who continued to
assure him that the checks were “good,” that nothing was
wrong, and that he was simply helping out his friend,
Reinhardt, who was going through a nasty divorce.
On March 16, 2000, Cassano was charged, along with the
co-defendants, in a twenty-four count superceding indict-
ment with mail fraud, in violation of 18 U.S.C. §§ 1341,
1342, conspiracy to commit money laundering, in violation
of 31 U.S.C. § 1956(h), and structuring of currency transac-
1
The Treasury Regulations state in pertinent part:
Multiple transactions—general. In the case of financial
institutions other than casinos, for purposes of this section,
multiple currency transactions shall be treated as a single
transaction [and therefore are required to be reported] if the
financial institution has knowledge that they are by or on
behalf of any person and result in either cash in or out
totaling more than $10,000 during any one business day . . . .
Deposits made at night or over a weekend or holiday shall be
treated as if received on the next business day following the
deposit.
31 C.F.R. § 103.22(c)(2).
Nos. 01-3857, 01-3919 & 01-4368 7
tions, in violation of 31 U.S.C. §§ 5324(3) and 5322(a). The
mail fraud charges were later dismissed, but Cassano pled
not guilty to the other counts and stood trial along with
Cross and Williams. Cassano was convicted on all counts
and sentenced to sixty-three months imprisonment and
ordered to pay $296,920 in restitution.
B. Williams’ Role in the Conspiracy
Sometime in the early 1980s, Norman “Randy” Williams,
became acquainted with Clarence Cross. Subsequently, they
carried on a personal and professional relationship. At the
time, Williams was working as a manager/supervisor for his
father’s printing business, Fidelity Bindery, as well as
working as a sales rep for a trucking company. In 1993,
Cross was a supervisor in the transportation department at
CNA, at the same time Williams was moonlighting as a
broker for a trucking company. Cross helped Williams
secure some trucking work with CNA, shipping goods
throughout the country. This marked the beginning of
Williams’ interaction with CNA.
In 1993, Williams’ father, Earl Williams, handed over the
day-to-day operations of Fidelity Bindery to Williams. This
included keeping the books for Fidelity Bindery. Earl
Williams testified that although he would visit the office
periodically, it was Randy who ran the business.
In 1995, CNA transferred Cross to a supervisory role in
the mail department. In conjunction with his new role,
Cross suggested a relationship between Fidelity Bindery
and CNA graphics might be mutually beneficial and de-
sirable. Cross suggested CNA was eager to demonstrate
minority participation in conjunction with their graphic arts
department.
In mid-August 1995, Cross made two visits to Fidelity
Bindery. During his first visit Cross inspected the opera-
tions and suggested that CNA might want to hire Fidelity
8 Nos. 01-3857, 01-3919 & 01-4368
Bindery to do some cutting, sorting, and mailing work for
them. However, the next day Cross informed Williams that
the contracts for the mail work had already been awarded,
but he proposed an alternative arrangement.
Cross suggested CNA was still interested in having a
minority-owned business involved in its printing and
mailing activities. Therefore, he allegedly told Williams
that CNA would pay him for filling out some invoices for
work performed by other contractors, while Williams and
Fidelity would do no work at all. In return for his meager
efforts he would be entitled to keep a full 30% of the funds
from each check, while 70% was to be returned to Cross in
cash.2 In any case, Williams was unable to produce any
invoices prepared or work actually performed on behalf of
CNA.
From August 1995 until May of 1997, Williams cashed
approximately $1,300,000 in CNA checks. According to
Williams’ testimony, he deposited the first few checks, to-
taling approximately $270,000, that he received from Cross
into Fidelity Bindery’s bank account. However, in June of
1996 he opened another bank account in the name of
Fidelity Graphics.3 Thereafter, the Fidelity Graphics ac-
count was used exclusively to cash CNA checks and funnel
the proceeds to Cross and Williams. Williams used the pro-
ceeds from the CNA checks to purchase jewelry, life in-
surance, real estate, an interest in a Chicago restaurant,
and other personal investments. Williams did disclose the
2
At which point, according to Williams, Cross claimed he would
use the cash to compensate the third-party subcontractors that
Williams was allegedly preparing the invoices for.
3
Earl Williams testified that although he had contemplated
getting into the graphics business and had printed up business
cards with the name Fidelity Graphics on them, Fidelity Graphics,
to his knowledge, never conducted any business operations.
Nos. 01-3857, 01-3919 & 01-4368 9
proceeds from the checks on his income tax returns for
fiscal years 1995, 1996, and 1997; however, the income was
offset with a number of fraudulent deductions for business
expenses that were never incurred.4
After Cross was dismissed from his position at CNA in
July of 1997, Williams stopped receiving checks. Then, on
August 7, 1997, an investigator for CNA paid Williams a
visit. Williams claimed that the work he was performing for
CNA was legitimate. He claimed to be processing mail, but
he could not show the investigator any examples of work
performed, nor was he able to produce any invoices gener-
ated. However, Williams did explain that he paid 65% of
each check, in cash, to a CNA employee.
On March 16, 2000, Williams was charged with mail
fraud, in violation of 18 U.S.C. §§ 1341, 1342, conspiracy to
launder monetary instruments, in violation of 18 U.S.C.
§ 1956(h), three counts of money laundering, in violation of
18 U.S.C. § 1957(a)(1) and (2), and three counts of tax
fraud, in violation of 26 U.S.C. § 7206(1). Williams pled not
guilty and was convicted on all counts. He was sentenced to
fifty-seven months imprisonment and ordered to pay $1.312
million in restitution.
C. Cross’ Role in the Conspiracy
As illustrated above, Cross was the mastermind and co-
ordinator of the conspiracy to defraud CNA. Over a three-
year period Cross caused CNA to issue more than 400
checks made payable to three fictitious entities: Fidelity
Graphics, P&N Presort and Eagle Mailing. Cross enlisted
the help of White and Cassano to effectuate the cashing of
4
According to Williams’ accountant, Williams lied about the
nature of the CNA transactions as well as business expenses he
claimed were incurred in producing the income.
10 Nos. 01-3857, 01-3919 & 01-4368
checks through Eagle Mailing and, with Williams’ help,
cashed checks through Fidelity Graphics. In addition, Cross
directed the creation of a third fictitious entity, P&N
Presort, for the sole purpose of cashing CNA checks.
In August 1996, Cross directed Julio Munoz5 to file docu-
ments with the Illinois Secretary of State creating P&N
Presort. Also at Cross’ direction, Munoz opened a post office
box and a bank account in the name of the newly created
entity. This allowed Cross to arrange the mailing of CNA
checks directly to the post office box. Once the checks
arrived, Munoz would pick them up and deposit them in
P&N Presort’s bank account.
In addition to Munoz’s assistance, Cross enlisted the help
of local restaurant owner Frank Amanti6 to convert checks
drawn on P&N Presort’s account into cash.
Munoz testified that he provided Cross with a number of
blank P&N Presort checks. Cross furnished Amanti with
endorsed checks made payable to one of six fictitious en-
tities. The checks were all made out for less than $10,000;
again this was done to avoid having to complete a Currency
Transaction Report.7 Amanti would cash the checks at a
currency exchange keeping approximately $100 per check
for himself, giving Munoz approximately $200 per check
and providing Cross with the remainder. From August 1996
to July 1997 CNA made payments to P&N Presort totaling
5
Munoz was originally named in the grand jury indictment, but
pled guilty and testified at trial pursuant to a cooperation agree-
ment with the government.
6
Amanti was also an original defendant in this litigation and
testified pursuant to a grant of immunity after pleading guilty to
mail fraud and structuring financial transactions.
7
Amanti testified that currency transaction reporting require-
ments are “common restaurant knowledge.” R. 1313.
Nos. 01-3857, 01-3919 & 01-4368 11
approximately $840,000. Munoz and Amanti converted two
checks per week into cash until July of 1997, when CNA
fired Cross.
Cross was indicted on three counts of mail fraud, in vio-
lation of 18 U.S.C. §§ 1341, 1342, two counts of conspiracy
to launder money instruments, in violation of 18 U.S.C.
§ 1956(h), six counts of money laundering, in violation of 18
U.S.C. § 1956(a)(1) and (2), and three counts of tax fraud, in
violation of 26 U.S.C. § 7203. Cross pled not guilty and was
convicted on all counts. Cross was sentenced to a total of
135 months imprisonment and ordered to pay $3.8 million
in restitution.
II. ANALYSIS
Cassano, Williams and Cross all raise issues on appeal.
Cassano claims: (1) the district court erred in denying his
motion for acquittal on conspiracy to commit money laun-
dering and structuring of currency transaction charges;
(2) the district court erred in failing to declare a mistrial
based on improper statements made during closing argu-
ments; (3) the district court improperly allowed hearsay
evidence during the testimony of a co-defendant; and (4)
that two of the counts in the indictment on structuring of
currency transaction charges were multiplicitous. Similarly,
Williams claims: (1) the district court erred in not granting
his motion for judgment of acquittal; and (2) the district
court should have granted his motion for a new trial
because he was irremediably prejudiced by the court’s
denial of his motion for severance. Finally, Cross also
claims the district court committed a reversible error when
it denied his motion to sever. We consider each of these
issues in turn.
12 Nos. 01-3857, 01-3919 & 01-4368
A. Cassano’s Motion for Acquittal
On appeal, Cassano first claims that the district court
should have overturned the jury’s determination of guilt
and granted his motion for judgment of acquittal, because
the government had failed to carry its burden on the con-
spiracy to commit money laundering and structuring of
financial transactions charges.
This court reviews a district court’s denial of a motion for
acquittal de novo. See United States v. O’Hara, 301 F.3d
563, 569 (7th Cir. 2002). The evidence in the record is
reviewed and all positive inferences therein are viewed in
the light most favorable to the government. See id.; United
States v. Jones, 222 F.3d 329, 351-52 (7th Cir. 2000). The
decision of the district court will be disturbed “only when
the record is devoid of any evidence, regardless of how it is
weighed, from which a jury could find guilt beyond a rea-
sonable doubt.” United States v. Thompson, 106 F.3d 794,
799 (7th Cir. 2000) (citing United States v. Gutierrez, 978
F.2d 1463, 1468-69 (7th Cir. 1992)). Circumstantial evi-
dence alone, whether in conjunction with other inculpa-
tory evidence or not, is sufficient to support a conviction.
See United States v. Gracia, 272 F.3d 866, 874 (7th Cir.
2001). A defendant challenging the sufficiency of the evi-
dence supporting his conviction “faces a very high hurdle
because . . . we neither reweigh the evidence nor do we
substitute our judgment of the facts for that of the fact-
finder.” United States v. Crotteau, 218 F.3d 826, 834 (7th
Cir. 2000). We hold that Cassano has failed to meet this
rigorous burden and discuss each of his claims in turn.
1. Conspiracy to Commit Money Laundering
Cassano claims the government failed to carry its burden
on the conspiracy to commit money laundering charges. We
disagree.
Nos. 01-3857, 01-3919 & 01-4368 13
Specifically, Cassano argues the government did not
prove that he had the requisite mens rea under 18 U.S.C.
§ 1956(a)(1), which states in pertinent part:
Whoever, knowing that the property involved in a fi-
nancial transaction represents the proceeds of some
form of unlawful activity, conducts or attempts to con-
duct such a financial transaction which in fact involves
the proceeds of specified unlawful activity . . . knowing
that the transaction is designed in whole or in part . . .
to conceal or disguise the nature, the location, the
source, the ownership, or the control of the proceeds of
specified unlawful activity . . . shall be [guilty of a
felony punishable by up to twenty years in prison and
$500,000 in fines.]
§ 1956(a)(1). Thus, in order to secure a conviction under
section 1956(a)(1), the government must prove beyond a
reasonable doubt that the proceeds from a conspiracy
were knowingly derived from some illegal activity. See
Gracia, 272 F.3d at 873. Knowledge may be “proved by the
defendant’s conduct and by all of the facts and circum-
stances surrounding the case.” United States v. Fawley, 137
F.3d 458, 469 (7th Cir. 1998). The defendant’s knowledge
may also be established if he “deliberately avoided learning
the truth.” United States v. Inglese, 282 F.3d 528, 537 (7th
Cir. 2002).
According to Cassano, the government merely proved that
he helped White cash checks for “William Reinhardt,” whom
he was told was concealing marital assets from his wife.8 In
8
The defense cites 720 Ill. Comp. Stat. Ann. 5/16-4(4) for the
proposition that if White’s story was taken by Cassano as true,
Cassano was unaware of any underlying illegal activity because
the concealment of marital assets by one spouse from another is
not considered a theft under Illinois law if both parties reside in
(continued...)
14 Nos. 01-3857, 01-3919 & 01-4368
addition, the defense asserts White “played Cassano like a
violin with a very convincing overture,” while convincing
him the scheme was on the legitimate.
However, the great weight of the evidence establishes
that Cassano knew, or should have known, that the pro-
ceeds of the checks had their origin in an unlawful activity.
First, if Cassano believed he was providing a legal service
to White, Cassano would not have refused to co-sign the
checks himself when requested to do so by employees at the
Stone Park Currency Exchange. Also, evidence that the
checks were signed by William Reinhardt refutes Cassano’s
defense of ignorance. Cassano knew, or should have known,
that White’s story was false, because any rational person
attempting to conceal the proceeds of a business from his or
her spouse surely wouldn’t personally endorse the checks.
Furthermore, the record shows that Cassano was paid,
and paid very well, for minimal efforts. During the time
White was in jail, Cassano cashed five checks worth
$40,000. Cassano never turned the proceeds over to White
and it was reasonable for the jury to assume that he re-
tained the entire amount. In addition, subsequent to
White’s release from jail, Cassano was compensated, at his
request, amounts ranging from $100 to $500 per check—
rates which are well over the market rate for such services.9
Also, there is no legitimate reason why, once he was out of
8
(...continued)
the same abode at the time of the alleged theft. However, no evi-
dence was presented suggesting White went into detail about
“Reinhardt’s” situation or that Cassano had any reason to believe
such an arrangement was not, in fact, illegal.
9
The owner of the Stone Park Currency Exchange, Charles
Salvatore, testified that the going rate currency exchanges
charged for check cashing services were approximately 1-1.6%,
depending on the value of the check. A $500 fee on even a $9,500
check is in excess of 5.2%.
Nos. 01-3857, 01-3919 & 01-4368 15
jail, White could not cash the checks on his own. In essence,
Cassano was paid a fee for simply walking into the Stone
Park Currency Exchange and presenting the checks.
The evidence presented a trial was sufficient to lead
a “reasonable jury” to conclude that Cassano knew, or
should have known, that the proceeds of the conspiracy
were derived from unlawful activity. Therefore, we hold the
district court did not err in denying Cassano’s motion for
acquittal on this issue.
2. Structuring Charges
Cassano also claims that the evidence presented to the
jury was insufficient to uphold a conviction for structuring
of currency transactions, in violation of 31 U.S.C. §§ 5324
and 5322. Cassano bases his argument on his assertion that
he took no part in deciding what denominations the checks
would be made out for and, therefore, he lacked criminal
intent as to the structuring of the currency transactions to
evade Treasury Department reporting requirements. We
disagree.
Pursuant to 31 U.S.C. § 3513 the Secretary of the Trea-
sury has promulgated regulations that require financial
institutions, such as currency exchanges to “file a report of
each deposit, withdrawal, exchange of currency or other
payment or transfer . . . which involves a transaction in
currency more than $10,000.” 31 C.F.R. § 103.22(b)(1).10
Federal law makes it illegal for any person to “for the pur-
poses evading the reporting requirements . . . structure or
assist in structuring, or attempt to assist in structuring,
10
This report is commonly referred to as a Currency Transaction
Report. The actual document which must be filed is Internal
Revenue Service Form 4789.
16 Nos. 01-3857, 01-3919 & 01-4368
any transaction with one or more domestic financial in-
stitutions.” 31 U.S.C. § 5324. The treasury regulations
state:
[A] person structures a transaction if that person, act-
ing alone, or in conjunction with, or on behalf of, other
persons, conducts or attempts to conduct one or more
transactions in currency, in any amount, at one or more
financial institutions, on one or more days, in any
manner, for the purpose of evading the reporting
requirements under section 103.22 of this Part. “In
any manner” includes, but is not limited to, the break-
ing down of a single sum of currency exceeding $10,000
into smaller sums, including sums at or below $10,000,
or the conduct of a transaction, or series of currency
transactions, including transactions at or below
$10,000. The transaction or transactions need not
exceed the $10,000 reporting threshold at any single
financial institution on any single day in order to con-
stitute structuring within the meaning of this defini-
tion.
31 C.F.R. § 103.11(gg). Criminal penalties of up to five
years in prison and a fine of up to $250,000 may be imposed
on any “person willfully violating” the currency reporting
requirements. 31 U.S.C. § 5322. This court has previously
articulated what constitutes willful violation of the currency
reporting requirements. Under this standard, in order to
sustain a conviction, the government must prove “only that
a defendant had knowledge of the reporting requirements
and acted to avoid them.” United States v. Jackson, 983
F.2d 757, 767 (7th Cir. 1993).
It was entirely reasonably for the jury to conclude that
Cassano “had knowledge of the reporting requirements” and
that he “acted to avoid them.” Cassano’s partner in the
Bella Notte Restaurant, Frank Amanti, testified at trial
that the currency reporting requirements are “common
Nos. 01-3857, 01-3919 & 01-4368 17
restaurant knowledge.” Indeed, White testified that the
reason he originally sought Cassano’s help in cashing the
checks was because Cassano was in the restaurant business
and had access to financial institutions. In addition, the
amount line of the checks Cassano cashed while White was
in prison were not completed by White, thereby leading a
reasonable jury to conclude that Cassano filled in these
amounts. Finally, it is unlikely, to the point of absurdity,
that it was pure coincidence that all fifty-one checks cashed
by Cassano were in denominations under $10,000. There-
fore, because it was reasonable for the jury to conclude that
Cassano knew the currency reporting requirements and
acted to avoid them, we hold the defendant has not carried
his burden and the district court did not err in denying his
motion for judgment of acquittal on the structuring of
currency transaction charges.
B. Cassano’s Claims of Prosecutorial Misconduct in
Closing Arguments
Cassano next claims the district court erred in not grant-
ing his motion for a mistrial based on a number of state-
ments made by the government during closing arguments,
which he claims misstated both the law and the facts.
Specifically, Cassano alleges the government engaged in
misconduct during closing arguments by: (1) asserting that
Cassano was aware that White had previously been con-
victed of fraud and, in February of 1996, was going to jail in
relation to that conviction; (2) improperly characterizing
how long it took for Cassano to drive between his restau-
rant and the Stone Park Currency Exhcange as a “short
drive”;11 (3) stating that it was Cassano who decided “when
11
This issue was raised by the defense in their Motion for New
Trial and Arrest of Judgment. R. 224. However, the district court’s
(continued...)
18 Nos. 01-3857, 01-3919 & 01-4368
and how much” to cash the checks for when White was in
prison; (4) implying that Cassano knew White’s story about
Reinhardt was false at the time White suggested Cassano
cash checks for him;12 and (5) stating that the government’s
whole case against Cassano hinged upon the jury’s determi-
nation of whether the defendant know the money was
“dirty.” The district court ruled that a number of these
statements were indeed improper. However, the court found
that Cassano was not deprived of a fair trial because any
prejudice caused by the statements was cured by the court’s
jury instructions. We review the denial of a motion for
mistrial for abuse of discretion. See Smith, 308 F.3d at 739;
accord Magna, 118 F.3d at 1183.
This Court undertakes a two-part inquiry to determine
whether a district court’s decision not to grant a mistrial
based on statements made in summation was in error, ask-
ing: (1) whether the prosecutor’s arguments, when viewed
in isolation, were improper; and (2) if the comments are
found to be improper, whether in light of the record, the
remarks deprived the defendant of a fair trial. See United
States v. Aldaco, 201 F.3d 979, 988 (7th Cir. 2000); United
States v. Cotnam, 88 F.3d 487, 497-98 (7th Cir. 1996).
In determining whether the defendant was deprived of a
fair trial, we consider: “(1) the nature and seriousness of the
prosecutorial misconduct; (2) whether the conduct of the
defense counsel invited the prosecutor’s remarks; (3)
11
(...continued)
Memorandum and Order denying the defense motion did not
specifically address this issue. Because the issue was in front of
the district court in defendant’s motion, but not specifically
addressed, we assume the district court found the claim meritless
and review only for abuse of discretion. See United States v.
Smith, 308 F.3d 726, 739 (7th Cir. 2002); accord United States v.
Magna, 118 F.3d 1173, 1183 (7th Cir. 1997).
12
See supra note 11.
Nos. 01-3857, 01-3919 & 01-4368 19
whether the trial court’s instructions to the jury were ad-
equate; (4) whether the defense was able to counter the
improper arguments through rebuttal; and (5) the weight of
the evidence against the defendant.” United States v.
Durham, 211 F.3d 437, 442 (7th Cir. 2000).
Assuming, arguendo, the district court was correct in
concluding the prosecutor’s statements were improper, ap-
plication of the factors outlined in Durham to the facts of
this case establish that the defendant was not deprived of
a fair trial. Three of the factors outlined in that case weigh
heavily in favor of the prosecution. Because we believe the
prosecution’s comments did not prejudice Cassano, or de-
prive him of a fair trial, we affirm.
Only two factors weigh in Cassano’s favor. First, most of
comments complained of by the defense occurred during
rebuttal. Also, the government does not allege, and we do
not find that the defense did anything to provoke these
remarks. However, because the other three factors far out-
weigh the other two on the facts of this case, the defense’s
argument must fail.
As discussed above, the great weight of the evidence
in this case suggests Cassano’s guilt. For example, the fact
that the prosecutor improperly suggested that Cassano was
aware White had previously been in jail on fraud charges
did prejudice the defense. The evidence presented at trial
showed White and Cassano had been friends and golfing
buddies for approximately ten years. A reasonable juror
could conclude from this evidence alone that Cassano was
well aware of White’s criminal past. In addition, although
there was no direct evidence that Cassano knew White was
going back to jail in February of 1996 in relation to his prior
fraud conviction—and not solely on the basis of a DUI
conviction—the jury could have reasonably assumed that
due, to the nature of their relationship, Cassano was aware
of the White’s nefarious past. Also, characterizing Cassano’s
20 Nos. 01-3857, 01-3919 & 01-4368
drive from his restaurant to the Stone Park Currency
Exchange as “short” could not have prejudiced the jury. On
their own, jurors could have reasonably concluded that
Cassano’s compensation of $100 to $500 per check was not
fair compensation for his efforts. Likewise, the same can be
said of the defense’s other allegations of prosecutorial
misconduct. At bottom, none of the alleged instances of
misconduct were so serious as to offset the weight of the
circumstantial evidence compiled against Cassano during
the trial.
Similarly, any unfairness caused by the prosecutor’s al-
leged improper statements was minimal. The defense does
not allege, and we do not conclude, that any of the remarks
made by the prosecution in summation were inflammatory
or unconstitutional. See, e.g., Darden v. Wainwright, 477
U.S. 168, 180-81 n. 12 (1986) (holding no due process
violation where the prosecution stated: “I wish that I could
see [the defendant] sitting here with no face, blown away by
a shotgun”). The prosecutor may have made improper
statements, but the jury witnessed the evidence and was
supplied with jury instructions describing the law. There-
fore, they were free to disagree with the prosecutor’s con-
clusions. For example, in summation, concerning Cassano’s
knowledge of the crime, the government stated: “What
Mr. White said to Mr. Cassano is I want you to cash some
checks and here’s the story. Here’s the divorce story.”
(R. 3171). If this statement was misconduct at all, it was
not serious. The prosecutor may have drawn a conclusion
about the subtext of the conversation between Cassano and
White, i.e., that Cassano knew the divorce story was false.
However, the jurors could have simply disregarded the
prosecution’s view of events and draw their own conclu-
sions.
Finally, the district court’s instructions cured any pre-
judice the statements had on the defense. For example, in
Nos. 01-3857, 01-3919 & 01-4368 21
perhaps the clearest illustration of an improper statement
in summation, the prosecutor suggested that in order to
convict Cassano the jury only needed to find that he knew
the money was “dirty.” This statement, as the district court
found, is a not an accurate portrayal of the law. However,
upon objection to that statement the judge reassured the
defense by telling them that “[the jurors] have been given
instructions [on the law] and they will have the instructions
to take into the jury room.” (R. 3174) Because this court
presumes the jury followed the judge’s instructions as to the
law they were to apply, see United States v. McKinney, 954
F.2d 471, 478 (7th Cir. 1992), we cannot conclude the
district court erred in finding this statement by the prosecu-
tor did not deprive the defendant of a fair trial.
As for the prosecutor’s other statements, the judge’s
instruction that “the lawyers’ statements [during summa-
tion] are not evidence,” in conjunction with the court’s ad-
monition to the jury about following the instructions was
adequate to mitigate any unfairness caused. Therefore,
because the comments made by the prosecutor in summa-
tion did not deprive the defendant of a fair trial, we hold the
trial court did not abuse its discretion in denying Cassano’s
motion for a mistrial.
C. Multiplicity
Next, Cassano alleges, for the first time on appeal, that
counts sixteen and seventeen, which deal with structuring,
are multiplicitous and should be reversed and the matter
remanded for resentencing. Essentially, a claim of mul-
tiplicity alleges that separate counts in an indictment
charge a single offense. See United States v. Conley, 291
F.3d 464, 469 n. 4 (7th Cir. 2002); United States v. Briscoe,
896 F.2d 1476, 1522 (7th Cir. 1990) (citing United States v.
Marquardt, 786 F.2d 771, 778 (7th Cir. 1986)). The danger
presented by multiplicitous charges is that the defendant
22 Nos. 01-3857, 01-3919 & 01-4368
will be punished more than once for a single crime, offend-
ing the Double Jeopardy Clause of the Constitution. See
United States v. Podell, 869 F.2d 328, 330 (7th Cir. 1989).
Because Cassano failed to raise his multiplicity claim
prior to appeal, we review only for plain error. See United
States v. Olano, 507 U.S. 725, 733 (1993); Briscoe, 896
F.2d at 1522. “A plain error is one that results in ‘an actual
miscarriage of justice.’ ” Id. (quoting United States v. Wynn,
845 F.2d 1439, 1442 (7th Cir. 1988)). To test for multi-
plicity, a court must “determine[ ] whether each count re-
quires proof of a fact which the other does not.” United
States v. Gonzales, 933 F.2d 417, 424 (7th Cir. 1991)
(internal citations omitted). “If one element is required to
prove the offense in one count which is not required to
prove the offense in the second count, there is no multiplic-
ity.” Conley, 291 F.3d at 470.
Counts sixteen and seventeen of the indictment allege
Cassano, on two separate dates, structured the cashing of
CNA checks so as to avoid the filing of a Currency
Transaction Report (I.R.S. Form 4789). Cassano cites this
court’s decision in United States v. Davenport, 929 F.2d
1169 (7th Cir. 1991), for the proposition that although there
may be separate deposits made, they may all be part and
parcel of “one structuring, one violation.” Id. at 1171.
However, the Davenport case can be easily distinguished. In
Davenport, the defendants structured deposits of the
proceeds from a single transaction, i.e., they were depositing
chunks of a $100,000 transaction in increments of less than
$10,000 at a time to avoid the reporting requirements. Id.
Such is not the case here. The indictment alleges that two
separate transactions were structured, on two separate
dates. The government alleged that the two transactions, of
approximately $12,000 a piece, were split into two checks
and cashed on the same day for no other reason than to
avoid reporting requirements. Merely because the misap-
Nos. 01-3857, 01-3919 & 01-4368 23
propriated funds were derived from the same source does
not mean they are part of a single transaction. Such a
holding would defy logic as well as common sense. See id.
(holding that “the structuring itself, and not the individual
deposit, is the unit of crime”) Therefore, we hold there was
no “actual miscarriage of justice” that resulted from
Cassano being charged with two counts of structuring on
two separate dates and we decline to reverse his conviction
on these counts.
D. Hearsay Evidence
The final issue Cassano raises on review concerns alleged
hearsay statements made by White during his testimony at
trial. Cassano claims the prosecution elicited inadmissable
hearsay evidence in its direct examination of White regard-
ing the reluctance of two unidentified individuals to take
part in the conspiracy when asked to do so. Specifically,
Cassano claims the district court erred in not granting his
motion for a new trial, because the following testimony
constituted inadmissible hearsay:
Q: Did you speak with anyone at—well, what, if any-
thing, did you do to prepare for the checks continu-
ing to come before you went to jail?
A: Well, I tried to find somebody who would be able to
handle it while I was gone, you know, to cash the
checks for me.
Q: How many people did you talk to?
A: I think three.
Q: Did the first two people agree to help?
Mr. Meyer [for defendant Cassano]: Objection, Your
Honor, hearsay.
24 Nos. 01-3857, 01-3919 & 01-4368
The Court: I’ll sustain the objection. You can rephrase
that, counsel.
***
Q: Did that first person help you?
Mr. Meyer: Judge, that question calls for a hearsay
answer.
The Court: You’ve already objected to that, counsel.
Overruled.
Q: Did that first person help you?
A: No.
Q: Did the second person help you?
A: No.
Mr. Meyer: Judge, could I have a continuing objection?
The Court: The record will reflect your continuing
objection, counsel.
(Tr. 1083-85.)
We review the evidentiary decisions of the district court
for an abuse of discretion. United States v. Bonner, 302 F.3d
776, 780 (7th Cir. 2002). A hearsay “statement” is defined
by the Federal Rules of Evidence as: “(1) an oral or written
assertion or (2) nonverbal conduct of a person, if it is
intended by the person as an assertion.” Fed. R. Evid.
801(a). Hearsay, is a statement “other than one made by the
declarant while testifying at the trial, or hearing, offered in
evidence to prove the truth of the matter asserted.” Fed. R.
Evid. 801(c).
First, White’s testimony did not contain a “statement” or
nonverbal “assertion” of a third-party declarant under Rule
801. The Advisory Committee to the Federal Rules of
evidence, in its notes to Rule 801, explains that “the defi-
nition of statement is to exclude from the operation of
Nos. 01-3857, 01-3919 & 01-4368 25
the hearsay all evidence of conduct, verbal or nonverbal, not
intended as an assertion.” Fed. R. Evid. 801 advisory
committee’s note. The testimony recounted above contains
nothing which could be reasonably characterized as an as-
sertion. White’s testimony merely described the nonas-
sertive conduct of the first two men whom he requested
help cashing checks from, which cannot be considered
hearsay. See United States v. Perez, 658 F.2d 654, 659 n. 4
(9th Cir. 1981) (“Nonassertive conduct is admissible
whether it is verbal or nonverbal.”).
Also, assuming we did find an assertion was made, the
statement would not be one “offered in evidence to prove the
truth of the matter asserted.” Fed. R. Evid. 801(c). White
was describing what he did, and any negative assertion by
the men was offered, not to prove the truth of the matter,
but to describe the effect on White’s conduct and how it was
he came to ask Cassano to help in the conspiracy. See
United States v. Linwood, 142 F.3d 418, 424-25 (7th Cir.
1998) (a statement used to explain why someone reacted as
they did upon hearing a statement is admissible for a non-
hearsay purpose).
Because White’s testimony does not contain a “statement”
and was not offered “to prove the truth of the matter
asserted,” we hold that the district court did not err, let
alone abuse its discretion in denying Cassano’s motion for
a new trial on the grounds that hearsay evidence was ad-
mitted.
E. William’s Motion for Acquittal
Like Cassano, Williams claims the district court erred
in denying his motion for judgment of acquittal. Williams
claims the government failed to prove, beyond a reason-
able doubt, criminal intent on his part with respect to the
charges of mail fraud, conspiracy to launder monetary in-
struments, and engaging in monetary transactions with
26 Nos. 01-3857, 01-3919 & 01-4368
criminally derived property. We review the denial of a mo-
tion for acquittal de novo. O’Hara, 301 F.3d at 569. Also, as
stated above, the denial of a motion for acquittal on suf-
ficiency of the evidence grounds will be reversed on review
“only when the record is devoid of any evidence, regardless
of how it is weighed, from which a jury could find guilt
beyond a reasonable doubt.” Thompson, 106 F.3d at 799. We
hold that Williams has failed to meet this lofty burden.
The evidence presented against Williams at trial was
certainly sufficient for a jury to find that Williams knew, or
should have know, that he was participating in an un-
lawful, criminal activity. The evidence established that over
two-years time Williams’ fictitious company, Fidelity
Graphics, received $1.3 million in CNA checks for doing
little or no work. The amount of money received for doing
little or no work, viewed in isolation, could lead a jury to
believe that Williams knew or should have known that he
was engaged in a fraudulent and unlawful undertaking. See
Inglese, 282 F.3d at 537.
Furthermore, Fidelity Graphics only existed on paper and
never serviced any clients or served any other purpose other
than as a vehicle for laundering the monies derived from
CNA checks. In addition, 65% of the funds derived from the
CNA checks was immediately turned over to Cross in cash.
Finally, Williams used the proceeds from the CNA checks
on personal items such as luxury goods and financial
investments.
Williams counters by claiming that he believed he was
being compensated either for being a minority business
owner and for producing invoices. However, trial evidence
refutes both of these claims. When asked to do so, Williams
could produce no invoices he prepared for CNA. Likewise,
CNA had no record of, and could not locate, any invoices
allegedly prepared by Williams or Fidelity Graphics. Also,
although Fidelity Graphics held itself out to be a certified
Nos. 01-3857, 01-3919 & 01-4368 27
minority-owned corporation, it was in fact neither a corpo-
ration nor was it certified as minority owned. Therefore,
even Williams’ defense is predicated on a fraud.
Although primarily circumstantial, the evidence pre-
sented at trial was more than sufficient to support a
conclusion by the jury that beyond a reasonable doubt
Williams was, at a minimum, deliberately ignorant of the
underlying fraud taking place at CNA. See Gracia, 272 F.3d
at 874 (“Circumstantial evidence is sufficient support, and
may be the sole support, for a conviction.”); see also Inglese,
282 F.3d at 537 (“actual knowledge and the deliberate
avoidance of knowledge are the same thing”). Thus, we hold
the district court did not err in denying Williams’ motion for
acquittal as a matter of law.
F. Cross’ and Williams’ Motions for Severance
Both Cross and Williams claim they were denied a fair
trial due to the trial judge’s failure to grant their respective
motions to sever. Williams moved for severance prior to
trial, claiming Cross would make inculpatory statements
about Williams. Cross made his motion during the trial,
claiming he was being unfairly prejudiced by Williams’
attorney who was acting as a “second prosecutor.” Both
motions were denied, but were never renewed at the end of
evidence.
Williams asserted that co-defendant Cross would offer
inculpatory evidence regarding Williams’ knowledge of the
underlying unlawful origin and nature of the CNA check
payments he received. The court denied Williams’ pre-trial
motion because he had failed to produce any evidence or
affidavits supporting his claims regarding Cross’ expected
testimony. Williams further claims that, during trial, Cross’
testimony contradicted his own and, therefore, prejudiced
him.
28 Nos. 01-3857, 01-3919 & 01-4368
For example, Cross testified that he did not have
an arrangement with Williams to split the checks 30-70
with each receiving cash. Cross also claimed he never told
Williams that the 70% he received was being paid to sub-
contractors who were actually performing the mailing work.
Indeed, he claimed never to have received any cash from
Williams at all. In addition, Cross denied that Fidelity
Bindery only did invoicing, but claimed they did “prep”
work as well. Cross also testified that he never told Wil-
liams that CNA was hiring Williams’ company to dem-
onstrate minority participation. Williams claims these
contradictions denied him a fair trial and that the district
court erred in not granting his motion to sever.
Cross also claims his trial rights were severely prejudiced
by not being granted a motion to sever. At trial, Williams’
attorney elicited the following testimony from Frank Erion,
a CNA investigator, regarding Cross’ criminal intent, which
was the basis of Cross’ motion to sever:
Q: You say [Williams] kept 35 percent [of the amount
that Fidelity Graphics was billing CNA], correct?
A: Correct.
Q: And 65 percent was sent back to CNA to cover the
printing, et cetera, being performed by other en-
tities?
A: Correct, [Williams] said that.
Q: And the reason that it was being sent back was to
cover the costs of these other expenses, correct?
A: Correct.
Q: And Williams told you that Cross told him that he
needed to be paid in cash, that CNA needed to be
paid in cash, right?
A: Correct.
Nos. 01-3857, 01-3919 & 01-4368 29
(Tr. 944.) Counsel for Cross objected on the basis of hear-
say, which the court overruled as untimely, at which time
Cross moved for severance and a mistrial. However, Wil-
liams’ counsel told the court he planned to call Williams at
trial. The trial judge denied Cross’ motions, reasoning Cross
would have an opportunity to cross-examine Williams as to
the statements made to the investigator, thereby curing any
unfair prejudice the testimony may have caused. The court
also admonished the jury not to consider the testimony as
it related to Cross, but only as to the government’s case
against Williams.
We review the denial of a motion to sever by a trial judge
for abuse of discretion only. See United States v. McClurge,
311 F.3d 866, 871 (7th Cir. 2002), “In all but the ‘most
unusual circumstances,’ the risk of prejudice arising from
a joint trial is ‘outweighed by the economies of a single trial
in which all facets of the crime can be explored once and for
all.’ ” Id. (citing United States v. Blassingame, 197 F.3d 271,
286 (7th Cir. 1999)). However, unless a motion to sever is
renewed at the close of the evidence, it is waived. See
United States v. Rollins, 301 F.3d 511, 518 (7th Cir. 2002).
“The timing of the motion is important because the close of
evidence is the moment when the district court can fully
ascertain whether the joinder of multiple counts was
unfairly prejudicial to the defendant’s right to a fair trial.”
Id. A waiver of this nature generally precludes appellate
review of any kind. See United States v. Olano, 507 U.S.
725, 733 (1993). The reason for this is to avoid giving the
defense incentive to first try to gain an acquittal and then,
post-conviction, getting “another crack at the jury.” Rollins,
301 F.3d at 518 (quoting United States v. Taglia, 922 F.2d
413, 417 (7th Cir. 1991)). However, the failure to renew a
motion to sever may be excused if the defendants can
“demonstrate that refiling [the motion to sever] would have
been . . . futile.” United States v. Caudill, 915 F.2d 294, 298
(7th Cir. 1990).
30 Nos. 01-3857, 01-3919 & 01-4368
However, neither Cross nor Cassano have demonstrated
that renewal would have been futile, nor have they given
any compelling reason why this court should not hold that
their right to appellate review on this issue has been
waived. Indeed, the court’s ruling on the motion to sever
suggests the court was willing to hear the testimony of
Williams under the assumption that any prejudice caused
to Cross could be cured on cross examination. Also, Cross’
testimony was the basis of Williams’ pre-trial motion to
sever, therefore, if Williams objected to the nature of that
testimony, a renewed motion to sever would have been en-
tirely proper. The close of evidence would have been the
perfect time for the trial judge to evaluate the prejudicial
effect of any of the testimony given at trial to determine
whether severance was proper. See Rollins, 301 F.3d at 518.
Therefore, because the renewal of the motion to sever at the
close of evidence would not have been futile, and because
the defendants have waived their right to review on this
issue, we see no reason to stray from the well-established
rule that once “a claim has been waived, there is generally
no appellate review.” Rollins, 301 F.3d at 518.
III. CONCLUSION
For the reasons discussed herein, the district court’s
judgment is
AFFIRMED.
Nos. 01-3857, 01-3919 & 01-4368 31
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—6-16-04