United States v. Takasha Stevenson

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 15-11677
Non-Argument Calendar
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D.C. Docket No. 2:14-cr-00135-KD-N-16
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
TAKASHA STEVENSON,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Alabama
________________________
(October 11, 2016)
Before WILSON, ROSENBAUM, and ANDERSON, Circuit Judges.
PER CURIAM:
Takasha Stevenson appeals her conviction for conspiracy to commit money
laundering pursuant to 18 U.S.C. § 1956(h) (2012). Stevenson argues that there
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was insufficient evidence supporting her conviction. She also argues that the
district court’s jury instructions regarding the definitions of money laundering
were plainly erroneous.
I.
In a ruling on a motion for judgment of acquittal, we must determine
“whether there is substantial evidence from which a jury could reasonable find the
defendant[] guilty beyond a reasonable doubt.” United States v. Gregory, 730 F.2d
692, 706 (11th Cir. 1984). We review the sufficiency of the evidence de novo,
viewing the evidence in the light most favorable to the government and making all
reasonable inferences and credibility choices in the government’s favor. United
States v. Edouard, 485 F.3d 1324, 1349 (11th Cir. 2007).
“The jury gets to make any credibility choices, and we will assume that they
made them all in the way that supports the verdict.” United States v. Thompson,
473 F.3d 1137, 1142 (11th Cir. 2006). A defendant who chooses to testify runs the
risk that the jury, if it does not find the testimony credible, might conclude that its
opposite is true. United States v. Brown, 53 F.3d 312, 314 (11th Cir. 1995). The
jury is free to choose between or among the reasonable conclusions to be drawn
from the evidence presented at trial, and the court must accept all reasonable
inferences and credibility determinations made by the jury. United States v.
Molina, 443 F.3d 824, 828 (11th Cir. 2006).
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To obtain a conviction for conspiracy to launder money, the government
must prove beyond a reasonable doubt that (1) two or more persons agreed to
launder money and (2) the defendant, knowing the unlawful plan, voluntarily
joined the conspiracy to launder money. United States v. Martinelli, 454 F.3d
1300, 1310 (11th Cir. 2006). The existence of an agreement may be proven by
circumstantial evidence, including inferences from the conduct of the alleged
participants or from circumstantial evidence of a scheme. United States v. Azmat,
805 F.3d 1018, 1037 (11th Cir. 2015), cert. denied, — U.S. —,136 S. Ct. 2012
(2016). The government may establish knowledge of an illegal agreement by
showing that the defendant knew the essential object of the conspiracy. Id. A
central aspect of a money laundering conspiracy charge is that the defendant knew
that the funds involved in the transactions represented the proceeds of unlawful
activity. See United States v. Awan, 966 F.2d 1415, 1434 (11th Cir. 1992).
To obtain a conviction for the substantive offense of money laundering
under 18 U.S.C. § 1956, the government must prove that (1) the defendant
conducted or attempted to conduct a financial transaction; (2) the transaction
involved the proceeds of an unlawful activity; (3) the defendant knew the proceeds
were from some form of illegal activity; and (4) either (a) the defendant engaged in
the financial transaction with the intent to promote the carrying on of a specified
unlawful activity, or (b) the defendant engaged in the financial transaction
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knowing that the transaction was designed in whole or in part to conceal or
disguise the nature, location, source, ownership, or the control of the proceeds. 18
U.S.C. § 1956(a)(1)(A)(i), (B)(i).
Here, there was sufficient evidence from which the jury could reasonably
conclude that Stevenson knowingly and voluntarily joined a money laundering
scheme. Witnesses testified that Stevenson delivered drugs, stored drugs, stored
the cash proceeds of drug sales, and wired money for drug payments.1 Stevenson
testified that she knew of Wesley Tubbs’ prior drug-related convictions. The
government produced evidence of cash transfers into Stevenson’s account and
expert testimony that the pattern of transfers and withdrawals was indicative of the
movement of drug proceeds. Additionally, Stevenson’s own testimony that she did
not know that the money transferred into her account was the proceeds of drug
trafficking could support the jury’s conclusion that she did know this. See Brown¸
53 F.3d at 314. There was also testimony that Stevenson asked Tubbs for money.
Drawing all inferences in favor of the government, the jury could conclude beyond
a reasonable doubt that there existed an agreement to launder money — i.e. that
Tubbs and his associates agreed to pay drug trafficking proceeds to Stevenson in
1
Stevenson’s argument that the trial judge mentioned at sentencing that she found all but one of
the government’s lay witnesses not to be credible is unavailing. Credibility determinations are
for the jury. See Thompson, 473 F.3d at 1142.
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order to assure her continued cooperation or to conceal their source — and that
Stevenson knowingly and voluntarily joined that agreement.
II.
Jury instructions that are challenged for the first time on appeal are reviewed
for plain error. United States v. Felts, 579 F.3d 1341, 1343 (11th Cir. 2009) (per
curiam). 2 Under the “plain error” standard, the defendant must demonstrate that
(1) an error occurred, (2) the error was plain, and (3) the error affected substantial
rights. Id. at 344. For an error to be plain, it must be one that is obvious and clear
under current law. United States v. Dortch, 696 F.3d 1104, 1112 (11th Cir. 2012).
An error is not obvious and clear when no Supreme Court decision squarely
supports the defendant’s argument, “other circuits . . . are split” regarding the
resolution of the argument, and we have never resolved the issue. Id.
“A district judge is vested with broad discretion in formulating a jury charge
so long as the charge as a whole accurately reflects the law and the facts.” Felts,
579 F.3d at 1344 n.1. A conviction will not be reversed on the basis of an
improper jury charge unless “the issues of law were presented inaccurately, the
charge included crimes not in the indictment, or the charge improperly guided the
2
Stevenson relies on language taken from Neder v. United States, 527 U.S. 1, 119 S. Ct. 1827
(1999), to assert that a jury instruction omitting an element of the offense is subject to “harmless
error” review. This is incorrect. In Neder, the defendant had timely objected to the jury
instruction. See id., 527 U.S at 6, 119 S. Ct. at 1832. Where no objection is made to a jury
instruction at trial, plain error review applies. See Felts, 579 F.3d at 1343.
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jury in such a substantial way as to violate due process.” Id. (quoting United States
v. Turner, 871 F.2d 1574, 1578 (11th Cir. 1993) (citations omitted)).
When a party “induces or invites” the district court into making an error, the
doctrine of invited error precludes the party from seeking review of that error on
appeal. United States v. Brannan, 562 F.3d 1300, 1306 (11th Cir. 2009) (quoting
United States v. Stone, 139 F.3d 822, 838 (11th Cir. 1998) (per curiam)). Merely
failing to object to the jury instructions does not trigger the doctrine of invited
error. Dortch, 696 F.3d at 1112.
Stevenson alleges three inadequacies in the jury instruction: First, the jury
instructions did not further define the term “with the intent to promote the carrying
on of specified lawful activity.” Second, the jury instructions did not define
“concealment.” Third, the jury instructions did not define the term “proceeds.”
The doctrine of invited error bars Stevenson from challenging the jury
instructions on the basis of their failure to define “proceeds.” A mere failure to
object to a jury instruction does not trigger the doctrine. See Dortch, 696 F.3d at
1112. But when a defendant specifically agrees to a particular instruction, the
doctrine of invited error applies. See United States v. Fulford, 267 F.3d 1241,
1247 (11th Cir. 2001) (holding that defendant was barred from challenging specific
supplemental jury instruction when the defendant’s counsel had stated “the
instruction is acceptable to us”). Here, the trial judge explicitly asked Stevenson’s
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counsel whether he wanted to include the very definition (of “proceeds”) whose
omission is now alleged to be error, and he declined. Because Stevenson invited
any error with regard to the omission of this definition, she cannot challenge it on
appeal. 3
The district court’s omission of definitions of “concealment” and “with the
intent to promote the carrying on of specified unlawful activity” was not plain
error.4 Assuming, for the sake of argument, that the omission was erroneous,
Stevenson must show that the error was plain — that is, it is obvious and clear
3
Even if the doctrine of invited error did not apply to bar Stevenson’s challenge to the omission
of a definition of “proceeds” from the jury instructions, Stevenson’s challenge would fail
because any error was not plain. Stevenson argues that, in United States v. Santos, 553 U.S. 507,
128 S. Ct. 2020 (2008), the Supreme Court defined “proceeds” to mean profits, rather than
receipts. Id., 553 U.S. 513, 128 S. Ct. 2025 (plurality opinion). But the Santos holding is
controlled by Justice Stevens’ concurrence in the judgment, which limited the definition of
proceeds to gambling operations, see id., 553 U.S. 528, 128 S. Ct. 2033–34 (opinions of Stevens,
J.), and strongly suggested that “proceeds” should mean revenues in cases involving sales of
contraband. See id., 553 U.S.525–26, 128 S. Ct. 2031–32. We have consistently read Santos as
applying only to cases involving gambling operations. See United States v. Jennings, 599 F.3d
1241, 1252 (11th Cir. 2010) (“The narrow holding in Santos, at most, was that the gross receipts
of an unlicensed gambling operation were not ‘proceeds’ under section 1956.”) (quoting United
States v. Demarest, 570 F.3d 1232, 1242 (11th Cir. 2009)). Further, we note that because
Stevenson was charged with conspiracy to launder money rather than with the substantive
offense, the government was not required to prove the actual nature of the money transferred.
Thus, the omission of a definition of “proceeds” did not constitute plain error.
4
The government argues that Stevenson’s challenges to the omission of these definitions are also
barred by the doctrine of invited error. This is incorrect. Stevenson’s counsel was asked if he
had any objections to the jury instructions in toto, to which he responded in the negative (with
one exception not relevant here). This cannot be said to have induced the district court into
making the errors that Stevenson now alleges. Rather, Stevenson’s statement that she had no
objections to the jury instruction should be considered a failure to object. See Dortch, 696 F.3d
at 1112; see also United States v. Fuentes, 537 F. App’x 921, 926 (11th Cir. 2013) (unpub.)
(rejecting argument that defendant invited error by failing to object when asked if parties were
“satisfied with the reading of the instructions”).
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under current law. See Dortch, 696 F.3d at 1112. An error is not plain if no
Supreme Court precedent squarely supports the defendant’s argument, “other
circuits . . . are split,” and we have not resolved the issue. See id. Stevenson has
cited no case to support her position that the omission of these definitions was
erroneous, and we can find none. Accordingly, the omission does not constitute
plain error. 5
Stevenson invited any error with regard to the district court’s omission of
further definition of the term “proceeds” and any error involving omission of the
other definitions was not plain error. We affirm.
AFFIRMED.
5
The omission of the definitions, even if erroneous, does not meet the high bar of plain error.
Stevenson provides little explanation of how further clarification of these terms would have
affected the jury’s verdict. The omitted definition of “with the intent to promote the carrying on
of specified unlawful activity” reads “the Defendant must have [conducted] [attempted to
conduct] the financial transaction for the purpose of making easier or helping to bring about the
‘specified unlawful activity’ as just defined.” Eleventh Circuit Pattern Jury Instructions
(Criminal Cases) 74.1 (2016). The omitted definition — essentially, informing the jury that
“intent” means “purpose” and “promote” means “make easier or help” — is similar to the
language that the court included in the jury instruction and does not omit any element of the
money laundering offense. The pattern jury instructions do not include further definition of
“concealment,” and Stevenson does not suggest an alternative formulation. See id. 74.2.
Regardless, we are satisfied that the failure to further define this term did not amount to plain
error. The omission of the definitions of “concealment” and “intent to promote” was not plain
error.
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