United States v. David Moro

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 11-3838
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UNITED STATES OF AMERICA
v.
DAVID MORO,
Appellant
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Appeal from the United States District Court
for the District of New Jersey
(D.C. Criminal No. 2-09-cr-00137-001)
District Judge: Honorable William H. Walls
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Submitted Under Third Circuit LAR 34.1(a)
November 13, 2012
Before: RENDELL, FUENTES and CHAGARES, Circuit Judges
(Opinion Filed: November 29, 2012)
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OPINION OF THE COURT
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RENDELL, Circuit Judge.
On November 16, 2010, after a six-week trial, Appellant David Moro was
convicted of thirty-three counts of conspiracy, mail and wire fraud, bank fraud, money
laundering, and making false statements to government officials. On October 12, 2011,
Judge Walls sentenced Moro to a term of imprisonment of 126 months, to be followed by
a five-year term of supervised release. Additionally, Judge Walls ordered Moro to pay
restitution totaling $3,589,350 to various victims. Moro’s appeal is currently before this
Court. For the reasons that follow, we will affirm the District Court.
I. Background
We write principally for the benefit of the parties and therefore recount only those
facts essential to our review.
In 1999, Moro founded Inchon LLC, a company whose purpose was to bring
Russian-language radio and Internet-based programs to a global audience. (App. 2153,
2155.) In addition to receiving investments to develop Inchon’s hardware and software,
Inchon also received financing from banks and other lenders for the purpose of acquiring
digital servers to further develop Inchon’s digital programming. (App. 68-69, 119, 1013-
14, 2169-71.) The lenders purchased the servers from a vendor, which then leased the
servers to Inchon. (Id.) Moro, however, arranged for the vendor to give Inchon the
money the lenders had paid to purchase the servers and used those funds for other
purposes. (App. 1134.) In other words, instead of applying for the funds directly, Moro
used the vendors to obtain funds from the lenders. (App. 1084, 2192, 2198.) In
connection with these transactions, the government alleged that Moro misrepresented
Inchon’s financial health, mischaracterized the relationship between the vendors and
Inchon, prepared fraudulent tax filings and invoices, and attempted to shift blame for the
fraudulent financial information to a fictitious individual. Moro denied this fraudulent
scheme.
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On February 27, 2009, a grand jury returned a 34-count indictment, charging
Moro with one count of conspiracy to commit wire fraud (18 U.S.C. § 1349), six counts
of mail fraud (18 U.S.C. § 1341), five counts of wire fraud (18 U.S.C. § 1343), three
counts of bank fraud (18 U.S.C. § 1344), seventeen counts of money laundering (18
U.S.C. § 1957), and two counts of making false and fraudulent statements to government
officials (18 U.S.C. § 1001). (App. 2853-77.) On September 28, 2010, a jury trial
commenced before Judge Walls, and on the fourth day of trial, Moro requested “hybrid”
representation, or alternatively, to proceed pro se. (App. 255.) The District Court
permitted Moro to proceed pro se, with “standby counsel,” but refused to permit hybrid
representation. (App. 281.) Nearly five weeks later, the jury returned a guilty verdict on
all counts except for one count of making false and fraudulent statements to government
officials.
The instant appeal followed. Moro asserts four issues on appeal: (1) whether the
District Court erred in denying Moro’s request for “hybrid” representation and whether
the District Court properly ensured that Moro’s decision to proceed pro se was voluntary;
(2) whether the District Court erred by permitting the government to present certain
evidence; (3) whether Moro’s convictions on the money laundering counts were
supported by legally sufficient evidence; and (4) whether the District Court erred by
commenting on Moro’s military service at sentencing.
The District Court had jurisdiction pursuant to 18 U.S.C. § 3231, and we have
jurisdiction pursuant to 28 U.S.C. § 1291. This Court has jurisdiction to review Moro’s
sentence pursuant to 18 U.S.C. § 3742.
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II. Discussion
A. “Hybrid” Representation
The first issue on appeal is whether the District Court erred in denying Moro’s
request for “hybrid” representation and whether the District Court properly ensured that
Moro’s decision to proceed pro se was voluntary. We review a district court’s decision
addressing a defendant’s request for hybrid representation for abuse of discretion. United
States v. Bankoff, 613 F.3d 358, 373-74 (3d Cir. 2010); see also United States v. Stevens,
83 F.3d 60, 66-67 (2d Cir. 1996). We give plenary review as to the voluntariness of a
defendant’s waiver of the right to counsel. United States v. Peppers, 302 F.3d 120, 127
(3d Cir. 2002).
A criminal defendant has no right to “hybrid” representation. McKaskle v.
Wiggins, 465 U.S. 168, 183 (1984). Moreover, a “defendant does not have a
constitutional right to choreograph special appearances by counsel.” Id. Accordingly,
the decision to permit a defendant to proceed as “co-counsel” in his own case, or pro se,
is within the discretion of the District Court. Bankoff, 613 F.3d at 373-74 (quoting
Stevens, 83 F.3d at 67). The District Court refused to permit hybrid representation in this
case. (App. 281-82.) We find that the District Court did not abuse its discretion in
arriving at that decision.
Moro also claims that the waiver of his right to counsel was involuntary because
the District Court erroneously denied his request for hybrid representation, and therefore,
he was compelled to proceed pro se. Because we find that the District Court did not err
in refusing to grant Moro’s request for hybrid representation, this claim fails.
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Furthermore, the record is replete with evidence to suggest that Moro’s waiver of counsel
was knowing and understanding, and voluntary. See Peppers, 302 F.3d at 130-31(finding that waiver of Sixth Amendment rights must be knowing and understanding, and
voluntary). The record affirmatively indicates that Moro clearly and unequivocally
declared to the trial judge that he wanted to represent himself; that he was literate,
competent, and understanding; and that he was voluntarily exercising his informed free
will. See Faretta v. California, 422 U.S. 806, 835 (1975). Accordingly, we will affirm
the District Court’s denial of Moro’s request to proceed with hybrid representation and
conclude that Moro’s waiver of counsel was voluntary.
B. Prosecutorial Misconduct
Moro also alleges that he was deprived of a fair trial due to prosecutorial
misconduct, because the government (1) posed guilt-assuming hypothetical questions to
witnesses, (2) asked a witness what Moro meant in recorded conversations, and (3) used
the terms “confession” and “admission” in summation. In reviewing claims of
prosecutorial misconduct, the standard of review depends on whether the defendant
asserted objections: when contemporaneous objections are asserted, we review the
District Court’s ruling for abuse of discretion, and any non-contemporaneous objections
are subject to plain error review. United States v. Brennan, 326 F.3d 176, 182 (3d Cir.
2003). Regardless of what standard of review we apply in this case, we find that the
government did not commit misconduct. We cannot find that the questioning by the
government was inappropriate – at any rate, it certainly did not rise to a level that
warrants setting aside Moro’s conviction. Furthermore, the record does not indicate that
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the government exceeded its “considerable latitude in summation.” United States v. Lee,
612 F.3d 170, 194 (3d Cir. 2010) (quoting United States v. Werme, 939 F.2d 108, 117 (3d
Cir. 1991)).
C. Sufficiency of the Evidence
Next, we address Moro’s argument that his convictions on Counts Sixteen through
Thirty-Two of the Indictment, for laundering criminally-derived proceeds in violation of
18 U.S.C. § 1957(a), must be reversed because the evidence was legally insufficient to
support the jury’s verdict. This Court applies a highly deferential standard of review to
challenges on sufficiency grounds, United States v. Hart, 273 F.3d 363, 371 (3d Cir.
2001), and will only reverse where there is “no evidence, regardless of how it is
weighted, from which the jury could find guilt beyond a reasonable doubt,” United States
v. Mussare, 405 F.3d 161, 166 (3d Cir. 2005) (quoting United States v. Anderson, 108
F.3d 478, 481 (3d Cir. 1997)).
Section 1957(a) of title 18 makes it unlawful for a person to “knowingly engage[]
or attempt[] to engage in a monetary transaction in criminally derived property of a value
greater than $10,000 and is derived from specified unlawful activity.” The term
“criminally derived property” means “any property constituting, or derived from,
proceeds obtained from a criminal offense.” 18 U.S.C. § 1957(f)(2). Moro argues that
“proceeds,” in this case, means “net profits,” and that the government failed to prove that
the transactions involved net profits. The Supreme Court addressed whether the term
“proceeds” in federal money laundering statutes refers to the “gross receipts” or the “net
profits” from a criminal enterprise in United States v. Santos, 553 U.S. 507 (2008).
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Justice Stevens’ controlling concurring opinion concluded that “proceeds” means “net
profits” only where a merger problem increases a defendant’s sentencing exposure in a
way Congress could not have intended. Id. at 525, 528 n.7. Additionally, in the Third
Circuit, “proceeds are derived from an already completed offense, or a completed phase
of an ongoing offense, before they can be laundered.” United States v. Yusuf, 536 F.3d
178, 186 (quoting United States v. Conley, 37 F.3d 970, 980 (3d Cir. 1994)).
In this case, each fraud offense was complete when the victimized lender sent
money to vendors. (App. 2861-70.) The § 1957 offenses charge the subsequent transfers
of those fraudulent proceeds to Inchon. (App. 2871-72.) Thus, those subsequent
transfers were not essential elements of the completed fraud offenses, and there was
therefore no merger problem. See Abuhouran v. Grondolsky, 643 F. Supp. 2d 654, 669
(D.N.J. 2009) (“Whatever was done with the proceeds of each loan was the start of a new
activity, a separate crime if done with the requisite intent.”), aff’d 392 Fed. App’x 78 (3d
Cir. 2010). Because there was undoubtedly sufficient evidence for the jury to conclude
that the transfers charged in Counts 16-32 involved the “gross proceeds” of the fraud
offenses charged in Counts 2-15, Moro’s sufficiency challenge fails.
D. Sentencing
Finally, we address Moro’s argument that the District Court erred during
sentencing by treating Moro’s military service as an aggravating factor. It is clear from
the record that the District Court did not treat Moro’s military service as an aggravating
factor at sentencing. Therefore, we conclude that the District Court did not err, and
accordingly, we will affirm Moro’s sentence.
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III. Conclusion
For the reasons stated above, we will affirm the judgment of the District Court.
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