United States v. Albion Norman Jr.

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
_____________
No. 97-3551EM
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United States of America, *
*
Appellee, *
* On Appeal from the
v. * United States District Court
* for the Eastern District
* of Missouri.
Albion Norman, *
*
Appellant. *
___________
Submitted: April 14, 1998
Filed: April 23, 1998
___________
Before RICHARD S. ARNOLD,1 Chief Judge, LAY and LOKEN, Circuit Judges.
___________
RICHARD S. ARNOLD, Chief Judge.
Dr. Albion A. Norman, Jr., was convicted after a jury trial of two counts of wire
fraud, in violation of 18 U.S.C. § 1343 (1994), two counts of transportation of stolen
property, in violation of 18 U.S.C. § 2314 (1994), four counts of engaging in monetary
transactions derived from unlawful activity, in violation of 18 U.S.C. §
1The Hon. Richard S. Arnold stepped down as Chief Judge of the United States
Court of Appeals for the Eighth Circuit at the close of business on April 17, 1998. He
has been succeeded by the Hon. Pasco M. Bowman II.
1957 (1994), and seventeen counts of money laundering, in violation of 18 U.S.C.
§ 1956(a)(1)(B)(i) (1994). The District Court2 sentenced Norman to 109 months (12
years and one month) in prison, and he appeals. Norman contends, among other things,
that he cannot be found guilty of money laundering because he used his own name and
made no effort to conceal his identity in the transactions that are the basis of the money-
laundering charges. We reject this contention, as well as other arguments made on
appeal, and affirm the convictions and sentence.
Norman's first argument has to do with count VIII, one of the counts charging that
he engaged in monetary transactions derived from unlawful activity. This case revolves
around funds on deposit in a Florida bank, amounting initially to some $9,225,000.00.
It is sufficient for present purposes to know that the evidence tended to show that the
money belonged not to Norman but to the Ferncliff Cemetery Association of Hartsdale,
New York, and that Norman knew this. (We recount the facts in the light most
favorable to the jury's verdict.) Without the authority or knowledge of the true owner,
Norman caused or attempted to cause certain funds, amounting ultimately to the entire
$9,225,000.00, to be transferred into other accounts under his control.
The particular transaction charged in count VIII was the attempt by Norman to
transfer the then-remaining balance in the account, amounting to $7,980,993.78. If the
transfer had taken place, the money would have gone to an account in another bank in
the name of entities controlled by Norman and his associates. Norman's defense is that
the bank in which the funds were originally deposited had asked that this transfer be
made. The bank wanted the account closed. Defendant argues that he cannot be guilty
of a crime for following the directions of the bank. We disagree. The particular motive
or cause that led Norman to attempt the transfer is not material.
2
The Hon. Carol E. Jackson, United States District Judge for the Eastern District
of Missouri.
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The point is that the money did not belong to Norman, and that he had no authority to
direct that it be transferred to an account under his own control.
Norman's next argument has to do with the seventeen money-laundering counts.
In order to place the argument in an understandable context, we state the facts of one
of these counts. Using part of the money that had earlier been transferred from the
account in the Florida bank, Norman bought a blue 1993 Range Rover for $47,790.00.
He paid for the car with a check drawn on an account of a business he controlled, and
the car was titled in the name of the same business. Norman made no attempt to
conceal from the seller of the car his own identity, or the fact that he owned the business
that was to become the owner of the car. This absence of concealment, he now argues,
prevents him from being convicted of money laundering.
The relevant statute, 18 U.S.C. § 1956(a)(1)(B)(i), provides as follows:
(a)(1) Whoever, knowing that the property involved in a
financial transaction represents the proceeds of some form of
unlawful activity, conducts or attempts to conduct such a
financial transaction which in fact involves the proceeds of
specified unlawful activity -
* * *
(B) knowing that the transaction is designed
in whole or in part -
(i) to conceal or disguise the nature, the
location, the source, the ownership, or
the control of the proceeds of specified
unlawful activity; . . .
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The statute does not require that there be any intention or design to conceal the identity
of the person dealing with the property. It requires, instead, that a defendant know 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. There is no contention that the money used to buy the car was not the proceeds
of specified unlawful activity. The contention is, rather, that there was no proof that
Norman intended to disguise the nature, location, source, ownership, or control of the
money. We disagree. The point is not whether the seller of the car is deceived as to
who Norman was, but rather that by changing the proceeds of unlawful activity from the
form of money (or, more properly, a bank account) -- through the use of other,
undisclosed business accounts -- into the form of an automobile, Norman made it more
difficult for the true owner of the money to trace what had happened to it.
Under our cases, this is sufficient to make out a violation of the statute. See
United States v. Nattier, 127 F.3d 655 (8th Cir. 1997), cert. denied, 66 U.S.L. Week
3655 (U.S. April 6, 1998) (No. 97-8170), where we said:
Second, Nattier and Coley [the defendants] contend that their
actions did not demonstrate an intent to conceal their identity
and relationship to the funds because they were readily
identifiable as officers of the corporation through which they
were spending the funds. Regardless of whether Nattier and
Coley attempted to conceal their ownership of or relationship
to the funds, their intent to conceal the nature or source of
the funds within the meaning of section 1956 (a)(1)(B)(i) was
evident. . . .
[E]ven though the defendants did not use false names in an
attempt to conceal their identity, they used their legitimate
real estate business and Nattier's father in an attempt to
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conceal the source of the funds within the meaning of subsection
(a)(1)(B)(i). . . .
In the present case . . . the defendants first deposited the
embezzled Mercantile Bank's checks in IRI's business bank
account and then invested the illegal proceeds in property by
drawing checks on IRI's account, thus representing the illegal
proceeds as funds of their legitimate business. Additionally,
Nattier transferred some of the illegal funds from IRI's
account to the Texas bank account and represented the funds
as money borrowed from his father.
Id. at 659.
Norman relies on United States v. Rockelman, 49 F.3d 418 (8th Cir. 1995), but
we believe the case is distinguishable. There, the defendant purchased a cabin with
cash derived from his drug sales, in person. In contrast, the proceeds of Norman's
unlawful activity were held and spent in ways that evidenced the necessary intent to
conceal. The money was deposited into three bank accounts held in two names, neither
of which was on the Florida bank account known to Ferncliff Cemetery Association.
The subsequent purchases were made by checks. They involved automobiles and other
goods that were not matters of public record, as the real estate transaction in Rockelman
was. Thus, the facts of this case present neither the "straightforward real estate
transaction," nor the "conspicuous connection" between the defendant and his
purchases, that characterized Rockelman. Id. at 422. Rather, there was sufficient
evidence for the jury to find that Norman "intended (at least in part) to disguise the
relationship of the item purchased with the person providing the proceeds and that the
proceeds were obtained from illegal activities," thus violating the statute. Id. (citation
omitted).
Finally, Norman challenges the sentence that was imposed on him. Because all
twenty-five counts on which he was convicted related to the same basic series of
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transactions, the setting up of the bank account and Norman's diversion or attempted
diversion of the contents thereof, the District Court grouped all of the counts for
purposes of determining the appropriate offense level under the Sentencing Guidelines.
There is no contention that grouping was improper. It is agreed, in addition, that the
proper procedure when counts are grouped is to use the offense level of the count or
counts that carry the most severe sentence. Here, those counts were the money-
laundering charges. The District Court enhanced the offense level on these counts by
two levels for obstruction of justice under U.S.S.G. § 3C1.1. This action was based
upon the Court's finding, which is not contested on appeal, that Norman perjured
himself during his testimony at trial. Norman now argues that this procedure was
improper, and that the two-level enhancement should not have been applied, because
his perjury at trial related only to the wire-fraud and interstate-transportation counts, and
had nothing to do with the laundering counts.
We affirm the District Court's obstruction-of-justice enhancement. Contrary to
Norman's assertions, his perjury was relevant to the money-laundering counts. Title 18
U.S.C. § 1956(a)(1)(B)(i) requires the defendant to know that the financial transaction
at issue involves the proceeds of unlawful activity. The Court found that Norman lied
about his understanding of the ownership of the money in the Florida bank account,
among other things. This information was therefore relevant to the jury's determination
of whether Norman was guilty of money-laundering, and Norman's perjury was an
obstruction of justice "during the . . . prosecution . . . of the instant offense." U.S.S.G.
§ 3C1.1 (1997).
Affirmed.
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A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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