The opinion of the court was delivered by: ROBRENO
A jury found Ester Carter guilty of one count of conspiracy to launder proceeds of a specified unlawful activity, 18 U.S.C. § 1956(h), and two counts of money laundering, 18 U.S.C. § 1956(a)(3)(B). The conviction was the result of Mr. Carter's agreement to lease an office in his Cherry Hill, New Jersey recording studio to one Louis A. Richard, who was in reality Internal Revenue Service (IRS) Special Agent Louis Oubre posing as a drug dealer, for the purpose of laundering money which was represented to Mr. Carter to be the proceeds of drug transactions.
Mr. Carter was introduced to Agent Oubre by Angela Nolan-Cooper, a Philadelphia attorney who represented Mr. Carter's businesses. Ms. Nolan-Cooper had developed an elaborate plan to launder Agent Oubre's purported drug proceeds by hiding some of the money in Bahamian banks and running some of the money through sham businesses. To effectuate the latter plan, Ms. Nolan-Cooper set up LAR Productions, Inc. for Agent Oubre. She told Agent Oubre that to make the business look legitimate he would have to rent office space.
Ms. Nolan-Cooper introduced Agent Oubre to Mr. Carter by phone on March 11, 1994 to discuss Agent Oubre's rental of office space in Mr. Carter's recording studio. The two men met on May 10, 1994 at Mr. Carter's studio, where Agent Oubre expressly told Mr. Carter that his money came from drugs and that Ms. Nolan-Cooper was helping him make it look legitimate. On September 29, 1994, Agent Oubre paid Mr. Carter $ 6,615 for six months rent and one month security deposit for an office at the recording studio. On December 19, 1994, a lease was drawn up by Ms. Nolan-Cooper which was backdated to July 1, 1994. Mr. Carter and Agent Oubre both signed the backdated lease. On February 1, 1995, Agent Oubre paid Mr. Carter $ 955 for the January rent. Agent Oubre never moved into the office space at the studio.
Both of Agent Oubre's payments were made by checks payable to Mr. Carter and were drawn on the account of LAR Productions, Inc. and signed by Agent Oubre as Louis A. Richard. Mr. Carter endorsed these checks with his own name and deposited the funds into his personal checking account.
Ester Carter now moves for a judgment of acquittal pursuant to Federal Rule of Criminal Procedure 29. He contends that he is entitled to a judgment of acquittal based on: 1) the Court's failure to dismiss the indictment for the alleged outrageous government conduct of interfering with the attorney/client relationship between Ester Carter and co-defendant Angela Nolan-Cooper; 2) the Court's failure to preclude the introduction of taped conversations between Angela Nolan-Cooper and Agent Louis Oubre as hearsay not within an exception; 3) the Court's failure to instruct the jury that the mere receipt of property represented to be drug proceeds is insufficient for a conviction under 18 U.S.C. § 1956(a)(3)(B); 4) the assertion that the evidence was insufficient as a matter of law to find that the defendant engaged in a transaction with the intent to conceal or disguise the nature, location, source, ownership or control of drug proceeds; and 5) the Court's limiting of the defendant's cross-examination of Agent Oubre.
Federal Rule of Criminal Procedure 29 provides that the trial court "shall order the entry of judgment of acquittal . . . if the evidence is insufficient to sustain a conviction . . . ." Fed. R. Crim. P. 29(a). A motion for judgment of acquittal may be made after the jury returns a verdict of guilty. Fed. R. Crim. P. 29(c). In determining a post-verdict motion for a judgment of acquittal the Court "must view the evidence in the light most favorable to the jury verdict and presume that the jury properly evaluated credibility of witnesses, found the facts, and drew rational inferences." United States v. Iafelice, 978 F.2d 92, 94 (3d Cir. 1992). The Supreme Court has held that "the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319, 61 L. Ed. 2d 560, 99 S. Ct. 2781 (1979).
"The sole foundation upon which a judgment of acquittal should be based is a successful challenge to the sufficiency of the Government's evidence." United States v. Frumento, 426 F. Supp. 797, 802 n.5 (E.D. Pa. 1976) (finding that defendants' contention that the court erred in determining a government agency could be an "enterprise" was not a proper ground for a judgment of acquittal under Rule 29), aff'd, 563 F.2d 1083 (3d Cir. 1977), cert. denied, 434 U.S. 1072, 55 L. Ed. 2d 775, 98 S. Ct. 1256 (1978). Accord United States v. Rivers, 406 F. Supp. 709, 711 n.1 (E.D. Pa. 1975) (finding that defendant's arguments that he was denied due process by the government's failure to produce its informant and the failure of the court to give a "missing witness" charge to the jury were not proper grounds for a judgment of acquittal under Rule 29), aff'd, 544 F.2d 513 (3d Cir. 1976). See also United States v. Ellis, 493 F. Supp. 1092, 1098 (M.D. Tenn. 1979) (finding that errata in court's instructions to the jury was not a cognizable ground for a post-trial motion for a judgment of acquittal), aff'd, 617 F.2d 604 (6th Cir.), cert. denied, 449 U.S. 840, 66 L. Ed. 2d 48, 101 S. Ct. 119 (1980); 2 Charles A. Wright, Federal Practice and Procedure: Criminal § 466, at 654 (2d ed. 1982) ("There is only one ground for a motion for judgment of acquittal. This is that 'the evidence is insufficient to sustain a conviction' of one or more of the offenses charged in the indictment or information.").
Three of the grounds advanced by Mr. Carter clearly are not properly considered for a Rule 29 motion for judgment of acquittal because they challenge the Court's evidentiary rulings and jury instructions instead of the sufficiency of the evidence. A Rule 33 motion for a new trial is the more appropriate method for addressing the allegedly erroneous evidentiary rulings and improper jury instructions. Rule 33 provides, in part, that "the court on motion of a defendant may grant a new trial to that defendant if required in the interest of justice." Fed. R. Crim. P. 33. A leading commentator notes that "any error of sufficient magnitude to require a reversal on appeal is an adequate ground for granting a new trial." 3 Charles A. Wright, Federal Practice and Procedure: Criminal, § 556, at 306 (2d ed. 1982). The Court thus interprets these claims by the defendant of error by the Court as a motion for a new trial,
applies the appropriate standard and concludes that there was no error that would require a reversal on appeal.
Nor is the Court's failure to dismiss the indictment for alleged outrageous government conduct a proper ground for a judgment of acquittal either. Rather claims of outrageous government conduct during the course of the government's investigation of the crime should be raised in a challenge to the indictment. See Fed. R. Crim. P. 12(b). See, e.g., United States v. Voigt, 89 F.3d 1050, 1060 & n.2, 1063 (3d Cir. 1996) (the defendant filed an unsuccessful pre-trial motion to dismiss the indictment for outrageous government conduct, the defendant's post-trial motions for judgment of acquittal on two counts were granted based only the insufficiency of the evidence). In this case, the Court already has denied the defendant's pre-trial motion to dismiss the indictment after extensive briefing on the issue and a lengthy and thorough hearing. To the extent that the matter was adjudicated before the trial it would ordinarily not be the subject of a post-trial motion. But see United States v. Klosterman, 248 F.2d 191 (3d Cir. 1957) (reversing convictions and remanding case with directions to enter a judgment of acquittal where the district court erred in failing to find entrapment as a matter of law). Nevertheless, the Court has considered anew the defendant's argument for a judgment of acquittal on this ground, and finds no error.
The only clearly appropriate ground on which Mr. Carter seeks a Rule 29 judgment of acquittal is his challenge to the sufficiency of the evidence against him. The defendant's contention that the evidence was insufficient as a matter of law for the jury to find that the defendant engaged in a transaction with the intent to conceal or disguise the nature, location, source, ownership or control of drug proceeds is his only proper grounds for a judgment of acquittal under Rule 29. The Court, however, finds that a judgment of acquittal is not warranted on that ground either, for the reasons that immediately follow.
A. The Sufficiency of the Evidence that the Defendant Engaged in a Financial Transaction with the Intent to Conceal.
Defendant Carter seeks a judgment of acquittal based on his assertion that the evidence was insufficient as a matter of law to sustain a finding that the defendant engaged in a financial transaction with the intent to conceal or disguise the nature, location, source, ownership, or control of property believed to be the proceeds of the manufacture, importation, sale, or distribution of controlled substances. See 18 U.S.C. § 1956(a)(3)(B). Mr. Carter states that his actions of accepting two checks for rent that were made payable to him personally, endorsed by him, and deposited into his personal checking account did not evidence an intent on his part to conceal those funds. Mr. Carter bolsters his argument by noting that the checks were signed by Agent Oubre (as Louis A. Richard) and drawn on an account in the name of LAR Productions, Inc. which was opened by one Louis A. Richard. Mr. Carter's proposed conclusion is that the paper trial created was so open and notorious that it refuted any finding by the jury that he had an intent to conceal.
In a prosecution for money laundering, "the government must prove that [the defendant] had the specific intent to conceal or disguise the nature, location, source, ownership, or control of property he believed to be the proceeds of unlawful activity." United States v. Kaufmann, 985 F.2d 884, 896 (7th Cir. 1993). At trial, the government produced tape recordings of the conversations between Agent Oubre and Mr. Carter. At their first face to face meeting, Agent Oubre told Mr. Carter that he had a lot of money, that the money came from drugs and that he wanted to make it look legal:
L.R.: . . . And you know, like I was telling you, right now I'm not really interested in so much in making money. You know . . .
L.R.: . . . not right now.
L.R.: I got enough of that.
L.R.: You know, but its getting it to where I can use it.
E.C.: If . . . if you're discussing money, you want to invest, huh?
L.R.: Well I don't know if she told you where my money comes from?
E.C.: Well, that's why I said I didn't know but I figured . . .
E.C.: . . . what you was talking about.
L.R.: I'm trying to get . . . 'cause right now I can't use it.
L.R.: You know? I can't use it, 'cause . . .
L.R.: . . . as soon as I start using it, people are gonna start asking questions . . .
Transcript of Meeting of May 10, 1994, at 146-48. Mr. Carter then told Agent Oubre that "this here is a good place to start . . . you go from there, and it's legal." Id. at 151.
Mr. Carter also encouraged Agent Oubre to put on entertainment which they could run through his company or Agent Oubre's company but cautioned him to lay low for a while:
E.C.: Something good come through . . .
E.C.: . . . like a act or something?
E.C.: I can um . . . come over, if I think it's a worthwhile investment, and we can run it through my company.
E.C.: You . . . let's even run it through your ...