Argued on May 15, 2013
On Appeal from the United States District Court for the District of New Jersey (D.C. No. 3-11-cr-00210-001) District Judge: Honorable Joel A. Pisano.
Harvey Weissbard, Esquire (Argued) Genova Burns Giantomasi & Webster Counsel for Appellant.
Mark E. Coyne, Esquire David W. Feder, Esquire (Argued) Caroline A. Sadlowski, Esquire Office of United States Attorney Counsel for Appellee.
Before: SLOVITER, FUENTES and ROTH, Circuit Judges.
ROTH, Circuit Judge
Mordchai Fish appeals the District Court's July 5, 2012, judgment of sentence. He argues that the District Court erred by imposing a two-level enhancement for sophisticated money laundering under U.S.S.G. § 2S1.1(b)(3). For the reasons that follow, we will affirm the judgment of sentence.
Fish, a rabbi in Brooklyn, New York, was a target of a large investigation into public corruption and money laundering in Brooklyn and New Jersey. The investigation began when Solomon Dwek, a cooperating witness who was charged with bank fraud in 2006, informed law enforcement that several rabbis, including Fish, were laundering money through tax-exempt Jewish charities known as "gemachs."
Dwek, under law enforcement supervision, approached Fish about laundering what Dwek claimed were the proceeds of illegal endeavors, namely a bank fraud scheme and an operation that produced and sold counterfeit handbags. The "proceeds" were in fact funds provided by the government. Between May 2008 and July 2009, Fish participated in approximately twelve money laundering transactions involving over $900, 000. To execute these transactions, Dwek would deliver to Fish bank checks made out to gemachs and rabbis, and Dwek would receive cash in exchange, less a commission (usually 10% of the check value). These check-for-cash exchanges took place at various locations, including a residence, a pizzeria, a bakery, a grocery store, a mikva (ceremonial bath house), and an office where Fish's contacts had a safe, cash-counting machines, and checks and currencies from different countries. The exchanges were at times scheduled only hours in advance and often involved numerous couriers.
Fish made efforts to conceal the money laundering operations by giving Dwek SIM cards for his cell phone. He warned Dwek to sweep his car and phones for detection devices and to use code when speaking to associates about transactions. In recordings made by Dwek, Fish stated that he had a number of money laundering connections, could launder money through several different rabbis, knew how much cash certain individuals had available at specified times, and had met with the "main guy" running one of the networks. Fish and another participant in the scheme, Levi Deutsch, said that the cash came from the diamond and jewelry business, and Deutsch indicated that the operation extended to Israel and Switzerland.
On April 8, 2011, pursuant to a plea agreement, Fish pled guilty to a one-count Information charging him with conspiracy to commit money laundering, in violation of 18 U.S.C. § 1956(h). The parties agreed that the total offense level applicable to Fish under the U.S. Sentencing Guidelines would be at least 21. The government reserved the right to argue for a two-level enhancement under U.S.S.G. § 2S1.1(b)(3) for sophisticated money laundering, and Fish reserved the right to argue against this enhancement.
In the presentence report, the Probation Department recommended that Fish should receive the two-level enhancement under U.S.S.G. § 2S1.1(b)(3) and calculated a total offense level of 23. At sentencing on July 3, 2012, the District Court reviewed the sentencing submissions, including a video of meetings between Fish, Dwek, and others, and applied the two-level enhancement under U.S.S.G. § 2S1.1(b)(3). The offense level of 23 resulted in an advisory ...