Opinion
20-P-195
04-29-2021
COMMONWEALTH v. Richard F. SCISM.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
After a jury trial in the Superior Court, the defendant was convicted of conspiracy to commit money laundering or receive stolen property. See G. L. c. 274, § 7. Because we conclude that the evidence of the defendant's intent to commit the object crimes was sufficient to sustain his conviction, we affirm.
Two additional indictments, charging the defendant with the object crimes, were dismissed prior to trial.
Facts. Although we reserve substantial detail for later discussion, to put our discussion into context we summarize a portion of the evidence here, viewing it the light most favorable to the Commonwealth. See Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979). On October 14, 2016, the defendant opened a business account (1225 account) held by himself and his business entity, Stonington Point, Inc. (Stonington Point), at a Key Bank branch in Saugerties, New York. Other than making the required opening deposit of $250, the defendant used the account very little for the next six weeks; between the date on which the accounts were opened and November 23, 2016, the defendant made only three additional deposits into the account, none of them larger than $250.
Meanwhile, on November 22, 2016, a Malden law firm representing the buyer of a condominium deposited the sale proceeds from the closing in its firm account at Century Bank, issuing the seller a check for her portion of the money and asking that the seller hold the check until the deed could be recorded. The following day, November 23, 2016, before the check was cashed, the unsuspecting law firm received fraudulent instructions from someone purporting to be the seller, informing the law firm that the seller had destroyed the check she was holding and advising them that she wished to have the sale proceeds wired to her. Based on these instructions, the law firm wired $343,881.18 into the 1225 account at Key Bank.
The identity of the person who provided the fraudulent instructions was never determined.
On the day that the stolen funds arrived in the 1225 account, the defendant opened three more accounts for Stonington Point with Key Bank. Although the defendant later told the police that he "let the money sit for over a week" before moving it, he did not do so. In fact, on the very day that the money was wired into the 1225 account, the defendant transferred $300,000 of the funds from the 1225 account into one of the new accounts (the 1266 account). Two days later, the defendant wired $250,000 from the 1266 account to a JP Morgan Chase account in Turkey; within the week, the defendant also made multiple cash withdrawals of $10,000 each, at least some of which remained unrecovered at the time of trial, and which the jury could have concluded that the defendant kept. By the end of November, 2016, the defendant had transferred or withdrawn nearly all of the stolen funds.
Discussion. We review the denial of a motion for a required finding of not guilty by asking whether any rational fact finder, when viewing the evidence in the light most favorable to the Commonwealth, could find all material elements of the offense beyond a reasonable doubt. See Latimore, 378 Mass. at 677. "The elements of conspiracy are ‘a combination of two or more persons, by some concerted action, to accomplish some criminal or unlawful purpose.’ " Commonwealth v. Nee, 458 Mass. 174, 180 (2010), quoting Commonwealth v. Benson, 389 Mass. 473, 479, cert. denied, 464 U.S. 915 (1983). See Commonwealth v. Frazier, 410 Mass. 235, 245 (1991), quoting Commonwealth v. Cantres, 405 Mass. 238, 244 (1989) (Commonwealth "must prove that the defendant combined with another ‘with the intention to [commit the object crime]’ "). Here, the unlawful purposes that were charged were money laundering and receiving stolen property. The defendant challenges only the sufficiency of the evidence of the defendant's intent to commit the object crimes, so we focus our discussion on that element.
As relevant here, to prove a charge of money laundering, the Commonwealth was required to prove (1) that the defendant engaged in a transaction involving money known to have been derived from criminal activity, and (2) that he did so either with the intent to promote, carry on, or facilitate criminal activity (promotional money laundering), or that he did so knowing that the transaction was at least in part designed to conceal the "nature, location, source, ownership[,] or control" of property derived from criminal activity (concealment money laundering). See G. L. c. 267A, § 2 (2). See also Commonwealth v. Braune, 481 Mass. 304, 307 n.8 (2019) (distinguishing forms of money laundering encompassed by G. L. c. 276A, § 2 ).
To prove the crime of receiving stolen property over $250, the Commonwealth must prove that (1) the property in question was stolen; (2) the defendant knew that the property had been stolen; (3) that the defendant knowingly possessed the stolen property; (4) the value of the property exceeded $250. See G. L. c. 266, § 60 ; Commonwealth v. Namey, 67 Mass. App. Ct. 94, 97 (2006).
The Commonwealth is not required to prove that the defendant committed the object crimes, nor to prove any "intent" other than as an element of the conspiracy charge. See Nee, 458 Mass. at 180-181 ; Cantres, 405 Mass. at 243-244 (proof that defendant committed object crime not required to prove defendant conspired to commit it).
To prove intent, the Commonwealth may, and "typically" must, rely on circumstantial evidence. See Nee, 458 Mass. at 181. Here, the defendant does not dispute that the trial evidence established that the $383,881.18 stolen from the law firm was transferred into the 1225 account, and that he agreed both to accept a large transfer and to disburse it according to the instructions of others. He argues, however, that the evidence establishes nothing more than that he was a gullible, but innocent, pawn in someone else's scheme. We are not persuaded.
After the theft of the $343,881.18 was discovered, the defendant was interviewed by a Malden police detective. The jury saw and heard a video recording of that interview. In it, the defendant first explained the November 23, 2016, transfer as a loan made to him by Hamidul Haque, a "financier" whom he had never met, through a lawyer, "Barrister Farouk Idris," whom, likewise, he had never met. In the course of the same interview, however, the defendant also inconsistently described the approximately $343,000 transferred into the 1225 account as "custodial funds" that "weren't [his] money," and told the detective that he had transferred portions of the $343,881.18 to third parties at Idris's direction. Later in the interview, the defendant changed his explanation yet again, telling the detective that some of the payments were made to cover working expenses for a different client, located in England.
The defendant told the detective that in exchange for an unspecified past service done by the defendant for a wealthy client of Idris's, the client had decided to give the defendant $12 million of the client's inheritance, and in anticipation of receipt of the $12 million, the defendant had arranged through Idris to borrow $550,000 from Haque to enable the defendant to pay taxes and fees on the larger sum. The defendant did not identify the client who was leaving him this inheritance, and could not say how he had "assisted" this benefactor. He also maintained that he believed the November 23, 2016, transfer to have been legitimate, notwithstanding that the funds came not from the Hang Seng Bank as he expected, but from Century Bank, and that the wire amount was approximately $343,000, and not the promised sum of $550,000.
The defendant's explanations of the manner in which the funds were distributed might have raised an eyebrow: in addition to telling the detective that he had intentionally structured some of the transfers to avoid possible fraud investigation, the defendant told the detective that these transfers and others, including separate transfers of $50,000 and $250,000, were made at Idris's instruction to several named "agents" for the Hang Seng Bank, none of whom the defendant had met.
The jury could have rejected these shifting explanations for the sudden appearance of the stolen funds in the defendant's account, concluding instead that the timing of the transaction suggested "concerted action converging to a definite end." Commonwealth v. McLaughlin, 431 Mass. 241, 247 (2000), quoting Commonwealth v. Beal, 314 Mass. 210, 224 (1943). Had the jury discredited the defendant's story, as it appears that they did, they could also have inferred that the defendant had lied to the detective about how he came into possession of the $343,881.18 transfer, and the reasons for its unusual disbursement, in an attempt to conceal his knowledge that the transfers were part of an illicit scheme and his agreement to participate in it. See Commonwealth v. Cassidy, 470 Mass. 201, 217 (2014) (false statements to police among categories of evidence "generally ... admissible as some evidence of consciousness of guilt").
The jury could have drawn a similar inference from the evidence that at least some of the records to which the defendant referred during the interview were, in the detective's opinion, "fake."
Additionally, the credibility of the defendant's claim that Idris and Haque had entrusted him with millions of dollars was undermined by evidence of the defendant's interviews with the detective and other investigators. The defendant told the detective that he had no formal training in asset management, and that his experience was exclusively gained "through the school of hard knocks." When speaking with a forensic accountant as part of the investigation into the stolen funds, he said that "he had not [ever] completed a[n asset management] transaction." He did not answer questions about how his asset management enterprise worked, or about the kinds of assets he managed, and was unable to answer questions about the basis of his accounting system, despite the need to provide such information when filing business taxes.
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The defendant argues, in essence, that notwithstanding this evidence, the jury could have concluded, as investigators initially did, that the defendant was an unwitting dupe, lacking the intent to participate in any illicit activity. That, however, is not the question before us. The fact that there was evidence at trial which, if credited by the jury, could have lent support to this theory does not mean that the jury was unwarranted in rejecting it; "[t]he proper inquiry is ‘whether the evidence would permit a jury to find guilt, not whether the evidence requires such a finding.’ " Commonwealth v. Platt, 440 Mass. 396, 401 (2003), quoting Commonwealth v. Lydon, 413 Mass. 309, 312 (1992). The Latimore standard does not require us to rule out every theory of innocence in order to find the evidence sufficient. See Commonwealth v. Merola, 405 Mass. 529, 533 (1989). To the extent that the evidence as we have summarized it to this point "tend[ed] equally to sustain either of two inconsistent propositions," Commonwealth v. Deane, 458 Mass. 43, 52 (2010), quoting Berry v. Commonwealth, 393 Mass. 793, 796 (1985), we conclude that the balance was tipped in favor of sufficiency by the evidence that the defendant retained a portion of the stolen funds, and of his having been warned about the impropriety of his involvement in prior similar schemes.
In 2014, the defendant was questioned by Internal Revenue Service investigators after "hundreds of thousands of dollars" in fraudulently obtained tax refunds were deposited into his account. The defendant told the investigators that he did not know the client who made the deposit and that he had noticed that the deposit referred to the funds as a tax refund -- a source inconsistent with the defendant's explanation that the client was anticipating a deposit of payment for services he had rendered to the government. Additionally, the defendant told the investigator that he had received $170,000 from "Jude Estrada," a wealthy overseas client whom he had never met. The investigators told the defendant "that what he was doing was money laundering." The investigators warned the defendant that his conduct was not only "inherently risky toward fraud" and that "a good rule of thumb would be to not accept any money from any persons you don't meet in person," but specifically that "what he was doing was money laundering (emphasis added)."
In 2015, the defendant was again investigated, this time by TD Bank in connection with a $113,000 wire transfer into the defendant's business account. Initially, the defendant told bank officials that he had no knowledge of where the wire had come from, or why it was sent to him; he later indicated that he was expecting a transfer through the Shin Fang Company from a Nigerian attorney, Emmanuel Shaw, with whom he was performing asset management work. The bank rejected the wire. The jury was entitled to consider this evidence as it bore on the defendant's intent to participate in the conspiracy. See Commonwealth v. Gollman, 436 Mass. 111, 114 (2002) (evidence of defendant's prior criminal conduct, similar to crimes at issue, "highly probative of his intent"). There was no error in the jury's returning a verdict of guilty on that charge.
Conclusion. The evidence of the defendant's intent to participate in a conspiracy was sufficient as to either object crime, receiving stolen property with a value exceeding $250 or money laundering.
Judgment affirmed.