Opinion
No. 02 CR 86
September 15, 2003
MEMORANDUM OPINION AND ORDER
After further review of the authorities, especially U.S. v. Mankarious, 151 F.3d 694, 701-02 (7th Cir. 1998), the court concludes that its order of June 12, 2003, dismissing Counts 3 through 15 of the indictment, was in error. We held that it was necessary for each of the money laundering counts to allege a specific use of the mails or wires. On the contrary, it is only necessary that a particular count allege that the proceeds were derived from activity which violated the mail or wire fraud statutes. In this case, the allegation in each of counts 3 through 15 that the proceeds were derived from "mail and wire fraud on ABI/Acordia" is a sufficient allegation of the predicate mail or wire fraud violation.
This does not mean that the government is relieved of proving that the mails or wires were in fact used in furtherance of the scheme, nor do we understand the government to be contending that it does. Although the laundered funds described in a particular count need not be shown to have come from any specific transaction in which the mails or wires were used, the proof must nonetheless show that the mails or wires were used in furtherance of the scheme from which those proceeds were derived. Thus, if the government failed to offer evidence from which the jury could find beyond a reasonable doubt that there was some use of the mails or wires that furthered the scheme, the defendant would be entitled to a judgment of acquittal on the money laundering counts. The anomaly is that, although this proof must be made, there will be no way of knowing what use of the mails or wires the jury found to have been proved in the event of a conviction. Conceivably the jury could find only one mailing or wire and could use that as the predicate offense for all of the money laundering counts.
It will be important to cover this matter in jury instructions, stating what the jury must find and perhaps referring to the evidence the government relies upon as establishing the necessary use of the mails or wires.
The kind of evidence that a jury can find sufficient for this purpose is indicated in Mankarious. where the defendants were convicted of laundering proceeds of a scheme that involved submission of fraudulent invoices:
In this case, the jury heard testimony from Mary Sikes-Brown, a UPEC employee who said that after she typed invoices she routinely mailed them. She specifically testified to mailing the invoice for work on the gun safe dollies. The government also points to testimony that Delta regularly date-stamped incoming mail and that many of the invoices in question bear date stamps. The government also notes the timing of date stamps on many invoices-often several days after the invoice date. These facts constitute sufficient circumstantial evidence for the jury to infer that UPEC mailed a file copy of each invoice to Delta. In other words, the jury could have inferred that the laundered funds came from a fraudulent scheme and that the use of the mails furthered that scheme. Therefore, we believe that the jury heard sufficient circumstantial evidence to infer that each of the checks cashed and deposited by the defendants constituted the proceeds of mail fraud.Mankarious, 151 F.3d at 702-03.
The defendant Boscarino argues that he should know in advance of trial what proof of use of mails or wires the government will offer, and we agree. The information need not be provided in the indictment itself, but, as a matter of fairness — as well as to save time at trial for everyone concerned — it should be provided in pretrial discovery. But the government states that it has done exactly that, and that the defendant was given the mailings and wirings as part of Local Rule 16.1 discovery on February 1, 2003. (Government's Reply to Defendant Boscarino's Response to Government's Motion to Reconsider at 5.) Assuming this is true, the defendant should be able to prepare for trial.
Conclusion
The government's motion to reconsider the order of June 12, 2003 dismissing Counts 3 through 15 of the indictment is granted, and Counts 3 through 15 are reinstated.