The opinion of the court was delivered by: Alvin Hellerstein, District Judge
OPINION & ORDER DENYING DEFENDANT'S MOTION TO
DISMISS THE INDICTMENT
Defendant Samuel Ness was convicted, on May 15, 2003, of conspiring to launder money in violation of 18 U.S.C. § 1957(a), 1956(a)(1)(B)(i), and 1956(a)(2)(B)(i), and of receiving at least $50,000 in cash narcotics proceeds for shipment abroad in violation of 18 U.S.C. § 1956(a)(1)(B)(i) and 2. He now moves for a judgment of acquittal pursuant to Federal Rule of Criminal Procedure 29, arguing that (1) the Government offered proof of multiple, separate conspiracies rather than the single conspiracy alleged in the Indictment, a material variance that caused him substantial prejudice, and (2) the Government failed to present sufficient evidence to support the convictions because it did not demonstrate beyond a reasonable doubt that he transported money in connection with an offense involving or affecting interstate or foreign commerce, or concealed and disguised the nature and source of the money he transported.
The evidence at trial showed that Samuel Ness conspired with his business partner, Robert David, and at least two other associates, to transport money for several Ecstasy-dealers, and that he actually transported these illegally gotten funds across the country and to Belgium, Canada, and Israel. While members of the conspiracy may have changed, the core of [ Page 2]
the conspiracy (Ness, David, and the other associates) remained the same; this single group embraced all of the drug enterprises with which they dealt, making it possible for them to pay their suppliers abroad and continue to import Ecstasy into the country. The Ecstasy-dealers with whom Ness dealt depended on Ness and his associates to keep their illegal enterprises going, and they and Ness and his associates shared a common purpose: to transport the proceeds of their Ecstasy distributions out of the country in order to pay the suppliers abroad, thus completing the supply and distribution chain to enable ever-more imports of Ecstasy into, and distribution within, the United States. The jury was properly instructed, without objection by defendant (and as set out in full in the footnotes to this opinion), as to the elements of the single conspiracy alleged in the Indictment, and fairly and properly found Ness guilty of both counts, of the conspiracy and of the money laundering counts. For the reasons discussed in this Opinion, Ness' motion is denied.
I. The Facts Adduced at Trial
By superseding indictment S2 01 Cr. 699, Samuel Ness, also known as "Shmuel," "Shmulik," and "David," was charged with conspiring to launder the proceeds of narcotics trafficking, and with substantive money laundering, specifically, receiving, in February 2001, approximately $50,000 in cash narcotics trafficking proceeds for shipment abroad. Count One of the Indictment — the conspiracy charge — alleged five overt acts, including receiving $315,000 in cash narcotics proceeds in Brooklyn, New York in about June 2000; receiving more than $850,000 in cash narcotics proceeds in July 2000; meeting with a co-conspirator at a hotel in Manhattan in February 2001; and receiving approximately $100,000 in cash narcotics proceeds at 580 Fifth Avenue, in Manhattan, in the Spring of 2001. As the facts showed at trial, the narcotics traffickers who brought Ness their ill-gotten gains in each of these incidents did not all [ Page 3]
work together, and did not necessarily know each other. However, they all brought their proceeds to Ness for one reason: because they each knew that he and his associates would take the illegally gotten funds and transport them abroad.
Five Ecstasy traffickers, Timothy Malinowski, Guy Madmon, Haim Abikzer, Christopher Vidal and Stanley Vazquez, testified at Ness' trial, as well as Ness' former business partner and co-conspirator, Robert David. Timothy Malinowski testified that between Fall 2000 and July 2001, he worked for an Ecstasy-distribution ring run by Guy Madmon. Malinowski testified that on approximately three different occasions he picked up cash payments totaling $161,000 from his customers and delivered them to Samuel Ness. On the first of these deliveries, Ness picked up the cash from Guy Madmon at the Millennium Towers Hotel, where Madmon introduced Malinowski to Ness as "Pappy," Malinowski's nickname. On that occasion, Ness left put the money packed in a paper bag inside his jacket, and left. On two other occasions, Malinowski delivered Ecstasy proceeds from Guy Madmon's enterprise to 580 Fifth Avenue, where Ness had an office from which he ran his courier business, Protective Logistics. On both of those occasions, Malinowski called, introduced himself as "Pappy," and, following Ness' instructions, brought the cash to Ness' 580 Fifth Avenue office. Malinowski brought the cash in gift-wrapped packages to avoid suspicion: $85,000 on the first visit and $26,000 on the second visit. An associate of Ness took the cash from Malinowski, counted the cash in a money-counting machine, and Malinowski left without providing identification or receiving a receipt.
Malinowski's boss, Guy Madmon also testified. He stated that between early 2000 and early 2002, he worked for an Amsterdam-based Ecstasy distribution organization headed by Yakov "The Dog" Elchik. Madmon met the couriers whom Elchik sent with Ecstasy pills into the United States, picked up the pills from the couriers, distributed them to customers in [ Page 4]
various parts of the country, and ensured that the proceeds were sent back to Elchik in Amsterdam to pay for the shipments. Madmon testified that Elchik directed him to contact "Shmulik," or Samuel, to transfer the money for him, and provided Madmon with a telephone number at which to reach "Shmulik." "Shmulik," Madmon testified, was Samuel Ness. Madmon testified that he regularly made deliveries of cash to Ness' office at 580 Fifth Avenue, ranging in amounts from $12,000 to $240,000, which Ness sent to Elchik in Amsterdam. Madmon testified that Ness also met him at the Millennium Hilton Hotel and on the street near a bridge in Manhattan to pick up money. Madmon, and an associate of his, Angel Cordero, also made deliveries to Ness at an office in Los Angeles, where Vivian Weider, an associate of Ness, received the cash. Madmon stated that he never received a receipt, was never asked to complete any paperwork, and never learned Ness' last name on any of the occasions that he delivered money to Ness or to Weider. Madmon estimated that in total Ness moved approximately $10 million in cash narcotics proceeds to Elchik.
Haim Abikzer, who, between 2000 and 2001, worked for an Ecstasy distribution organization headed by Jackie Aderi, testified that he arranged for the delivery of drug proceeds to Ness, for the purpose of shipping those proceeds to Europe and Israel. The first time he met Ness, he accompanied an associate by the name of "David" to Ness' office at 580 Fifth Avenue, in order to deliver approximately $100,000 in drug proceeds to Ness for shipment to Israel. On that occasion, Ness gave "David" an Israeli telephone number and a code word so that "David" could arrange to have the cash picked up in Israel from Ness' contact. On another occasion Abikzer went to Ness' office with Aderi to drop off approximately $100,000 to be shipped to Belgium. Upon receiving the money, Ness gave Aderi a Belgian telephone number and the code word "Luba" so that Aderi and Abikzer could arrange for the money to be picked up in Belgium. [ Page 5]
On yet another occasion, Abikzer dropped off $30,000 in cash narcotics proceeds at Ness' office. Although Ness was not there at the time, Abikzer spoke to him on the phone, and Ness instructed Abikzer to give the money to his associate at the office and to call Ness later to get a name and telephone number. Abikzer testified that he was never given a receipt and was not asked to fill out any paperwork. He was never asked for identification, and Ness only knew him as "Haim."
Christopher Vidal and Stanley Vazquez testified about their interactions with Ness when they were working for a Brooklyn-based Ecstasy distribution organization headed by Moshe Marigin. Both Vidal and Vazquez picked up Ecstasy pills from couriers, delivered pills to customers, counted the proceeds of their narcotics trafficking, and delivered the proceeds to Ness. On the two occasions that Vidal delivered cash proceeds to Ness, whom he knew as "David," Ness told Vidal to meet him at an industrial block in Williamsburg, Brooklyn. Vidal drove up behind Ness' car, which was parked on the block, got into Ness' car with the cash, and handed it over to Ness. Vidal delivered approximately $191,000 in cash to Ness in a shopping bag on the first occasion and $315,000 in cash to Ness in a duffel bag on the second occasion. Ness did not ask Vidal for identification and did not provide him with a receipt.
Stanley Vazquez testified that he made, at Moshe Marigin's behest, about six deliveries of cash narcotics proceeds to Ness. Following Marigin's instructions, Vazquez brought a cache of money — the proceeds of Ecstasy trafficking — to Marigin's auto repair shop, where he found Marigin, Ness, and another associate counting money with a money counter. Vazquez dropped off the bag of cash he was carrying, and they counted that as well. After they finished counting all the money, Ness packed it into a large book bag, placed the money counter into a box, and left with both. The other deliveries of narcotics proceeds that Vazquez made to Ness all took place in the parking lot of a McDonald's restaurant in Williamsburg. On those [ Page 6]
occasions, Marigin asked Vazquez to contact Ness to arrange the deliveries. After meeting in the parking lot of McDonald's, Vazquez got into Ness' car, handed Ness the money, and then Ness drove through the parking lot and dropped off Vazquez down the block, so as not to attract attention. Again, Ness never asked Vazquez for ...