The opinion of the court was delivered by: SIDNEY STEIN, District Judge
Eduardo Ramerez was convicted by a jury on January 12, 2003 of money
laundering in violation of 18 U.S.C. § 1956(a)(3)(B). He now moves
pursuant to Fed.R.Civ.P. 29 to have that verdict set aside, or in the
alternative, pursuant to Fed.R.Civ.P. 33 for a new trial.
The government charged Ramerez in a three count indictment with one
count of conspiring to launder money and with two counts of participating
in a financial transaction to launder money. The charges against Ramerez
stem from his participation in a scheme to launder the proceeds of
narcotics trafficking as follows: the cash proceeds of drug sales would
be used to buy gold shot or gold shot covered with silver
which in certain instances would be melted into the form of household
items such as wrenches, belts and keys. Some of these were in turn
painted to further disguise the fact that they were, quite literally,
golden. The gold, or gold items, could then be more easily transported
out of the United States without being detected by law enforcement At
trial, the government introduced evidence that Ramerez worked as a watch
repairman at Zarcos Jewelry, and that he and his employer, Fernando
Obregon-Torres, assisted the government's confidential informant
Fabio Hernandez to obtain gold in exchange for cash. Additionally, Ramerez and Obregon-Torres were
connected to Alberto Quichiz, the owner of Alberto Jewelry, and assisted
Hemandez in purchasing gold through Quichiz. At trial, the government
relied primarily upon the testimony of Hemandez and the recordings of his
conversations with Ramerez and other conspirators. The government
produced recordings of telephone conversations and recordings of meetings
where Hemandez represented his cash to be the proceeds of narcotics
trafficking in the presence of Ramerez and various other defendants. The
government also introduced evidence of Ramerez's conversations with
Hernandez about exchanging gold for cash. Hemandez testified that Ramerez
had secured gold for him on more than one occasion. At the end of the
trial, the jury acquitted Ramerez of Count One that he
participated in a money laundering conspiracy from April 2001 through
June 2003, and Count Two that he participated in a money
laundering transaction on February 5, 2002 by assisting Hemandez in
obtaining gold for cash. The jury convicted Ramerez of Count Three,
thereby finding that he participated in a money laundering transaction on
May 21, 2003.
A. Rule 29 Motion to Set Aside the Verdict
Defendant seeks a judgment of acquittal based on insufficiency of the
evidence pursuant to Fed.R.Civ.P. 29. A district court will grant such
a motion only if it concludes "that no rational trier of fact could have
found the defendant guilty beyond a reasonable doubt" U.S. v.
Jackson. 335 F.3d 170,180 (2d Cir. 2003) (citing Fed. R, Crim. P.
29(a), (c); United States v. Reyes. 302 F.3d 48, 52 (2d Cir.
2002)). A defendant who challenges the sufficiency of the evidence to
support his conviction "bears a heavy burden," Id. (citing United States v. Finley,
245 F.3d 199,202 (2d Cir. 2001)). The district court must view all of the
evidence in the light most favorable to the Government and "all
permissible inferences [must be] drawn in the Government's favor."
Guadagna, 183 F.3d 122,129 (2d Cir. 1999). If "any rational
trier of fact could have found the essential elements of the crime beyond
a reasonable doubt," then the jury's verdict must be upheld. U.S. v.
Jackson. 335 F.3d at 180 (citing Jackson v. Virginia.
443 U.S. 307, 319(1979)).
The jury convicted Eduardo Ramerez of Count Three of the indictment,
violating 18U.S.C. § 1956(a)(3)(B).*fn1
That count alleged that he
participated in a money laundering transaction on May 21, 2003. The Court
instructed the jury that in order to convict Ramerez on this count, they
must find that Eduardo Ramerez's conduct satisfied the following three
elements beyond a reasonable doubt:
"One, that Mr. Ramerez conducted a financial
transaction which affects interstate or foreign
commerce in any way;
Two, that the transaction involved property
represented by a law enforcement officer or his
agent to be, and believed by Mr. Ramerez to be,
the proceeds of a specified unlawful activity; and
Three, that Mr. Ramerez acted with the intent to
conceal or disguise the nature, location, source,
ownership, or control of property believed to be
the proceeds of specified unlawful activity."
(Trial Tr.p, 608-609).
The jury was also instructed that pursuant to 18 U.S.C. § 2 Ramerez
could be convicted on Count Three as an aider and abettor if the jurors
found beyond a reasonable doubt that Ramerez "willfully and knowingly
associated himself in some way with the crime and willfully and knowingly sought by some act to help make
the crime succeed." (Trial Tr. p. 610:16-19). The Court also instructed
the jury that the "presence of defendant where a crime is being
committed, even coupled with knowledge that a crime is being committed or
the mere acquiescence by a defendant in the criminal conduct of others,
even with guilty knowledge, is not sufficient to establish aiding and
abetting. The aider and abettor must have some interest in the criminal
venture." (Trial Tr. 610-611).
The evidence produced at trial was more than sufficient to support the
jury's conclusion that Eduardo Ramerez engaged in a financial transaction
in violation of 18 U.S.G § 1956, or that he aided and abetted others
in their violation of that statute.
The jury was entitled to consider evidence that Ramerez was present at
conversations that took place in his hearing between the government's
confidential informant, Hernandez, and Ramerez's employer,
Obregon-Torres. A rational juror could conclude from those conversations,
beyond a reasonable doubt, that Hernandez had represented the money to be
the proceeds of illegal drug trafficking and that Ramerez believed that
the money was the proceeds of illegal narcotics trafficking. For example,
Hernandez said, in the presence of Ramerez on May 9, "my boss was
receiving some cocaine here in the United States and so once he finished
selling the cocaine he was going to give the money to me and we needed to
buy gold to send it back to Colombia." (Trial Tr, 246); (Government
Exhibit ("GX") 117 at 19).
A rational juror could also conclude from Ramerez's conversations with
Hernandez on May 21, 2003 that Ramerez intended to assist, or did assist,
Hernandez in completing a transaction to disguise the origins of the
money. In a recorded telephone conversation, played for the jury,
Hernandez said to Ramerez, "So I told him [Alberto Quichiz] that you recommended me and all so that . . . I'll send
you a small commission with him now." Ramerez responded, "Oh, right.
Nice. Nice," (GX 183T at 3).
Ramerez's response here is sufficient to support an inference that he
was agreeing that he had facilitated Hernandez's acquisition of gold from
Quichiz and that he would accept the tip.
While the testimony could also be construed to support the conclusion
urged by defendant that Ramerez was only indicating his agreement
to accept a tip in light of the other evidence presented at
trial, a rational juror was able to conclude beyond a reasonable doubt
that Ramerez intended to facilitate Hernandez's transaction, and
knowingly did so. For example, the jury heard a second conversation
recorded on May 21, 2003 where Ramerez offered to meet Hemandez after
Obregon-Torres returned to the store. The jury was entitled to infer from
this evidence that Ramerez intended to assist Obregon-Torres, and did in
fact do so. Moreover, the jurors heard evidence showing that
Obregon-Torres and Ramerez had first established the connection between
Hemandez and Quichiz, and also evidence that Hemandez first approached
Obregon-Torres and Ramerez when seeking to buy gold. Even if the jury did
not believe that Ramerez took any specific ...