EDNY Judge Grants Judgment of Acquittal on Money Laundering Counts but Denies Application for Jury Determination on Forfeiture Money Judgment

One of the ills highlighted in the Supreme Court's recent money laundering decisions in Santos and Cuellar is the tacking on of money laundering charges to a variety of crimes in order to induce guilty pleas.  The entanglement of substantive criminal charges with money laundering charges is illustrated in United States v. Roberts, 2009 WL 1833389 (E.D.N.Y. June 29, 2009), where the defendant, an airline employee, was charged with participation in a drug importation conspiracy and also with two money laundering counts, arising out of his role in surreptitously loading and unloading baggage off and on planes traveling between the U.S. and Jamaica.

Money Laundering

The evidence of Roberts' alleged participation in money laundering consisted essentially of his secret loading of a black plastic bag onto a Jamaica-bound flight which would be retrieved at the other end by another individual who would use it "to pay for the drugs or buy more drugs."  Granting the defendant's motion for a judgment of acquittal on the money laundering counts, Judge Irizarry held that this evidence demonstrated "only an intent to conceal the transportation, not an intent to transport money in order to conceal it."  As in Cuellar, the evidence suggests that “the secretive aspects of the transportation were employed to facilitate the transportation, ... but not necessarily that secrecy was the purpose of the transportation.”  The government had "failed to introduce any evidence that the reason that the drug smugglers move money to Jamaica is to conceal or disguise any of the attributes of the funds listed in Section 1956(a)(2)(B)(i)."

Money Judgment

Roberts fared less well on his request for a jury determination on the criminal forfeiture money judgment sought by the government under 21 U.S.C. § 853 in connection with the narcotics trafficking charges he faced.  In United States v. Roberts, 2009 WL 1911690 (E.D.N.Y. June 30, 2009), the court found that on the issue of forfeiture, a jury may decide only whether there is a nexus between the specific property sought to be forfeitured and the charged offense.  It had no role where the government only sought - as here - a forfeiture money judgment. "If the government does not seek specific property, but rather a personal money judgment, the court itself determines the amount of money that the defendant will be ordered to pay. . . The defendant is not entitled to have the jury decide the amount of the forfeiture.”  Interestingly, the government had not taken a position on this issue, but noted that district courts have differed on the issue.