United States v. Floyd Brown, James Woodrow Mullis, Paul Wendell Calhoun, Jr.

53 F.3d 312, 1995 U.S. App. LEXIS 11651, 1995 WL 296050

• Court: Court of Appeals for the Eleventh Circuit
• Decided: May 15, 1995
• Docket: 93-8181
• Status: Published

Opinions

EDMONDSON, Circuit Judge:

James Mullis appeals his conviction for money laundering on the ground of insufficient evidence.¹ We affirm the conviction.

To show that Mullis laundered money, the government must prove that Mul-hs took part in a financial transaction with money he knew was obtained illegally and with the intent to promote the illegal activity or with intent to disguise the source of the money. See 18 U.S.C. § 1956. In reviewing a claim of insufficiency of the evidence, we view all evidence in the light most favorable to the government. United States v. Poole, 878 F.2d 1389, 1391 (11th Cir.1989) (per cu-riam).

Testimony by Gene Collins showed that Mullis was part of a drug organization headéd by Gene Collins that bought and sold marijuana from Texas to Georgia.² From December 1990 to March 1991, many calls were made from Mulhs’ telephone to Texas. Mulhs also drove Colhns to Texas two or three times on drug business. Although Mulhs transported no marijuana on those trips to Texas, he at another time did pick up a six-pound shipment of marijuana and take it to the 292 Club, a club owned by Colhns through Colhns’ ownership of the Phoenix Timber Company.

Other testimony at trial showed more directly Mulhs’ participation in a scheme to launder the proceeds of the drug business. When Colhns was buying the 292 Club, Dan McSwain, the club’s owner, told Colhns that MeSwain could not take the entire $5000 down payment in cash. Colhns testified that, in a conversation, with Paul Calhoun (Colhns’ then lawyer) and with Mulhs and Brown about the purchase of the 292 Club, Colhns instructed Mulhs and Brown each to go to different banks and to get a cashier’s check for $2000. Colhns also testified that Paul Calhoun told Mullís to show Calhoun — that is, not Collins — as the remitter of the cheek.

The government’s evidence was possibly enough to prove guilt beyond a reasonable doubt. The evidence was enough to prove that Mullís knew that Collins’ money came from the marijuana business. And the fact, among other things, that Mullís showed Calhoun as the remitter of the check might properly allow a jury to infer that Mullís knew the purchase of the 292 Club was intended to hide Collins’ drug proceeds. See generally United States v. Macko, 994 F.2d 1526, 1533 (11th Cir.1993) (“Circumstantial evidence may prove knowledge and intent.”). But we have no need to decide finally whether the government’s evidence alone was enough to prove guilt.

In addition to the other evidence of guilt, Mullís elected to take the stand and to testify in his defense. Defendants in criminal trials are not obliged to testify. And, a defendant who chooses to present a defense runs a substantial risk of bolstering the Government’s case.³ United States v. Bennett, 848 F.2d 1134, 1139 (11th Cir.1988). “[A] defendant whose motion for acquittal at the close of the Government’s case is denied must decide whether to stand on his motion or put on a defense, with the risk that in so doing he will bolster the Government case enough for it to support a verdict of guilty.” McGautha v. California, 402 U.S. 183, 214, 91 S.Ct. 1454, 1471, 28 L.Ed.2d 711 (1971), reh’g denied by McGautha v. California, 406 U.S. 978, 92 S.Ct. 2407, 32 L.Ed.2d 677 (1972), and vacated in part on other grounds sub nom. Crampton v. Ohio, 408 U.S. 941, 92 S.Ct. 2873, 33 L.Ed.2d 765 (1972).

Most important, a statement by a defendant, if disbelieved by the jury, may be considered as substantive evidence of the defendant’s guilt.⁴ See, e.g., United States v. Allison, 908 F.2d 1531, 1535 (11th Cir.1990); United States v. Howard, 895 F.2d 722, 724-25 (11th Cir.1990); United States v. Bennett, 848 F.2d 1134, 1139 (11th Cir.1988); United States v. Eley, 723 F.2d 1522, 1525 (11th Cir.1984). By “substantive evidence” we mean evidence “adduced for the purpose of proving a fact in issue, as opposed to evidence given for the purpose of discrediting a witness (i.e, showing that he is unworthy of belief), or of corroborating his testimony.” See Black’s Law Dictionary 1429 (6th ed. 1990). To be more specific, we have said that, when a defendant chooses to testify, he runs the risk that if disbelieved “the jury might conclude the opposite of his testimony is true.” Atkins v. Singletary, 965 F.2d 952, 961 n. 7 (11th Cir.1992); accord United States v. Sharif, 893 F.2d 1212, 1214 (11th Cir.1990). Mullís testified under oath that he did not know that Gene Collins was in the drug business. He also testified that he was in no way involved in helping Collins buy the 292 Club. But, the jury, hearing Mullís’ words and seeing his demeanor, was entitled to disbelieve Mullís’ testimony and, in fact, to believe the opposite of what Mullís said.

At least where some corroborative evidence of guilt exists for the charged offense (as is true in this case where, for example, there was evidence that Mullís helped convert cash to a cashier’s check to advance the purchase of the 292 Club) and the defendant takes the stand in his own defense, the defendant’s testimony, denying guilt, may establish, by itself, elements of the offense. This rule applies with special force where the elements to be proved for a conviction include highly subjective elements: for example, the defendant’s intent or knowledge, such as knowing that the purchase of the 292 Club was intended to hide Collins’ drug proceeds. See United States v. Morales, 868 F.2d 1562, 1574 (11th Cir.1989); United States v. Eley, 728 F.2d at 1525. Experience tells us that, where the issues in litigation involve highly subjective matters, the appearance and demeanor of the witnesses is of particular significance. See, e.g., General Ins. Co. v. Thielepape, 400 F.2d 852 (5th Cir.1968).

Because the evidence was sufficient, Mul-lis’ conviction for money laundering is affirmed.

AFFIRMED.

1 . Mullis was also convicted of conspiracy to distribute marijuana and cocaine. See 18 U.S.C. § 2 and 21 U.S.C. §§ 841, 846. Mullis appeals both his money laundering and conspiracy convictions by charging prosecutorial misconduct and error by the district court in sending only government tape transcripts to the jury. We affirm on these issues without discussion.

Floyd Brown appeals his convictions for conspiracy to possess with intent to distribute marijuana and cocaine and for money laundering. Brown's appeal raises questions about prosecuto-rial misconduct, the district court's sending tape transcripts to the jury, sufficiency of evidence and the indictment for money laundering.

Paul Wendell Calhoun also appeals his conviction for money laundering based on insufficiency of the evidence and on the ground that the indictment improperly charged the offense. We conclude that Brown and Calhoun have shown no reversible error and affirm the convictions. See 11th Cir.R. 36-1.

2 . Collins was indicted with the other members of the organization, but pled guilty and testified at trial for the Government.

3 . Our colleague in dissent has made much of the 1994 Amendment to Federal Rule of Criminal Procedure 29. At the outset, we hold that the amended Rule applies to no cases tried to verdict before the effective date (1 December 1994) of the amendment. A retroactive application on appeal of a rule designed to control proceedings in criminal trials seems neither just nor practical to us. Justice and practicality are the standards. See Order of Chief Justice Rehnquist dated 29 April 1994. This case was fully tried before 1 December 1994. And, by the way, no party in this case has cited the Amendment to the Rule to us.

The law applicable to this case is established by precedent binding on this panel. A defendant who presents evidence waives the right to appeal the denial of his Rule 29 motion made and denied at the end of the government’s case. Instead, the law of this Circuit is that an insufficiency of the evidence claim like this one will be reviewed taking into account all evidence presented in the case, including evidence put on by the defendant. United States v. Thomas, 8 F.3d 1552, 1558 n. 12 (11th Cir.1993).

4 . As we understand the core of the dissent, our colleague, in effect, rejects the idea that disbelieved testimony of a criminal defendant is substantive evidence to be counted toward guilt. But a significant body of precedent in this circuit recognizes that disbelieved testimony is substantive evidence to prove guilt; and this panel must faithfully credit those precedents. See Bonner v. Prichard, 661 F.2d 1206, 1209 (11th Cir.1981).