United States v. Millar

79 F.3d 338, 1996 WL 148594
CourtCourt of Appeals for the Second Circuit
DecidedApril 1, 1996
DocketNo. 559, Docket 95-1142
StatusPublished
Cited by47 cases

This text of 79 F.3d 338 (United States v. Millar) is published on Counsel Stack Legal Research, covering Court of Appeals for the Second Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Millar, 79 F.3d 338, 1996 WL 148594 (2d Cir. 1996).

Opinion

WINTER, Circuit Judge:

Patrick Moloney, a Melkite Catholic priest, appeals from his conviction and sentence after an eight-week jury trial before Judge Larimer. Moloney was convicted of a single count of conspiracy to possess money stolen from a bank in violation of 18 U.S.C. § 371 and was sentenced to fifty-one months imprisonment, three years supervised release, and a fifty-dollar special assessment. He appeals on a variety of grounds, including a challenge to the district court’s calculation of his sentence based on receipt of 2.2 million dollars in proceeds from a crime affecting a financial institution. See U.S.S.G. § 2B1.1(b)(7)(B).1 Moloney contends he did not personally possess that amount because access to the money was shared with co-defendant Samuel Millar. We remand for factual findings regarding the amount of gross receipts derived by Moloney. We affirm with respect to all other claims, except one that is dismissed for lack of jurisdiction.

BACKGROUND

We view the evidence in the light most favorable to the government. On the evening of January 5, 1993, three employees of the Brinks Armored Car Company were on duty at the Brinks money depot in Rochester, New York. Shortly after 6:00 p.m., two of them were accosted by two masked, armed gunmen and forced to lie face-down on the floor of the vault room. The third employee, Thomas O’Connor, had left the vault moments earlier. While bound and blindfolded on the floor, the two employees heard the robbers loading money into a vehicle apparently parked in the depot’s garage. After about an hour, the robbers left the premises, and the two Brinks employees freed themselves. Approximately 7.4 million dollars, and O’Connor, were missing.

[341]*341O’Connor told police that he had been taken captive by the robbers but quickly became a suspect in the robbery. In considering O’Connor’s possible role, an FBI Special Agent recalled an earlier investigation that revealed an association between O’Connor and Millar, an illegal Irish alien. Law enforcement officers established surveillance of Millar in the New York City area. FBI agents observed Millar meeting with Molo-ney at various locations, including Millar’s business and an apartment at 330 First Avenue in Manhattan. The FBI also learned that Moloney had purchased a new Ford Explorer truck on June 18, 1993 and had insured the vehicle in his name, although the vehicle was driven exclusively by Millar. On August 5, 1993, Millar was seen carrying several duffel bags from his residence, loading them into the Explorer, driving to a First Avenue apartment budding, and carrying the bags into the building. Agents observed shapes resembling bundled money in the bags and began to suspect that Millar was hiding the stolen Brinks money.

On August 6, 1993, agents observed Molo-ney entering the First Avenue apartment budding. He was seen entering the budding on six other occasions in August, twice in the company of Mdlar. Investigators learned that in July Moloney arranged with co-defendant Charles McCormick to use McCormick’s apartment, number 10D. On November 6, 1993, FBI technicians instaded in the tenth floor common hallway a closed circuit television camera (CCTV) that enabled investigators to view the doorway to the apartment. That same day, agents observed Moloney on CCTV entering Apartment 10D with two-folding card tables. Moloney remained there for 36 minutes and then left with a loaded knapsack.. On November 7, agents saw Mo-loney and Mdlar enter the apartment together. Moloney had an electronic money counting machine under his arm. After Moloney left by ear, agents saw him counting a two-inch thick stack of currency at a traffic light. On November 9, Moloney was seen leaving Apartment 10D with a money belt, which he tied around his waist in the hadway.

Between November 6 and 11, Moloney spent six and one-half hours and Mdlar spent almost nine hours in Apartment 10D. During six of those hours, they were together. Each had his own key to the apartment, which had a newly instaded lock. On November 11, Midar and Moloney met with a real estate agent in Westchester County, New York regarding Mdlar’s search for a home in the $300,000 price range. Moloney claimed that financing for the home would be arranged through his church.

Apartment 10D was searched on November 11 and 12. Investigators found 2.1 md-don dodars hidden in a locked bedroom closet. From a dst of serialized new bids stolen from the Brinks depot, agents identified $107,980 as money stolen during the January 5 robbery in Rochester. Agents also found a suitcase that had Moloney’s then-current address and telephone number on it. The suitcase contained $849,000. A separate bag of cash contained a hair that possessed physical characteristics simdar to Moloney’s hair. Moloney’s fingerprints were found on a glass in the bedroom. A money counter, rubber gloves, a calculator, two pens, and several pieces of paper with money figures in handwriting simdar to Moloney’s were found on card tables in the bedroom. The calculator’s vinyl wadet contained a card depicting a redgious figure from the Meddte Cathode Church.

Investigators searched Moloney’s residence and found documents bearing adases used by Midar and others. They also found deense plates to a minivan owned by the mother of Midar’s chddren, which agents had earder observed Midar driving. Although the minivan itself had disappeared, the minivan’s model had wheelbase measurements that corresponded with those at the scene of the Brinks robbery. The search of Molo-ney’s residence also produced a dst of loans that he had made and a description of real estate in Florida that he had offered to buy for $150,000 cash. In a safe in Moloney’s bedroom, agents found approximately $168,-000 in cash. Some of the stacks of bids bore numerical figures in ink resembling the figures found in Apartment 10D. A forensic evaluation of the chemical composition of the ink on the bids in Moloney’s bedroom determined that it was consistent with ink on the [342]*342notations and in the pens found in Apartment 10D.

Moloney was arrested at his residence. In a post-arrest statement, he claimed that he began using Apartment 10D only in September, could not recall whether he carried a money counting machine into the apartment, had no knowledge of locked closets within the apartment, and never saw any money there.

After three days of deliberation, the jury convicted Moloney of conspiracy to possess stolen money in violation of 18 U.S.C. § 371. At sentencing, the district court denied Molo-ney’s motion for a downward departure and adopted findings in the Presentence Report (PSR) that enhanced Moloney’s sentence under the Sentencing Guidelines. Moloney was sentenced to fifty-one months imprisonment.

Moloney claims reversible error in: (i) the district court’s emphasis of Moloney’s status as a priest during jury selection; (ii) its dismissal of a juror during trial; (iii) the denial of Moloney’s request for a hearing on the validity of the search warrants; (iv) the prosecution’s summation; (v) the insufficiency of the proof underlying conviction for conspiracy; (vi) the court’s supplemental jury instructions; (vii) the court’s refusal to grant a downward departure in light'of Molo-ney’s charitable works and public service; and (viii) the application of U.S.S.G.

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Bluebook (online)
79 F.3d 338, 1996 WL 148594, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-millar-ca2-1996.