United States v. Reiss

186 F.3d 149
CourtCourt of Appeals for the Second Circuit
DecidedMay 27, 1999
DocketNos. 98-1468, 98-1441
StatusPublished
Cited by14 cases

This text of 186 F.3d 149 (United States v. Reiss) 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. Reiss, 186 F.3d 149 (2d Cir. 1999).

Opinion

TSOUCALAS, Judge.

Defendant-appellant Mahir Reiss appeals from his sentence imposed by the United States District Court for the Eastern District of New York (Jack B. Wein-stein, Judge) following his plea of guilty to a money-laundering charge. Specifically, Reiss claims that the district court erred in its calculation and imposition of a $6.3 million fíne. Reiss further argues that he is entitled to be resentenced pursuant to Fed.R.Crim.P. 35 because of an alleged Fed.R.Crim.P. 32 violation during sentencing.

We affirm.

Background,

Reiss, a sophisticated businessman, used Swiss bank accounts to pool vast sums of money from around the world. Under Reiss’ direction, funds were wired into his accounts from accounts in a number of foreign countries and immediately sent out again to international locations. More than $16 million was deposited into his accounts and more than $19 million was subsequently withdrawn between 1994 and 1997. An investigation by the Drug Enforcement Administration (“DEA”) and the Internal Revenue Service (“IRS”) revealed that some of these funds were the proceeds of criminal activity.

On December 22, 1997, Reiss pleaded guilty to a one-count superseding information that charged him with conspiring to engage in monetary transactions in criminally derived property (derived, in fact, from narcotics trafficking) in excess of $10,000 from August 1994 through April 1996 in violation of 18 U.S.C. §§ 1956(h) and 1957(a). The district court sentenced Reiss to a term of 27 months imprisonment, three years supervised release, joint forfeiture with his co-defendant of $1,000,-000, a special assessment of $50, and the maximum statutory fine under the court’s calculations of $6.3 million.

There are three business transactions relevant to the imposition of Reiss’ fíne. The district court applied the sum of $750,-000 from the first two transactions to the $2.4 million involved in the third transaction to calculate the fine imposed. Reiss does not challenge the use of the two transactions totaling $750,000 in determining the fine. The inclusion of the third transaction, which involves the sale of an airplane, is at issue here.

Reiss claims that the government failed to establish that any of the funds used in the airplane transaction were criminally derived property under § 1957. In the alternative, Reiss argues that even if part of the funds were criminally derived, the fine imposed cannot be based on the total amount of money used in the airplane transaction. Reiss further asserts that even if drug money were involved in the transaction, the fine imposed was erroneous because he had no knowledge that drug proceeds were being used to purchase the airplane. Finally, Reiss contends that the district court did not develop a sufficient record justifying its decision and failed to consider Reiss’ ability to pay the fine imposed along with other enumerated factors as required by the Sentencing Guidelines.

Apart from appealing the calculation of the fine, Reiss argues that he is entitled to be resentenced pursuant to Fed.R.Crim.P. 32(c)(1) and 35 because substantial changes were allegedly made to the pre-sentence report (“PSR”) after his sentence was imposed.

[152]*152 Discussion

A. The Calculation of the Fine

Section 1957, the money-laundering statute to which Reiss pleaded guilty, provides in relevant part:

(a) Whoever ... knowingly engages or attempts to engage in a monetary transaction in criminally derived property that is of a value greater than $10,000 and is derived from specified unlawful activity, shall be punished as provided in subsection (b).
(b)(1) Except as provided in paragraph (2), the punishment for an offense under this section is a fíne under title 18, United States Code, or imprisonment for not more than ten years or both.
(2) The court may impose an alternate fine ... of not more than twice the amount of the criminally derived property involved in the transaction.
(f) As used in this section—
(2) the term “criminally derived property” means any property constituting, or derived from, proceeds obtained from a criminal offense; and
(3) the term “specified unlawful activity” has the meaning given that term in section 1956 of this title [which includes narcotics trafficking],

18 U.S.C. § 1957 (emphasis added).

Judge Weinstein calculated Reiss’ offense level on the basis of all three money laundering transactions which involved, in total, $3,150,000. The court therefore doubled the amount of money found to be criminally derived, as the statute permits, to determine the $6.3 million fine.1

1. Proof of Criminally Derived Property

Although Reiss concedes that the $750,000 he laundered in the winter of 1995 and in the spring of 1996 were criminally derived proceeds, he argues that the government failed to establish that any of the money passed through his Swiss bank account to purchase an aircraft for Colombian buyers was criminally derived property. In the alternative, Reiss argues that, even if part of the $2.4 million were drug proceeds, the fine may not be based on the entire amount of money involved in the airplane transaction.

Reiss’ argument that the government failed to prove that the funds used to purchase the airplane were actually criminally derived has no merit. The district court found that the government demonstrated that the aircraft transaction involved proceeds of narcotics trafficking and that, in particular, the $2.4 million was drug money. We review such findings of fact by the district court for clear error. We find no error here.

The record strongly supports the district court’s conclusion that the $2.4 million in laundered funds were drug proceeds. Reiss’ scheme concerning the airplane purchase required many convoluted steps, a ruse that is characteristic of similar dealings with drug traffickers. The main events in his money-laundering operation involving the airplane purchase were as follows: In September and October 1994, Reiss, with the help of officials at Steger Trust, a private bank in Switzerland where he held several accounts, established Aero Marketing, a Liberian front company domiciled in Switzerland, for the sole purpose of buying the airplane. Aero Marketing shared a mailing address with Steger Trust and had as its only director a Liechtenstein-based functionary. Steger Trust officials were the original owners of the company, but the ownership certificates were transferred to a friend of Reiss’. Reiss had Steger Trust create an account for Aero Marketing, for which the bank deducted $20,000 in fees from Reiss’ accounts.

[153]

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United States v. Mahir Reiss
186 F.3d 149 (Second Circuit, 1999)

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Bluebook (online)
186 F.3d 149, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-reiss-ca2-1999.