United States v. Weiner

152 F. App'x 38
CourtCourt of Appeals for the Second Circuit
DecidedOctober 14, 2005
DocketDocket No. 05-1512-CR
StatusPublished

This text of 152 F. App'x 38 (United States v. Weiner) 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. Weiner, 152 F. App'x 38 (2d Cir. 2005).

Opinion

SUMMARY ORDER

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of conviction, entered on March 8, 2005, in the United States District Court for the Southern District of New York (Jed S. Rakoff, Judge), is hereby AFFIRMED.

Defendant Paul Weiner, who was convicted after a jury trial of conspiring to launder money in violation of 18 U.S.C. § 1956(a), (h), appeals his conviction on the grounds that (1) the evidence was insufficient to support a verdict of guilty, (2) the evidence establishes entrapment as a matter of law, (3) his conviction violates due process, and (4) there was a constructive amendment in the indictment or an impermissible variance between the indictment and the trial evidence. We assume the parties’ familiarity with the facts of this case and record of prior proceedings, which we reference only as necessary to explain our decision to affirm.

1. Sufficiency of the Evidence

A defendant challenging the sufficiency of the evidence supporting his conviction [40]*40“bears a ‘heavy burden,’ ” United States v. McCarthy, 271 F.3d 387, 394 (2d Cir.2001) (quoting United States v. Bala, 236 F.3d 87, 93 (2d Cir.2000)), because, although we review his claim de novo, we will “ ‘affirm if the evidence, when viewed in its totality and in the light most favorable to the government, would permit any rational jury to find the essential elements of the crime beyond a reasonable doubt,’ ” United States v. Madori, 419 F.3d 159, 166 (2d Cir.2005) (quoting United States v. Geibel, 369 F.3d 682, 689 (2d Cir.2004)).

a. Meeting of the Minds

Weiner does not seriously dispute that he offered to launder money for the undercover agents on December 18, 2002; indeed, he virtually admitted as much in his own testimony at trial. Instead, he submits that the government failed to prove that there was a conspiratorial “meeting of the minds” between himself and his co-defendant Zellermaier. He is wrong. The government carried its burden by offering evidence that Weiner and Zellermaier closely collaborated throughout the December 18, 2002 meeting — with Weiner often taking the lead — to offer money laundering services to the agents. See United States v. Amato, 15 F.3d 230, 235 (2d Cir.1994) (“The government need not present evidence of a formal or express agreement, but may rely on proof that the parties have a tacit understanding to engage in the offense.”); see also United States v. Geibel, 369 F.3d at 689 (“ ‘The co-conspirators need not have agreed on the details of the conspiracy, so long as they agreed on the essential nature of the plan.’ ” (quoting United States v. McDermott, 245 F.3d 133, 137 (2d Cir.2001))). That the agents never accepted the offer could not undo Weiner’s agreement with Zellermaier.

b. Health Care Fraud

To convict Weiner of a conspiracy in violation of 18 U.S.C. § 1956(a), (h), the government was required to prove that the money at issue had been represented to him as the proceeds of a specified unlawful activity, in this case, “a Federal health care offense.” 18 U.S.C. § 1956(c)(7)(F); see United States v. All Funds Distributed to Weiss, 345 F.3d 49, 53 n. 2 (2d Cir.2003); see also Doe v. United States (In re Admin. Subpoena), 253 F.3d 256, 265 (6th Cir.2001) (“The Code broadly defines a ‘Federal health care offense’ as a violation of, or a conspiracy to violate, a number of health-care related offenses, including 18 U.S.C. § 1035 (false statements relating to health care matters) and 18 U.S.C. § 1347 (health care fraud).”).

Relying on United States v. Anderson, 391 F.3d 970, 977 (9th Cir.2004), Weiner argues that the agents’ representation had to be sufficiently specific to establish each element of health care fraud. That is not the law in this circuit. See United States v. Leslie, 103 F.3d 1093, 1103-04 (2d Cir.1997) (holding that agent’s comment about “powder-type” money containing traces of drugs was sufficient to prove defendant’s belief that laundered money represented the proceeds of narcotics trafficking); United States v. Wydermyer, 51 F.3d 319, 328 (2d Cir.1995) (holding statements that money came from the sale of arms adequately represented to defendant that the funds were proceeds of specified unlawful activity, i.e., violation of the Arms Export Control Act).

On December 18, 2002, the undercover agents stated that the money they were laundering through General Credit derived from various frauds, including a healthcare scam being run by Russian confederates. This was sufficient to support a jury finding that the agents had represented to Weiner that the funds at issue de[41]*41rived, at least in part, from this specified unlawful activity. To the extent Weiner submits that a single reference to healthcare fraud was not entitled to much weight, that was a question for the jury, which we assume was resolved in favor of the government. See United States v. Wydermyer, 51 F.3d at 327-28 (noting that whether statement “sufficiently conveys” that money derives from a specified activity is generally “a fact-specific determination”).1

2. Entrapment as a Matter of Law

Defendant’s argument that he was entrapped as a matter of law essentially contends “that the evidence was insufficient to permit the jury to rationally conclude that he was predisposed ... to commit the crime charged.” United States v. Harvey, 991 F.2d 981, 992 (2d Cir.1993); see United States v. Bala, 236 F.3d at 94 (noting that, when a defendant presents credible evidence of government inducement to support defense of entrapment, the prosecutor must prove predisposition beyond a reasonable doubt); United States v. Salerno, 66 F.3d 544, 547 (2d Cir.1995) (holding that “defendant is predisposed to commit a crime if he is ready and willing without persuasion to commit the crime charged and awaiting any propitious opportunity to do so”) (internal quotation marks omitted). We disagree.

Preliminarily, we note that the jury was by no means required to accept Weiner’s claim of government inducement.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Lawrence v. Texas
539 U.S. 558 (Supreme Court, 2003)
Whitfield v. United States
543 U.S. 209 (Supreme Court, 2005)
United States v. Louis Heimann
705 F.2d 662 (Second Circuit, 1983)
United States v. Jeffrey Harvey
991 F.2d 981 (Second Circuit, 1993)
United States v. Pasquale Amato
15 F.3d 230 (Second Circuit, 1994)
United States v. Adeyemi Adeniji
31 F.3d 58 (Second Circuit, 1994)
United States v. John Johansen
56 F.3d 347 (Second Circuit, 1995)
United States v. Peter Leslie and Roland Williams
103 F.3d 1093 (Second Circuit, 1997)
United States v. Arthur Morrison
153 F.3d 34 (Second Circuit, 1998)
United States v. Susan Frank and Jane Frank Kresch
156 F.3d 332 (Second Circuit, 1998)
United States v. Robert J. McCarthy
271 F.3d 387 (Second Circuit, 2001)
United States v. Christopher D. Reyes
302 F.3d 48 (Second Circuit, 2002)

Cite This Page — Counsel Stack

Bluebook (online)
152 F. App'x 38, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-weiner-ca2-2005.