JOSEPH F. BIANCO, District Judge:
On May 1, 2014, a jury convicted defendant Adam Valasquez ("Valasquez" or "defendant") of five crimes related to defendant's participation in a conspiracy to rob drug traffickers and business owners in New York City and Long Island.
At trial, the government introduced evidence of defendant's participation in a conspiracy to rob drug dealers and business owners in New York City, Long Island, and New Jersey. Timothy Glass ("Glass") testified that he, defendant, and others committed the following crimes in 2008 and 2009: theft of clothing from a warehouse in New Jersey in late 2008 (see Trial Transcript ("Tr.") 423-42); armed robbery of marijuana dealer Christian Olic ("Olic") at 152nd Street in Queens, New York in January 2009 (see id. at 442-62); armed robbery of a medical office on 188th Street in Queens, New York at the end of January 2009 (see id. at 464-73); theft of power tools and a pickup truck in Queens in February 2009 (see id. at 473-76); armed burglary of an apartment in Hoboken, New Jersey sometime in 2009 (see id. at 476-80); and armed robbery of the Glen Oaks Bar in Queens, New York in March 2009 (see id. at 480-88). Martin Lovly ("Lovly"), also a participant in the 152nd Street robbery, corroborated Glass's testimony that defendant was involved in that robbery. (See id. at 231-43.) Athanasios Michaelides ("Michaelides"), another coconspirator, testified that he observed defendant with Glass shortly after the 152nd Street robbery (see id. at 966-67), and that he saw defendant unloading the truck full of stolen clothing when Glass and his crew returned to Queens after breaking into the New Jersey warehouse (see id. at 971-72). Coconspirator Kermit Odums ("Odums") also testified that he, defendant, and others committed an additional armed robbery of individuals at 99th Street in Queens in November 2009 (see id. at 853-86), and that he, defendant, and others participated in the burglary of an apartment in Brooklyn later that day (see id. at 886-92).
The jury also heard evidence concerning the division of the proceeds of these crimes. Glass testified that his crew, including defendant and Lovly, stole approximately two pounds of marijuana from Olic at the 152nd Street robbery. (See id. at 461-62.) Glass sold the marijuana to Michaelides for approximately $4000, and then Glass paid each participant in the 152nd Street robbery, including defendant, a portion of that money. (See id. at 462.) Glass did not pay the coconspirators evenly; Lovly testified that he received a greater share—about $1200—than defendant. (See id. at 367-77.) Glass also testified that, following his theft of power tools and a pickup truck in Queens in February 2009, he sold the power tools for cash, and then divided the cash among his crew (including defendant). (See id. at 473-76.)
Following the presentation of the government's case-in-chief, defendant moved for a judgment of acquittal pursuant to Federal Rule of Criminal Procedure 29(a). (See id. at 1059.) The Court denied the motion as to Counts One through Seven, stating that "there is no question that there is sufficient proof with respect to each and every element of these, counts one through seven." (Id. at 1060.) Pursuant to Rule 29(b), the Court reserved judgment as to Count Eight, the money laundering conspiracy count. (Id. at 1059.)
The Court submitted all eight counts of the superseding indictment to the jury. On May 1, 2014, the jury returned a verdict of guilty as to Count One (Hobbs Act robbery conspiracy from April 2008 through April 2010), Count Three (robbery
Defendant renewed his motion for a judgment of acquittal as to Count Eight on June 9, 2014. The government submitted a letter brief in opposition to the motion on July 11, 2014. This matter is fully submitted, and the Court has fully considered the submissions of the parties and all evidence introduced at trial.
"Motions under Rule 29(c) are governed by the same standard as motions under Rule 29(a)." United States v. Martinez, 978 F.Supp.2d 177, 185 (E.D.N.Y.2013). Pursuant to Rule 29(a), a district court shall enter a judgment of acquittal as to "any offense for which the evidence is insufficient to sustain a conviction." Fed. R.Crim.P. 29(a). Rule 29(c) permits a defendant to "move for a judgment of acquittal, or renew such a motion, within 14 days after a guilty verdict or after the court discharges the jury, whichever is later." Fed.R.Crim.P. 29(c).
"`A defendant bears a heavy burden in seeking to overturn a conviction on grounds that the evidence was insufficient.'" United States v. Lorenzo, 534 F.3d 153, 159 (2d Cir.2008) (quoting United States v. Cruz, 363 F.3d 187, 197 (2d Cir.2004)); see, e.g., United States v. Pipola, 83 F.3d 556, 564 (2d Cir.1996) (noting "heavy burden" in challenging sufficiency of evidence); United States v. Tillem, 906 F.2d 814, 821 (2d Cir.1990) (stating that defendants challenging the sufficiency of evidence "rarely carry the day"). This is because the standard under Rule 29, as articulated by the United States Supreme Court, is "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) (emphasis in original); see, e.g., Lorenzo, 534 F.3d at 159; United States v. Finnerty, 533 F.3d 143, 148 (2d Cir.2008); United States v. Irving, 452 F.3d 110, 117 (2d Cir.2006); United States v. Temple, 447 F.3d 130, 136 (2d Cir.2006). "Put another way, `[a] court may enter a judgment of acquittal only if the evidence that the defendant committed the crime alleged is nonexistent or so meager that no reasonable jury could find guilt beyond a reasonable doubt.'" Temple, 447 F.3d at 136 (brackets in original) (quoting United States v. Guadagna, 183 F.3d 122, 130 (2d Cir.1999)).
It is important to emphasize that, in evaluating the evidence under this standard, "courts must be careful to avoid usurping the role of the jury when confronted with a motion for acquittal." United States v. Jackson, 335 F.3d 170, 180 (2d Cir.2003); see also United States v. Florez, 447 F.3d 145, 154-55 (2d Cir. 2006) ("In assessing sufficiency, we are obliged to view the evidence in its totality and in the light most favorable to the prosecution, mindful that the task of choosing among permissible competing inferences is for the jury, not a reviewing court."); Guadagna, 183 F.3d at 130 ("Rule 29(c) does not provide the trial court with an opportunity to substitute its own determination of the weight of the evidence and the reasonable inferences to be drawn for that of the jury." (internal quotation marks and ellipses omitted)).
Viewing the evidence in the light most favorable to the prosecution means "drawing all inferences in the government's favor and deferring to the jury's assessments of the witnesses' credibility." United States v. Arena, 180 F.3d 380, 391 (2d Cir.1999) (internal citation and quotation marks omitted), overruled on other grounds by Scheidler v. Nat'l Org. for Women, Inc., 537 U.S. 393, 123 S.Ct. 1057, 154 L.Ed.2d 991 (2003); accord United States v. James, 239 F.3d 120, 124 (2d Cir.2000) ("[T]he credibility of witnesses is the province of the jury, and we simply cannot replace the jury's credibility determinations with our own." (internal citation and quotation marks omitted)). In examining the sufficiency of the evidence, the Court also should not analyze pieces of evidence in isolation, but rather must consider the evidence in its totality. See United States v. Rosenthal, 9 F.3d 1016, 1024 (2d Cir.1993); see also Guadagna, 183 F.3d at 130 (holding that sufficiency test "must be applied to the totality of the government's case and not to each element, as each fact may gain color from others"). Finally, "[d]irect evidence is not required; `[i]n fact, the government is entitled to prove its case solely through circumstantial evidence, provided, of course, that the government still demonstrates each element of the charged offense beyond a reasonable doubt.'" Lorenzo, 534 F.3d at 159 (quoting United States v. Rodriguez, 392 F.3d 539, 544 (2d Cir.2004)); see also Irving, 452 F.3d at 117; Jackson, 335 F.3d at 180; United States v. Martinez, 54 F.3d 1040, 1043 (2d Cir.1995). However, "if the evidence viewed in the light most favorable to the prosecution gives equal or nearly equal circumstantial support to a theory of guilt and a theory of innocence, then a reasonable jury must necessarily entertain a reasonable doubt." United States v. Glenn, 312 F.3d 58, 70 (2d Cir.2002) (internal citation and quotation marks omitted); accord United States v. Cassese, 428 F.3d 92, 99 (2d Cir.2005).
In short, "`[w]here a court concludes after a full analysis of the evidence in connection with a Rule 29 motion that `either of the two results, a reasonable doubt or no reasonable doubt, is fairly possible, [the court] must let the jury decide the matter.'" Temple, 447 F.3d at 137 (quoting United States v. Autuori, 212 F.3d 105, 114 (2d Cir.2000)). On the other hand, "`in passing upon a motion for directed verdict of acquittal, . . . if there is no evidence upon which a reasonable mind might fairly conclude guilt beyond a reasonable doubt, the motion must be granted.'" Id. (quoting United States v. Taylor, 464 F.2d 240, 243 (2d Cir.1972)).
Defendant was convicted of conspiracy to commit promotion money laundering under 18 U.S.C. § 1956(h), which states that "[a]ny person who conspires to commit any offense defined in this section. . . shall be subject to the same penalties as those prescribed for the offense the commission of which was the object of the conspiracy." In the instant case, the object of that conspiracy was promotion money laundering in violation of 18 U.S.C. § 1956(a)(1)(A)(i). The promotion money laundering statute itself provides that
18 U.S.C. § 1956(a)(1)(A)(i). Therefore, to prove a substantive violation of this criminal statute, the government must establish that a defendant (1) knowing that the property involved in a financial transaction represented the proceeds of some form of unlawful activity, (2) conducted or attempted to conduct a financial transaction, (3) which in fact involved the proceeds of specified unlawful activity, (4) with the intent to promote the carrying on of specified unlawful activity. United States v. Hassan, 578 F.3d 108, 127 (2d Cir.2008) (citations omitted). To establish a conspiracy to commit promotion money laundering, the government must prove beyond a reasonable doubt that "(1) a conspiracy to commit promotion money laundering was in existence, and (2) that during the conspiracy, the defendant knew that the proceeds used to further [the scheme] had been derived from an illegal activity, and knowingly joined in the conspiracy." United States v. Alerre, 430 F.3d 681, 693-94 (4th Cir.2005); accord United States v. Diamond, 378 F.3d 720, 727 (7th Cir.2004).
Although promotion money laundering may "differ from that which we traditionally associate with the term `money laundering,' the language Congress used in 18 U.S.C. § 1956(a)(1)(A)(i) shows that it sought to reach conduct that went beyond the concealment of proceeds of criminal activity." United States v. Skinner, 946 F.2d 176, 178 (2d Cir.1991). Indeed, the term "laundering" is "a complete misnomer" for this crime, as it does not require any evidence of concealment. United States v. Kalust, 249 F.3d 106, 111 (2d Cir.2001) (Winter, J., concurring). "The paradigmatic example of this crime is a drug dealer using the proceeds of a drug transaction to purchase additional drugs and consummate future sales." United States v. Warshak, 631 F.3d 266, 317 (6th Cir.2010) (citing United States v. Torres, 53 F.3d 1129, 1137 n. 6 (10th Cir.1995)). However, as discussed infra, the crime of promotion money laundering—and, by extension, conspiracy to commit promotion money laundering—covers more than the paradigmatic case.
In this case, defendant focuses on the fourth element of promotion money laundering, the promotion element. To satisfy the promotion element, the Second Circuit requires evidence that a transaction "of laundered funds was made with the intent to promote the specified underlying unlawful activity, be it, for example, by promoting continued illegal activity or by being essential to the completion of the scheme." United States v. Thorn, 317 F.3d 107, 133 (2d Cir.2003). The Second Circuit adheres to a broad view of the promotion element; a defendant need not reinvest the transferred proceeds in subsequent unlawful activities in order to promote specified unlawful activity. See United States v. Piervinanzi, 23 F.3d 670, 682 (2d Cir.1994); see also Skinner, 946 F.2d at 177-78.
For instance, in Skinner, the Second Circuit upheld promotion money laundering convictions based upon the following evidence: one defendant (Blodgett) sent cocaine from Alaska to the other defendant (Skinner) in Vermont; Skinner sold the
Defendant contends that there was insufficient evidence of a conspiracy to commit promotion money laundering because there was no evidence of an intent to promote the carrying on of robberies and marijuana distribution.
As an initial matter, the Court emphasizes that defendant was convicted of conspiracy to commit promotion money laundering, not the substantive crime of promotion money laundering, and that "the prosecution was not required to prove that the defendant[] had committed promotion money laundering in order to convict [him] of conspiring to do so." Alerre, 430 F.3d at 694. Accordingly, the Court's inquiry is "limited to whether the trial evidence was sufficient to sustain the defendant['s] conviction[] for conspiracy to commit promotion money laundering." Id.
Next, although defendant does not challenge the proceeds element of promotion money laundering, the Court reiterates what it has already explained on the record with respect to that element. (See Tr. 1237-38). Because the evidence in this case showed that the allegedly laundered funds derived from the sale of stolen property, including stolen drugs, the term "`proceeds' is not limited to `profits.'" United States v. Quinones, 635 F.3d 590, 599 (2d Cir.2011) (holding "that `proceeds' under 18 U.S.C. § 1956 is not limited to `profits' at least where, as here, the predicate offense involves the sale of contraband")
Finally, the Court turns to the promotion element, which is the only element defendant actually contests in the pending motion. Viewing the evidence in the light most favorable to the government, and bearing in mind that even "de minimis" promotion will suffice to support a conviction for money laundering conspiracy, see Skinner, 946 F.2d at 179, the Court concludes that a reasonable trier of fact could have found beyond a reasonable doubt that defendant joined a conspiracy that intended to promote Hobbs Act robberies and marijuana distribution by distributing the proceeds of robberies to the coconspirators. Critically, there was sufficient evidence that the defendant participated in an ongoing conspiracy to commit multiples Hobbs Act robberies. Moreover, the evidence concerning the 152nd Street robbery showed that the coconspirators did not merely divide up the stolen goods; instead, Glass converted the goods to cash and then paid each conspirator a different amount. In other words, there was evidence that Glass paid his coconspirators like employees of the conspiracy. A reasonable jury could have inferred from these facts that the plan to pay the proceeds of robberies to coconspirators was designed to encourage their participation in future crimes, i.e., to promote the carrying on of Hobbs Act robberies. As Chief Judge Kozinski has argued persuasively,
United States v. Matranga, 116 F.3d 487 (Table), 1997 WL 330615, at *10 (9th Cir. 1997) (Kozinski, J., dissenting).
Defendant's reliance on United States v. Jolivet, 224 F.3d 902 (8th Cir.2000), is misplaced. In Jolivet, the Eighth Circuit reversed the defendant's promotion money laundering convictions because there was no evidence that the defendant and her confederate had "used the proceeds from any one incident to further their future schemes." 224 F.3d at 911. Moreover, the Eighth Circuit found "no logic in the government's suggestion that [a defendant] could promote the carrying on of an already completed crime." 224 F.3d at 909. Here, unlike in Jolivet, the government has not suggested that defendant merely conspired to promote the carrying on of an already completed crime. Instead, as noted supra, the government has maintained since trial that defendant conspired to promote the carrying on of future crimes, and the evidence supports such a finding.
Accordingly, viewing the evidence in the light most favorable to the government, the Court concludes that a reasonable jury
For the reasons set forth herein, defendant's motion for judgment of acquittal as to Count Eight is denied.
SO ORDERED.
Since Santos, Congress has amended the money laundering statute to define "proceeds" to mean "any property derived from or obtained or retained, directly or indirectly, through some form of unlawful activity, including the gross receipts of such activity." See 18 U.S.C. § 1956(c)(9). However, because the conduct at issue here occurred before the amendment, the Court does not rely upon the amendment in this case. See, e.g., United States v. Sahabir, 880 F.Supp.2d 377, 380 n. 2 (N.D.N.Y.2012).
