JOHN W. LUNGSTRUM, District Judge.
On August 12, 2009, an Indictment was filed charging defendant Wildor Washington Sr. and Emma Jean Holmes with various federal offenses arising from an alleged scheme to purchase real estate using fraudulently obtained mortgages. On February 26, 2010, a jury convicted Mr. Washington on four of these felony charges: conspiracy to defraud, wire fraud in violation of 18 U.S.C. § 1343, commercial carrier fraud in violation of 18 U.S.C. § 1341, and money laundering in violation of 18 U.S.C. § 1956.
The testimony at trial established that Mr. Washington acted as mortgage broker for Ms. Emma Jean Holmes' purchase of three residential properties in Johnson County, Kansas.
However, during the course of an Internal Revenue Service investigation into these matters, Special Agent Henry Herron interviewed Mr. Washington, Sr.
Yolanda Carrington owned a branch of Amstar Mortgage in the St. Louis metropolitan area, specifically Creve Coure. In April 2004, Mr. Washington, Sr.,
Ms. Holmes purchased three properties, in all of which James and Doris Moser had
In July 2004, Ms. Holmes purchased a home at 7917 155th Place, for $314,000. The original price for the property set forth in the real estate contract was $305,000, but on the day of closing, Ms. Holmes agreed to pay $314,000 instead, and she and the sellers signed an addendum to the contract providing for the change. National City Mortgage provided Ms. Holmes with the loan to purchase the property, and Denise Robinett of Kansas Secured Title served as the closing agent for the sale of the property. Mr. Washington's signature appeared on the loan application as the broker. The application also listed Amstar Mortgage in St. Louis, Missouri, despite the fact that Mr. Washington never received permission to broker loans under the Amstar name. However, Mr. Washington testified at trial that he never wrote a loan under Amstar. He also testified that he had neither assisted in the preparation of the application nor had signed the application.
Ms. Robinett testified that Ms. Holmes, Mr. Washington and Mr. Moser, the seller, were all present at Ms. Holmes' closing. She explained that the mortgage broker (Mr. Washington) is typically present at closing. However, she found Mr. Moser's presence to be unusual, as the buyers and sellers typically sign the relevant documents at different times (i.e., there is a "buyer's closing" and a "seller's closing"). Moreover, she testified that she overheard Mr. Washington and Mr. Moser bickering about money at the closing. She also testified that she had Mr. Washington sign the loan application in her presence at closing. Mr. Washington denied having signed the loan application.
Ms. Robinett also explained that Mr. Washington did not receive a commission at closing on the sale, as would normally have occurred. Instead, he was required to pay the lender $1,962.50. Heritage Financial Investments, a company owned by Bill Washington, Jr., wrote a check to Kansas Secured Title for payment to the lender. However, the check was dishonored for insufficient funds, and the sellers instead agreed to pay the lender the money the broker owed. Ms. Robinett testified that she had the seller's promise to pay set forth in a written agreement because she found it unusual for the seller to offer to do so. Moreover, the sellers received nearly $40,000 from the sale of the property despite the fact that the property was in foreclosure.
In September 2004, Ms. Holmes purchased a home on Birch Street, for $360,000. People's Choice Home Loan, Inc. provided Ms. Holmes with the loan to purchase the property, and Denise Robinett again served as the closing agent. Thomas Carlson's signature appeared on the loan application as the broker. Off to the side, the application listed as his employer Amstar Mortgage, in Leawood, Kansas. Ms. Carrington and Mr. Greer each testified that they were not aware of an Amstar branch located in Leawood, Kansas. Mr. Carlson was not present at closing, and Ms. Robinett testified that she did not know him. She explained that she had worked on the sale with "Amstar," represented by Washington Jr. and Washington Sr.
During the closing on this property, Kansas Secured Title drafted a check payable to South and Associates, a law firm representing the lender of the sellers, for $312,617.80, to pay off the mortgage incurred by the sellers, as well as foreclosure costs. This check was paid from the proceeds of the loan obtained by Ms. Holmes. The government charged Mr. Washington and Ms. Holmes with money laundering in connection with this financial transaction.
Ms. Robinett testified that the lender for the sale of this property required as a condition of the loan that the closing documents be sent to the lender immediately after closing.
In September 2004, Ms. Holmes purchased a home at 7864 W. 155th Place, for $365,000.
This application listed Premier Mortgage Funding next to Ms. Carrington's name as the employer, but Ms. Carrington and Mr. Greer each testified that Ms. Carrington was still associated with Amstar Mortgage on the date the application was completed. Ms. Asmus stated that she did not know Ms. Carrington and that she was not present at closing. She had received the loan application already signed. Ms. Asmus explained that she understood Amstar Mortgage to be the broker, and that she worked with Mr. Washington, Sr. and his "assistant," Ima Bennett, on the sale of the property.
In the course of attempting to close on the loan, Ms. Asmus faxed a title commitment
Mr. Washington moves for a new trial, alleging a violation of the government's disclosure obligations under Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Federal Rule of Criminal Procedure 33 provides that "the court may vacate any judgment and grant a new trial if the interest of justice so requires." Fed.R.Crim.P. 33. "A motion for a new trial is not regarded with favor and is only issued with great caution." United States v. Herrera, 481 F.3d 1266, 1269-70 (10th Cir.2007) (citing United States v. Trujillo, 136 F.3d 1388, 1394 (10th Cir.1998)). The decision whether to grant a motion for new trial is committed to the sound discretion of the trial court. United States v. Stevens, 978 F.2d 565, 570 (10th Cir.1992).
As for Mr. Washington's motion for judgment of acquittal, the Court must uphold the jury's verdict of guilty if "`any rational trier of fact could have found the essential elements of the crime[s] beyond a reasonable doubt.'" United States v. Urbano, 563 F.3d 1150, 1156 (10th Cir.2009), cert. denied, ___ U.S.___, 130 S.Ct. 434, 175 L.Ed.2d 297 (2009) (quoting United States v. Doddles, 539 F.3d 1291, 1293 (10th Cir.2008)). The court must "`ask only whether taking the evidence-both direct and circumstantial, together with the reasonable inferences to be drawn therefrom-in the light most favorable to the government, a reasonable jury could find the defendant guilty beyond a reasonable doubt.'" United States v. Erickson, 561 F.3d 1150,
In order to establish a Brady violation, a defendant must demonstrate that (1) the prosecution suppressed evidence, (2) the evidence was favorable to the defendant, and (3) the evidence was material. United States v. Combs, 267 F.3d 1167, 1172 (10th Cir.2001) (citing United States v. Quintanilla, 193 F.3d 1139, 1146 (10th Cir.1999)). The government argues that the defendant is not entitled to a new trial both because (1) the suppressed evidence could not have been used to impeach and therefore was not favorable to the defendant and (2) the evidence was not material. The Court concludes that the evidence was not material and, as a result, denies the defendant's Motion for New Trial.
The government concedes that the relevant evidence had been suppressed by the government, albeit inadvertently. According to the government, a special agent for the Department of Housing and Urban Development (HUD) spoke with two of the prosecution's trial witnesses, Denise Robinett and Colleen Asmus, and documented these discussions in reports subsequently prepared. The reports were not provided to Mr. Washington prior to trial, apparently because the prosecution was not aware of their existence until after the trial had concluded. These reports form the basis for Mr. Washington's Brady claim. However, the government concedes the irrelevance of its lack of knowledge concerning the existence of the reports, and the Court likewise recognizes that the suppression element of Mr. Washington's Brady claim has been satisfied. See Smith v. Sec'y of New Mexico Dept. of Corr., 50 F.3d 801, 823 (10th Cir.1995).
The second part of Brady "requires proof the evidence in question was exculpatory, or favorable, to the defendant." Id. at 825. Evidence that could be used to impeach a trial witness also falls within Brady. See United States v. Headman, 594 F.3d 1179, 1183 (10th Cir.2010). According to Mr. Washington, the HUD special agent's report concerning the interview with Ms. Robinett could have been used to impeach her testimony at trial and therefore qualifies as "favorable" evidence that the government was obligated to disclose.
In the report, the special agent documented Ms. Robinett as having stated during the interview that Mr. Washington and James Moser, the seller, spoke by telephone at the "closings." At trial, however, Ms. Robinett testified that both Mr. Washington and Mr. Moser were at Ms. Holmes' closing, explaining that she found this unusual. In addition, she testified that Washington had been "bickering" with Mr. Moser about money at the closing. She also stated that Washington had signed the loan application for the purchase of the relevant property at the closing itself.
Mr. Washington contends that the special agent's report could have been used to impeach Ms. Robinett's trial testimony
Under Mr. Washington's interpretation of this language in the report, Ms. Robinett stated during the interview that Washington and Moser were conversing over the phone during the buyer's closing. As they could not have both been at the buyer's closing if they were on the phone with one another, this prior statement from Ms. Robinett could impeach her trial testimony. As Mr. Washington has asserted, if they were speaking telephonically, Ms. Robinett might not have been privy to their conversation at all, let alone have known whether they were bickering about money. Moreover, Mr. Washington gleans from the report that it may have been Mr. Moser rather than Mr. Washington who was present at the closing.
The government interprets the language differently. Ms. Robinett testified at trial that there are two closings for such real estate transactions: a buyer's closing and a seller's closing. The report actually stated that Moser was on the phone with Washington during his closings, and the government interprets this to mean that they were on the telephone during Mr. Moser's closing (i.e. the seller's closing). Thus, they could still have both been present at the buyer's closing, the closing at which Ms. Robinett testified Mr. Moser and Mr. Washington were both present.
After consideration of the government's arguments, the Court nonetheless concludes that the special agent's report can be categorized as "favorable" evidence under Brady. The report would have provided Mr. Washington with a basis to attack the credibility of Ms. Robinett during cross-examination, regardless of how the jury might ultimately have viewed the statement contained in the agent's report. Thus, the Court finds this element satisfied as well.
The third part of a Brady claim "requires proof that the evidence was `material
In light of the evidence presented at trial, the Court agrees with the government that the statements contained in the special agent's report would not have produced a different result in this case. First, if the defendant cross-examined Ms. Robinett concerning the statement in the report in order to impeach her credibility, Ms. Robinett's memory likely would have been refreshed as to other incriminating details contained in the report about which Ms. Robinett had not testified.
In his Motion for Judgment of Acquittal, Mr. Washington asserts that the government presented insufficient evidence to support his conviction on any of the counts. Mr. Washington asserts this argument generally as to all counts, and then presents two specific arguments concerning his convictions for common carrier fraud and for money laundering. The Court will therefore address in turn the evidence presented for the charges of conspiracy and wire fraud and then the merits of Mr. Washington's legal arguments concerning common carrier fraud and money laundering.
Count 1 of the Indictment charged Mr. Washington with conspiring to commit wire and commercial carrier fraud, in violation of 18 U.S.C. § 371. To obtain a conviction for conspiracy under 18 U.S.C. § 371, the government must prove (1) the defendant's agreement with another person to violate the law; (2) the defendant's knowledge of the essential objectives of the conspiracy; (3) the defendant knowingly and voluntarily took part in the conspiracy; and (4) the coconspirators were interdependent. United States v. Rahseparian, 231 F.3d 1267, 1272 (10th Cir.2000). "Simply stated," the government had to prove that Mr. Washington had "an explicit or implicit agreement with [his coconspirators]" to commit wire and common carrier fraud. Id. See also United States v. Chavis, 461 F.3d 1201, 1208 (10th Cir. 2006).
"To prove an agreement, the government need not offer direct proof of an express agreement on the part of the defendant. Instead the agreement may be informal and may be inferred entirely from circumstantial evidence." United States v. Pulido-Jacobo, 377 F.3d 1124, 1129 (10th Cir.2004) (quoting United States v. Lang, 364 F.3d 1210, 1223 (10th Cir.2004), vacated on other grounds by Lang v. United States, 543 U.S. 1108, 125 S.Ct. 986, 160 L.Ed.2d 1034 (2005)). "Although `mere association' with conspirators is insufficient to support a conspiracy conviction, `frequent contacts' among conspirators and `their joint appearances at transactions and negotiations' tend to show the existence of an agreement." United States v. Aragon, 141 F.3d 1186, 1998 WL 166059, at *3 (10th Cir. Apr. 10, 1998) (table op.) (quoting United States v. Evans, 970 F.2d 663, 669 (10th Cir.1992)); see also United States v. Kelley, 187 Fed.Appx. 876, 884 (10th Cir.2006) ("Although no government witness testified about an express agreement between [the co-defendants], the prosecution presented ample evidence to allow the jury to infer reasonably that such an agreement existed."). Under the essential objective element, "the government must prove that the alleged conspirator had a general awareness of both the scope and the objective of the enterprise." Pulido-Jacobo, 377 F.3d at 1130 (quoting Evans, 970 F.2d at 670). A jury may presume that "a defendant is a knowing participant in the conspiracy when he acts in furtherance of the objective of the conspiracy." United States v. Johnson, 42 F.3d 1312, 1319 (10th Cir.1994); United States v. Carter, 130 F.3d 1432, 1440 (10th Cir.1997). "Interdependence exists where each coconspirator's actions constitute essential and integral steps toward the realization of a common, illicit goal." Pulido-Jacobo, 377 F.3d at 1131 (quoting Carter, 130 F.3d at 1440).
Mr. Washington generally challenges whether the government presented sufficient evidence to convict him of conspiracy to defraud, without specifying any particular element he believes the government failed to establish. Nonetheless, the Court has considered the evidence presented by the government and concludes that there existed considerable evidence from which the jury could reasonably have found Mr. Washington was a member of the conspiracy charged. First, Special Agent Henry Herron testified that Mr. Washington admitted to him that he had knowingly assisted Ms. Holmes in preparing loan applications which he knew to contain false information. For example, Mr. Herron testified that Mr. Washington explained to him that they had purposely marked on the applications that each would serve as Ms. Holmes' primary residence, despite the fact that she never intended to live in any of the homes, in order to make Ms. Holmes appear a more desirable
The government charged Mr. Washington with wire fraud in connection with the sale of the property at 7864 W. 155th Place. To establish that Mr. Washington committed wire fraud, the government had to prove: (1) Mr. Washington engaged in a scheme to defraud; (2) he did so with the intent to defraud; and (3) use of interstate wire or radio communications to execute the scheme. See United States v. Lewis, 594 F.3d 1270, 1274 (10th Cir. 2010). See also United States v. Wittig, 575 F.3d 1085, 1093 (10th Cir.2009). As explained in detail above, from the testimony given by Special Agent Herron, as well as Ms. Robinett and Ms. Asmus, the jury could readily conclude that Mr. Washington was involved in a scheme to defraud with the requisite intent.
A conviction under the mail fraud statute for what was described at trial as common carrier fraud required the government to establish: (1) the devising of a scheme or artifice to defraud or for obtaining money by means of false or fraudulent pretenses, representations or promises; (2) the specific intent to defraud; and (3) the use of the United States mails or a commercial carrier to execute the scheme. See United States v. Kennedy, 64 F.3d 1465, 1475 (10th Cir.1995). See also 18 U.S.C. § 1341 (1994).
To support a separate conviction for common carrier fraud, the government presented the testimony of Ms. Robinett, the closing agent for the sale of the Birch property who actually used FedEx for the purpose of transmitting the closing documents to the lender pursuant to the loan agreement. Ms. Robinett explained that it was a standard policy within the loan industry for the signed closing documents immediately to be sent overnight to the lender after closing occurred. She testified that the transmission of these documents was a necessary step in the loan process, since the lender required it as a condition of the loan. Thus, as with the charge of wire fraud, the use of a common carrier in execution of the scheme was certainly a foreseeable consequence, regardless
The Court thus turns to the question of whether transmitting the documents after Ms. Holmes received the loan and title to the property could still be deemed to be in execution of a scheme to defraud. A mail fraud conviction requires not only that the defendant "caused" the mails, or a common carrier, to be used, but also that the transmission was "sufficiently closely related" to the scheme to defraud. Maze, 414 U.S. at 399, 94 S.Ct. 645. Thus, "the mailing must be `for the purpose of executing the scheme.'" Id. at 400, 94 S.Ct. 645 (quoting Kann v. United States, 323 U.S. 88, 94, 65 S.Ct. 148, 89 L.Ed. 88 (1944)). To satisfy this "purpose" requirement, the transmission must be "`part of the execution of the scheme as conceived by the perpetrator at the time.'" United States v. Redcorn, 528 F.3d 727, 738 (10th Cir.2008) (quoting Schmuck v. United States, 489 U.S. 705, 715, 109 S.Ct. 1443, 103 L.Ed.2d 734 (1989)). However, the scheme need not "`contemplate the use of the mails as an essential element.'" Maze, 414 U.S. at 400, 94 S.Ct. 645 (quoting Pereira v. United States, 347 U.S. 1, 8-9, 74 S.Ct. 358, 98 L.Ed. 435 (1954)). As the 10th Circuit has explained: "[t]he defendant need not have made the transmission personally, merely caused it to be made. It need not be at the heart of a scheme, nor necessary or even helpful for its success; it need not itself be false or deceptive." Redcorn at 738. Rather, it will be considered to be for the purpose of furthering a scheme to defraud if "`the transmission is incident to the accomplishment of an essential part of a scheme.'" Id. (quoting United States v. Mann, 884 F.2d 532, 536 (10th Cir.1989)).
Generally, a transmission occurring after the scheme has reached fruition cannot be considered to play an essential role in the fraudulent scheme. See Redcorn, 528 F.3d at 741 (explaining that, "as a general proposition," use of the mails or wire after the scheme has reached fruition "will not constitute grounds for a conviction") (quoting United States v. Taylor, 789 F.2d 618, 620 (8th Cir.1986)). As discussed in further detail below, there are exceptions to this general rule, yet the timing of the transmissions still retains significance and therefore it must be determined when the scheme was complete. Here, the indictment stated that the purpose of the scheme was to obtain home loans by submitting false and fraudulent loan applications, in order to enrich the perpetrators. If the fraudulent scheme was to procure the loans, then the scheme reached fruition only once all the requirements for obtaining the loan were satisfied. Although Ms. Holmes received the loan money and title to the property before the mailing occurred, Ms. Robinett testified that one of the requirements of the loan was the sending of the closing documents to the lender afterwards. Consequently, not all of the loan requirements were satisfied when Ms. Holmes received the loan money and title to the property. Rather, per the agreement, the "loan" was complete only once the documents were sent and it was at this point that the scheme reached fruition. See United
As the closing documents were required to be sent in order for the loan to be obtained, the transmission of the documents would have been "contemplated from the outset by a participant in the scheme as a necessary step." See United States v. McDougal, 137 F.3d 547, 555 (8th Cir.1998). Similarly, in McDougal, the defendant had obtained a Small Business Administration loan, having misrepresented the purpose of the loan, and asserted that the mailing of a Form 1031 to the Small Business Administration subsequent to receiving the loan money could not form the basis of a mail fraud charge. Id. at 555. She argued that the scheme reached fruition when she received the loan money and the mailing therefore could not have been in execution of the scheme. Id. The Eighth Circuit concluded that it was in execution of the scheme, explaining that the government had presented evidence that the mailing was "part of the scheme from the outset." Id. There was testimony, for example, that the Form had to be sent in to demonstrate the propriety of the loan to the Small Business Administration, and that the Form was part of the documentation prepared during origination of the loan and present at closing for review. Id. Mailing the form was necessary to permit the perpetrator to "retain the fruits of [the] fraud"—it was a required step in the process, and thus would have been contemplated by the perpetrator from the outset. Id. Likewise, Mr. Washington and Ms. Holmes would have viewed Ms. Robinett's transmission of the closing documents as a necessary step in the process of obtaining the loans by fraudulent means. As a result, the use of the common carrier was part of the execution of the scheme to defraud as the perpetrators conceived it. See also Fiorito, 2009 WL 3064752, at *6 (finding that the mailing of HUD-1 forms after closing was "incident to an essential part" of a mortgage fraud scheme, noting that "the lender would have caused problems for the title company if the lender had not promptly received a signed HUD-1").
In addition, the use of FedEx may be deemed in furtherance of the scheme even if the scheme was complete upon Ms. Holmes receiving the loan money and title to the property. Transmissions occurring after completion of a fraudulent scheme may still be considered to be in execution of the scheme if "designed to lull the victims into a false sense of security, postpone their ultimate complaint to the authorities, and therefore make the apprehension of the defendants less likely than if no mailings had taken place." Maze, 414 U.S. at 403, 94 S.Ct. 645. See also United States v. Lane, 474 U.S. 438, 451-52, 106 S.Ct. 725, 88 L.Ed.2d 814 (1986). Here, the sending of closing documents via FedEx to the lender after closing lulled the lender into a false sense of security regarding the soundness of the loans. Had the documents not been sent as required, the lender may have been alerted to the possibility of fraudulent activity. See Lane, 474 U.S. at 453, 106 S.Ct. 725 (concluding that the mailing of proof-of-loss forms after receipt of insurance payments lulled the insurer into a false sense of security because the insurer might otherwise have discovered the fraud). Thus, the government presented sufficient evidence that Mr. Washington caused the transmission of the closing documents via a common carrier for the purpose of executing the scheme to defraud.
Mr. Washington cites to two primary cases in support of his assertion that the use of FedEx to send the closing documents
Maze and Redcorn are both distinguishable in that Mr. Washington and Ms. Holmes were required to send the closing documents to the lender in order to obtain the loan, regardless of the fact that this was to occur after the loan money had been disbursed. As this was a requirement to obtain the loan, the post-closing mailing would have been contemplated by Mr. Washington and Ms. Holmes at the time that they sought to obtain the loan. Moreover, in both Maze and Redcorn, it was noted that the transfers were not for the purpose of concealing the fraudulent activity. See Maze, 414 U.S. at 403, 94 S.Ct. 645 (explaining that the mailings were not intended to lull the victims into a false sense of security or postpone detection because the mailings from the motel owners to the bank actually increased the likelihood of detection) and Redcorn, 528 F.3d at 741-42 (noting that no evidence had been presented that the wire transfers were necessary to conceal the fraud and pointing out that the transfers actually made the fraud even more obvious). Thus, neither Maze nor Redcorn compel a different result than that which the Court reaches.
The government charged Mr. Washington with money laundering under 18 U.S.C. § 1956(a)(1)(A)(i), "which is aimed at money laundering which promotes the carrying on of an unlawful activity." U.S. v. McIntosh, 124 F.3d 1330, 1335-36 (10th Cir.1997). Section 1956(a)(1)(A)(i) provides in relevant part:
The government claims that Mr. Washington violated this provision with respect to the real estate transaction concerning the Birch property. To establish Mr. Washington's guilt under this provision, the government had to prove beyond
In addition to asserting that the government presented insufficient evidence to convict him of this charge,
The "specified unlawful activity" alleged here was mail fraud, in violation of 18 U.S.C. § 1341. See United States v. Caldwell, 560 F.3d 1214, 1221 (10th Cir.2009) ("Specified unlawful activity is defined to include wire fraud") (citing 18 U.S.C. § 1956(c)(7)(A)). According to the government, in submitting falsified loan applications, Ms. Holmes and Mr. Washington committed mail fraud, and they obtained proceeds of this illegal activity in the form of Ms. Holmes' loan. For Ms. Holmes to receive the loan, however, the lender required that the seller's mortgage be paid off, and the loan proceeds were therefore used to send $312,617.80 to South & Associates to pay off the mortgage. The government argues that this payment of the seller's mortgage was thus made in promotion of the fraud. However, as Mr.
In United States v. Edgmon, 952 F.2d 1206 (10th Cir.1991), the Tenth Circuit considered a double jeopardy challenge to a money laundering conviction under § 1956, and after reviewing the legislative history of § 1956, concluded as follows:
Id. at 1213-14.
In United States v. Johnson, the Tenth Circuit reviewed the holding of Edgmon, explaining that it and United States v. Lovett, 964 F.2d 1029 (10th Cir.1992), addressing § 1957, "suggest that Congress intended the money-laundering statutes to apply to transactions occurring after the completion of the underlying criminal activity." Johnson, 971 F.2d at 569. With regard to § 1957, the Tenth Circuit explained that Congress could have intended the statute to apply "when the underlying criminal activity occurs simultaneously with a monetary transaction with the proceeds of the activity," but that the statutory language and legislative history suggested instead that "Congress targeted only those transactions occurring after proceeds have been obtained from the underlying unlawful activity." Id. In applying this rule, the Court concluded that wire transfers at issue in Johnson could not have been transactions in criminally derived property under §1957, as the same transfers were alleged to have constituted the underlying criminal activity (wire fraud). In other words, the defendant could not have engaged in money laundering where the wire transfers giving rise to the wire fraud charge were the same transfers that the government claimed qualified as a laundering transaction. As the Seventh Circuit has explained in analyzing Johnson, "money laundering criminalizes a transaction in proceeds, not the transaction that creates the proceeds." United States v. Mankarious, 151 F.3d 694, 705 (7th Cir.1998). Thus, there must be a discrete predicate crime that produced the proceeds, an act distinct from the conduct constituting money laundering.
Consequently, the Court must assess whether the government has provided evidence