United States v. Souza , 749 F.3d 74 ( 2014 )

United States Court of Appeals
For the First Circuit
No. 12-1949
UNITED STATES OF AMERICA,
Appellee,
v.
RICHARD SOUZA,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Richard G. Stearns, U.S. District Judge]
Before
Howard, Ripple,* and Thompson,
Circuit Judges.
Rebecca A. Jacobstein, with whom Office of Appellate Advocacy
was on brief, for appellant.
Randall E. Kromm, Assistant United States Attorney, with whom
Carmen M. Ortiz, United States Attorney was on brief, for appellee.
April 18, 2014
*
Of the Seventh Circuit, sitting by designation.
HOWARD, Circuit Judge. Richard Souza appeals from his
conviction and sentence for structuring financial transactions to
evade reporting requirements. We affirm.
I. Background
In 2004, Souza was hired to repair the roof of Lawrence
Burtchaell, an elderly widower. The two developed a close
relationship and soon Souza was spending several days a week at
Burtchaell's home.
During this time period, Burtchaell's acquaintances began
noticing symptoms of mental decline. Usually well dressed,
Burtchaell began looking disheveled. He also had difficulty
remembering neighbors' names, he would get lost walking around the
neighborhood, and one time he flooded his house because he forgot
to turn off the bath. Burtchaell's diminishing mental capacity was
also detected by his investment advisor, Mark Friese, who
registered concern with his manager.
In 2006, Souza persuaded Burtchaell to put up money to
purchase real estate in Maine. Souza told Burtchaell and Friese
that Burtchaell was a partner in the investment, but revealed
neither that the other partners were Souza's sons, nor that
Burtchaell was providing all of the purchase money. Though Souza
promised that in a few weeks Burtchaell would recoup his money with
interest, Burtchaell never saw any return on the investment.
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After closing the deal, Burtchaell took out an $89,000
loan on the property and wired almost all of the proceeds to
Souza's account with Sovereign Bank. In the following months,
Souza withdrew all of these funds, always in increments of less
than $10,000. For instance, on June 15, 2006, within a period of
an hour and a half, Souza withdrew $54,000 in six separate
installments of $9000 at five different Sovereign branches.
Banks are required to file a report when an individual
withdraws $10,000 or more. 31 U.S.C. § 5313(a); 31 C.F.R.
§ 1010.311. For purposes of reporting, banks aggregate an
individual's daily transactions across all branches. 31 C.F.R.
§ 1010.313(b). Thus, Sovereign treated Souza's six June 15
withdrawals as one $54,000 withdrawal and filed a report.
Souza was charged with structuring his June 15
transactions for the purpose of evading the reporting requirements,
in violation of 31 U.S.C. § 5324(a)(3). Souza claimed that he had
been forced to make multiple withdrawals of $9000 because each
Sovereign branch ran out of money. To rebut this claim and to show
Souza's intent to evade the reporting requirements, the government
presented evidence of the Maine transaction, arguing that Souza
wished to avoid drawing attention to his withdrawals because they
were composed of ill-gotten funds. Souza was convicted and
sentenced. He appeals.
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II. Discussion
Souza claims violations of his rights to a speedy trial,
to effective assistance of counsel, and to due process. He also
argues that the district court made erroneous evidentiary rulings
and sentencing errors. None of these arguments is persuasive.
A. Speedy Trial
Souza contends that he was denied his speedy trial right.
That right derives from two sources: the Speedy Trial Act (STA),
18 U.S.C. §§ 3161-74, and the Sixth Amendment.
1. STA
The STA places time limits on two periods in criminal
proceedings: the period between arrest and indictment, and the
period between indictment and trial. Id. § 3161(b)-(c). In
computing the amount of time that has elapsed during these periods,
the STA permits courts to exclude certain intervals. Id.
§ 3161(h).
Souza alleges STA violations in both periods. We review
STA challenges de novo as to legal rulings and for clear error as
to factual findings. United States v. Valdivia, 680 F.3d 33, 38
(1st Cir.), cert. denied, 133 S. Ct. 565 (2012). Overall, however,
we review for abuse of discretion decisions to exclude intervals of
time from the STA count. United States v. Gates, 709 F.3d 58, 64
(1st Cir.), cert. denied, 134 S. Ct. 264 (2013).
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a. Between Arrest and Indictment
The STA calls for indictment no later than thirty days
after arrest. 18 U.S.C. § 3161(b). Souza was arrested on August
12, 2010 and was indicted on September 30. He argues that only
fourteen of these forty-nine days are excludable, leaving thirty-
five days -- five more than the STA permits. Although "delay
resulting from any pretrial motion" is excludable, id.
§ 3161(h)(1)(D), including up to thirty days "during which any
proceeding concerning the defendant is actually under advisement by
the court," id. § 3161(h)(1)(H), Souza claims that no excludable
time resulted from a joint motion filed by the parties on August
20. He makes three points, none of which is availing.
First, Souza argues that the joint motion, which sought
"enlargement of time" to obtain an indictment, requested relief
that the court was incapable of granting. Souza did not make this
argument to the district court. Even if he had, while it is true
that courts cannot "enlarge" the time limits established by the
STA, courts can "exclude" certain periods in the interest of
justice, see id. § 3161(h)(7)(A), and the joint motion, was
functionally equivalent to an anticipatory motion to exclude time.
Souza does not and could not contend that the purely semantic
difference prejudiced the proceedings in any way.
Second, Souza contends that the exclusion of time sought
by the joint motion was not in the interest of justice. But it is
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irrelevant whether the motion's reasons for seeking exclusion had
merit: time was excludable not because the court granted the joint
motion, but because the court had the motion under advisement.
Third, Souza asserts that the toll that stops the clock
while a court considers a pretrial motion should not apply when the
motion seeks a continuance. Otherwise, says Souza, a party intent
on excluding time could obtain that result simply by filing a
motion. But in United States v. Richardson, we rejected this
argument and held that a motion to continue can toll the speedy
trial clock. 421 F.3d 17, 31 (1st Cir. 2005).
Of course, as we cautioned in Richardson, "neither
counsel nor district courts may employ measures for excluding time
from the speedy trial clock that impermissibly frustrate the STA's
purpose of protecting the shared interest of criminal defendants
and the public in 'bringing criminal charges to the bar of justice
as promptly as practicable.'" Id. at 29 (quoting United States v.
Hastings, 847 F.2d 920, 923 (1st Cir. 1988)). As was true of the
motion to continue in Richardson, the joint motion here "was not
filed as a pretext to avoid the consequences of an STA violation,
but was filed for the legitimate purpose of seeking a continuance
in the interest of justice." Id. Counsel for both Souza and the
government sought the continuance to carry on preexisting plea
negotiations and because each had a long-standing vacation planned.
Since we have expressly left open the issue whether periods of plea
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negotiation can properly be excluded, United States v.
Scantleberry-Frank, 158 F.3d 612, 615 (1st Cir. 1998), a motion to
continue made on that basis, while not guaranteed to succeed, will
not be deemed pretextual on that ground alone. Similarly, because
we have held that "[a] reasonable vacation constitutes a plausible
basis for excluding a relatively brief period of time," Gates, 709
F.3d at 67, a motion to continue made on that basis is also not
necessarily pretextual.
Nor does the fact that Souza objected to the joint motion
render it pretextual. After all, "defense counsel has the power to
seek an STA continuance without first informing his client or
obtaining his client's personal consent." Id. at 66. Souza's
objection is merely "a datum for the district court to consider in
its analysis of the ends of justice," and must be measured in light
of both attorneys' legitimate reasons for requesting a continuance.
Id.
Because the STA permits a court to exclude up to thirty
days while a motion is under advisement, 18 U.S.C. § 3161(h)(1)(D),
(H), the joint motion tolled the speedy trial clock beginning on
August 20 and continuing through September 19. This exclusion
reduces the counted number of days between the August 12 arrest and
the September 30 indictment below thirty, and therefore within the
limits of the STA.
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b. Between Indictment and Trial
The STA calls for trial no later than seventy days after
indictment. 18 U.S.C. § 3161(c)(1). Souza was indicted on
September 30, 2010 and his trial began on February 27, 2012. He
argues that only 201 of these 515 days were excludable, leaving 314
days -- 244 more than the STA permits.
"[E]xclusions of time not specifically challenged in a
motion to dismiss are deemed waived." Gates, 709 F.3d at 68
(emphasis added). Souza did not file a motion to dismiss
challenging specific intervals in the pretrial period. Instead,
through pro se filings, he protested generally about delay. On
appeal, he avers that these general protestations were meant to
convey that there were no excludable intervals anywhere in the
pretrial period. This mischaracterizes his filings, which
comprised vague complaints of delay and accusations against the
court, the government, and his attorneys for colluding to impair
his speedy trial right. Even when viewed as charitably to Souza as
possible, his assertions did not in any event challenge exclusions
of time during the pretrial period, thus waiving such challenges on
appeal.1
1
Because we conclude that Souza's pro se filings failed to
preserve challenges to specific exclusions of time, we need not
address whether the district court authorized the type of "hybrid
representation" that would permit Souza to make a pro se filing
while represented by counsel.
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2. Sixth Amendment
Souza also contends that the delay between his arrest and
trial violated the Sixth Amendment's guarantee of a speedy trial.
We review the district court's Sixth Amendment decision for abuse
of discretion. United States v. Santiago-Becerril, 130 F.3d 11, 21
(1st Cir. 1997). To determine whether a Sixth Amendment violation
has occurred, a court balances four factors: "(1) the length of the
delay, (2) the reasons for the delay, (3) the defendant's assertion
of his right, and (4) prejudice to the defendant resulting from the
delay." United States v. Dowdell, 595 F.3d 50, 60 (1st Cir. 2010)
(citing Barker v. Wingo, 407 U.S. 514, 530 (1972)).
a. Length of Delay
Length of delay, in addition to factoring into the
balance, serves as a triggering mechanism for review, since a court
will conduct a Sixth Amendment analysis only after a defendant has
shown that the period of time "has crossed the threshold dividing
ordinary from presumptively prejudicial delay." Doggett v. United
States, 505 U.S. 647, 651-52 (1992) (internal quotation marks
omitted). Generally, delay becomes prejudicial around the one-year
mark. See id. at 652 n.1; Dowdell, 595 F.3d at 61.
Here, roughly eighteen months passed between Souza's
arrest in October 2010 and his trial in February 2012. For
purposes of analysis, we will assume, without deciding, that the
eighteen-month delay establishes a presumption of prejudice,
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triggering further Sixth Amendment review. See, e.g., Santiago-
Becerril, 130 F.3d at 21 (assuming that fifteen-month delay was
presumptively prejudicial).
As for its place in the balancing test, a lengthier delay
raises the likelihood that the defendant suffered prejudice.
Doggett, 505 U.S. at 652. While the delay in Souza's case was not
at the extreme end of the spectrum, see Barker, 407 U.S. at 534
("It is clear that the length of delay between arrest and trial --
well over five years -- was extraordinary."); but see United States
v. Munoz-Franco, 487 F.3d 25, 61 (1st Cir. 2007) ("The five years
that elapsed between indictment and trial is a troublesome length
of time. Nonetheless, our inquiry has revealed no constitutional
violation."), we have held that a fifteen-month delay is
"[a]rguably . . . long enough to tip the scales slightly in favor
of [the defendant's speedy trial] claim," Santiago-Becerril, 130
F.3d at 22. We will assume for the sake of argument that the
eighteen-month delay in Souza's case weighs in his favor, but, as
we explain below, not heavily enough to overcome the countervailing
weights of the second and fourth factors.
b. Reasons for Delay
Of the four factors in the analysis, examination of the
reasons for delay is the "focal inquiry." Munoz-Franco, 487 F.3d
at 60 (internal quotation marks omitted). We must first determine
if the delays were attributable to Souza or to the government.
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"[D]elays sought by [defense] counsel are ordinarily attributable
to the defendants they represent." Vermont v. Brillon, 556 U.S.
81, 85 (2009). For those delays caused by the government, we must
evaluate the underlying reasons:
A deliberate attempt to delay the trial in
order to hamper the defense should be weighted
heavily against the government. A more
neutral reason such as negligence or
overcrowded courts should be weighted less
heavily but nevertheless should be considered
since the ultimate responsibility for such
circumstances must rest with the government
rather than with the defendant. Finally, a
valid reason, such as a missing witness,
should serve to justify appropriate delay.
Barker, 407 U.S. at 531 (footnote omitted).
This factor weighs against Souza. Much of the delay
resulted from his actions or those of his counsel. Between his
arrest and the appointment of his ultimate trial counsel, Souza
twice violated the terms of his release, necessitating further
proceedings, and thrice obtained new counsel, who sought
continuances on several occasions. Additionally, Souza filed two
pretrial motions, which further delayed the proceedings.
The delays attributable to the government were not
motivated by a deliberate attempt to defer the trial. Some were
traceable to the fact that replacement counsel for the government
needed time to gain familiarity with the case after the initial
counsel left the U.S. Attorney's Office. Others resulted from the
medical leave of an IRS agent who was needed to produce certain
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documents. These fall into the category of valid reasons that
justify an appropriate delay. Further appropriate delay occurred
when the case was transferred to a new district court judge after
the initial judge retired.
Once the trial date was set, it was continued twice.
First, the government moved for a continuance because counsel had
another trial and an appellate argument scheduled during the same
month as Souza's trial. Thereafter, Souza's counsel moved to
continue because he had a conflict with the new trial date. All in
all, the government, as compared to Souza and his counsel, played
a minimal role in delaying the trial.
c. Defendant's Assertion of the Right
From the outset, Souza made it clear that he wished to
proceed to trial as quickly as possible. This factor weighs in his
favor, but not enough to overcome the weight that the second and
fourth factors carry against him.
d. Prejudice Resulting from the Delay
Prejudice is assessed in light of the interests that the
speedy trial right was designed to protect: "(i) to prevent
oppressive pretrial incarceration; (ii) to minimize anxiety and
concern of the accused; and (iii) to limit the possibility that the
defense will be impaired." Barker, 407 U.S. at 532.
The last of these interests is the most serious, as it
implicates "the fairness of the entire system," and we begin with
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it here. Id. Souza argues that evidence and testimony of
witnesses was lost or hampered as a result of the delay between his
criminal conduct, which occurred in 2006, and his trial, which
occurred in 2012. But most of this period is irrelevant for speedy
trial purposes. The speedy trial right "attaches upon arrest or
indictment, whichever occurs first," Santiago-Becerril, 130 F.3d at
21, and Souza was not arrested until August 12, 2010. The delay in
obtaining the arrest following his criminal conduct implicates
separate rights, see Munoz-Franco, 487 F.3d at 58, not invoked by
Souza on appeal. Though Souza speculates about prejudice, he
points to nothing in the eighteen-month period between his arrest
and trial that impaired his ability to mount a defense.
As to pretrial incarceration, we cannot say that the
delay between Souza's arrest and trial caused him prejudice. Souza
was incarcerated while awaiting trial only because he failed to
abide by the conditions of his release. And, as to anxiety and
concern, since "considerable anxiety normally attends the
initiation and pendency of criminal charges[,] . . . only undue
pressures are considered." United States v. Henson, 945 F.2d 430,
438 (1st Cir. 1991) (internal quotation marks omitted). The record
does not suggest that Souza was subject to such undue pressures.
Weighing all four factors, in light of the facts that
Souza and his counsel were largely responsible for the delay and
that Souza did not experience prejudice as a result, we discern no
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abuse of discretion in the district court's determination that
Souza's Sixth Amendment right was respected.
B. Ineffective Assistance of Counsel
Souza argues that his counsel provided ineffective
assistance by filing the joint motion for enlargement of time.
Souza claims that his attorney agreed to this motion without
consulting Souza and that the motion ran counter to his interests.
This is neither the time nor the place to first raise the
ineffective assistance claim. Such claims "should ordinarily be
litigated in the first instance in district court. It is true that
we make an exception for cases in which trial counsel's
ineffectiveness is manifestly apparent from the record, but this is
not such a case." United States v. Wyatt, 561 F.3d 49, 52 (1st
Cir. 2009) (citations omitted). Souza's ineffective assistance of
counsel claim requires further factual development, so he must wait
to raise it on collateral review.
C. Due Process
Souza claims that his conviction under 31 U.S.C.
§ 5324(a)(3) violates due process because the statute fails to
provide fair notice that his conduct was criminal. Because his
actions -- withdrawing $54,000 in $9000 increments from multiple
branches in one day -- in fact triggered the bank's reporting
requirements, he wonders how he can be punished for evading those
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requirements. We review such a challenge de novo. United States
v. Hussein, 351 F.3d 9, 14 (1st Cir. 2003).
Souza's argument misses the point. Section 5324(a)(3)
makes it a crime to structure transactions "for the purpose of
evading the reporting requirements." 31 U.S.C. § 5324(a)(3)
(emphasis added). The statute focuses on an individual's intent to
evade the reporting requirements, not on whether he succeeds in
doing so. United States v. Sweeney, 611 F.3d 459, 471 (8th Cir.
2010) ("[Section] 5324 prohibits persons from conducting
transactions with the intent to evade the reporting requirement,
regardless of whether a plan to evade the reporting requirement
succeeds (by staying below the $10,000 threshold) or fails (by
exceeding the $10,000 threshold)."); United States v. Van Allen,
524 F.3d 814, 825 (7th Cir. 2008) ("Whether or not Van Allen
actually fooled Archer Bank has no bearing on the substantive
violation under 31 U.S.C. § 5324(a)."). Consistent with due
process, Souza could be convicted of structuring his transactions
in a way that demonstrates his intent to evade the reporting
requirements, even though he failed to actually evade them.
D. Evidentiary Rulings
According to Souza, the district court erred in admitting
evidence related to the source of the funds that were eventually
structured. This included evidence of Burtchaell's purchase of the
Maine property, the loan he took out on that property, and his
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transfer of the loan proceeds to Souza's account. We review such
evidentiary rulings for abuse of discretion. United States v.
Green, 698 F.3d 48, 55 (1st Cir. 2012).
Souza first claims that evidence of fraudulent activity
related to the Maine transaction was not intrinsic to the charged
crime of structuring and, as extrinsic evidence, comprised prior
acts that were inadmissible under Federal Rule of Evidence 404(b).
Intrinsic evidence includes prior acts that are "part of [the]
necessary description of the events leading up to the crime[]" or
that go to "an element of the charged offense." United States v.
Fazal-Ur-Raheman-Fazal, 355 F.3d 40, 50 (1st Cir. 2004). Here,
evidence of the funds' source was part of the necessary description
of the events leading up to the structuring; that evidence, as it
suggested Souza knew he had obtained the funds in an illicit
manner, also went to the element of his intent to evade the
reporting requirements. The district court did not abuse its
discretion in treating this evidence as intrinsic to the crime
charged.2
Souza also argues that the evidence should have been
excluded under Rule 403 as unfairly prejudicial. We reverse the
2
Because we conclude that the evidence was intrinsic to the
charged crime and went to the issue of Souza's intent, we need not
address his argument that the evidence was inadmissible under Rule
404(b). See United States v. Mare, 668 F.3d 35, 39 (1st Cir. 2012)
(citing Fazal-Ur-Raheman-Fazal for the proposition that "intrinsic
evidence that would satisfy the charged crime's specific intent
element is not governed by Rule 404(b)").
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district court's judgment about the prejudicial effect of evidence
"[o]nly rarely -- and in extraordinarily compelling circumstances."
Freeman v. Package Mach. Co., 865 F.2d 1331, 1340 (1st Cir. 1988).
Souza avers that evidence of the funds' source lacked probative
value because the government could have proven its case exclusively
through the structure of the transactions. Of course, at trial the
government needed to overcome Souza's assertion that he was forced
to complete his withdrawals as he did because none of the bank
branches had enough cash on hand. And while theoretically a jury
could have inferred Souza's intent to evade the reporting
requirements simply from the structure of the transactions
themselves, evidence of how Souza obtained the funds provided
important additional information with which to evaluate his intent.
See United States v. Davenport, 929 F.2d 1169, 1174 (7th Cir. 1991)
("The Davenports say it is irrelevant to their guilt of the crime
of which they were charged where they got the money. It is not
irrelevant. The shadier the source, the greater the Davenports'
motive to conceal the money from the authorities by taking measures
to thwart the reporting requirements."); see also Old Chief v.
United States, 519 U.S. 172, 188 (1997) ("[T]he prosecution may
fairly seek to place its evidence before the jurors, as much to
tell a story of guiltiness as to support an inference of
guilt . . . .").
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We understand Souza's concern about the prejudicial
effect this evidence might have had on the jury. The prosecution
devoted considerable time to the Maine transaction. And Souza, in
turn, reasonably felt compelled to respond to allegations of fraud
in that transaction. Evidence that Souza defrauded an elderly,
vulnerable man ran the risk of prejudicing the jury. See United
States v. Gilbert, 229 F.3d 15, 24 (1st Cir. 2000) (noting the
prejudice that can attend a "mini-trial" on uncharged conduct).
But Rule 403 excludes evidence only when its prejudicial effect
substantially outweighs its probative value, and we cannot say that
the district court abused its discretion in refusing to find such
substantial outweighing here. Moreover, the district court
instructed the jury to focus on the charged conduct, as opposed to
any potential uncharged crime. See United States v. Williams, 717
F.3d 35, 41-42 (1st Cir. 2013) (noting that limiting instruction
can help prevent unfair prejudice in these situations).
E. Sentencing
Souza argues that the district court's sentencing
guidelines calculation was erroneous in three respects. We review
the sentencing court's factfinding for clear error and its
construction and application of the guidelines de novo. United
States v. Ihenacho, 716 F.3d 266, 276 (1st Cir. 2013).
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1. Amount of Structured Funds
The district court found that the structured funds
consisted of a June 8, 2006 withdrawal of $5000, a June 12
withdrawal of $5500, a June 13 withdrawal of $4976.26, a June 14
withdrawal of $3700, and the six June 15 withdrawals of $9000 each,
all totaling $73,176.26. Because the structured funds totaled more
than $70,000, the court applied an eight-level increase to Souza's
offense level under U.S.S.G. § 2B1.1(b)(1)(E).
Souza argues that the structured funds consisted of only
the $54,000 withdrawn in six installments on June 15. Therefore,
says Souza, the court should have applied only the six-level
increase that corresponds to structured funds totaling between
$30,000 and $70,000. See id. § 2B1.1(b)(1)(D). Souza points out
that, while a $9000 withdrawal is just under the $10,000 reporting
threshold, none of his other withdrawals came close to the limit.
He also argues that the June 13 withdrawal of $4976.26 is too
specific to show structuring, and likely was used to pay a bill.
We see no clear error in the district court's calculation
of the structured funds. There is no requirement that structuring
involve whole numbers or amounts just under $10,000. Although the
withdrawals between June 8 and June 14 were not identical to those
of June 15, they share enough similarities that the court could
have reasonably concluded that all of the withdrawals were meant to
evade the reporting requirements. They all occurred within a short
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time period: no more than one business day elapsed between any of
the withdrawals. They all involved several thousands of dollars.
And they all closely followed the deposit of the bulk of
Burtchaell's loan proceeds into Souza's account.
2. Proceeds of Unlawful Activity
The district court found that Souza knew the structured
funds were the proceeds of unlawful activity, and thus applied a
two-level increase under U.S.S.G. § 2S1.3(b)(1)(A).
Souza argues that there was no evidence that he acquired
the funds through unlawful activity. According to Souza,
Burtchaell's consent to the Maine transaction was obtained neither
through fraud nor through misrepresentation.
The record tells a different story. Souza misrepresented
the nature of the Maine transaction by failing to disclose to
Burtchaell and Friese that the other partners were Souza's sons or
that Burtchaell was providing all of the purchase money. Souza
also promised illusory returns on the investment, and then
convinced Burtchaell to take out a loan on the property and to
transfer the bulk of the loan proceeds to Souza's account. All of
this provides enough evidence to support the district court's
finding that Souza knew the structured funds derived from unlawful
activity.
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3. Vulnerable Victim
The district court found that Souza knew or should have
known that Burtchaell was a vulnerable victim, and thus applied a
two-level increase under U.S.S.G. § 3A1.1(b)(1). The guidelines
define a vulnerable victim as "a person (A) who is a victim of the
offense of conviction and any conduct for which the defendant is
accountable under § 1B1.3 (Relevant Conduct); and (B) who is
unusually vulnerable due to age, physical or mental condition, or
who is otherwise particularly susceptible to the criminal conduct."
Id. § 3A1.1 cmt. n.2.
Souza challenges the vulnerable victim increase on two
grounds. First, he says that even if he defrauded Burtchaell,
Burtchaell was not a victim of the charged crime of structuring.
Second, Souza says he did not know of and had no reason to know of
Burtchaell's vulnerability.
a. "Victim"
To come within the guidelines' definition, one need not
be a victim of the charged offense so long as one is a victim of
the defendant's other relevant conduct. Id. Relevant conduct
includes all acts that occurred during the preparation and
commission of the offense. See id. § 1B1.3(a)(1). And for an
offense like structuring, relevant conduct also includes acts that
were "part of the same course of conduct or common scheme or plan."
See id. §§ 1B1.3(a)(2), 3D1.2(d). A common scheme or plan involves
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acts connected "by at least one common factor, such as common
victims, common accomplices, common purpose, or similar modus
operandi." Id. § 1B1.3 cmt. n.9(A).
Souza argues that any fraud of which Burtchaell might
have been a victim was not relevant conduct with respect to the
charged offense of structuring. We disagree. The fraud and the
structuring were part of a common scheme: without the fraud, Souza
would not have acquired the funds that he went on to withdraw
through structured transactions, and the structuring was meant to
extract without detection his ill-gotten gains. This case is
similar to United States v. Johnson, in which fraud perpetrated
against telemarketing victims was deemed relevant to the charged
offense of money laundering, because the fraud "provided the
illicit funds necessary to finance additional criminal activity."
297 F.3d 845, 873 (9th Cir. 2002); see also United States v.
Firment, 296 F.3d 118, 120-21 (2d Cir. 2002) ("[W]e see no error in
the district court's application of the vulnerable victim
enhancement to Firment on the basis of the vulnerability of the
victims of the telemarketing scheme that generated the taxable
revenues, despite the fact that his offense of conviction was a tax
offense."). In short, the district court did not err in
determining that Burtchaell was a victim of conduct that was
relevant to the charged structuring.
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b. "Vulnerable"
The evidence of Burtchaell's diminished capacity was
considerable, consisting of testimony from his neighbors that he
began to look disheveled, that he had difficulty remembering their
names, that he would get lost walking around the neighborhood, and
that he once flooded his house by leaving the bath running, as well
as testimony that his financial advisor had reported to his manager
concern about Burtchaell's slipping mental faculties. Coupled with
evidence that Souza spent substantial time with Burtchaell during
this period, we see no clear error in the district court's
determination that Souza knew or had reason to know of Burtchaell's
vulnerability.
III. Conclusion
For the foregoing reasons, Souza's conviction and
sentence are affirmed.
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