United States v. Bekar ( 2000 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 98-11390
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ABDUL HALIM BEKAR,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Texas, Lubbock
5:96-CR-041-05
July 10, 2000
Before KING, Chief Judge, and GARWOOD and DeMOSS, Circuit Judges.
GARWOOD, Circuit Judge:*
A jury in federal district court convicted defendant-appellant
Abdul Halim Bekar (Bekar) of conspiracy to import heroin into the United
States, as well as conspiracy to possess with intent to distribute and
to distribute. On appeal, Bekar challenges the sufficiency of the
evidence supporting his conviction for conspiracy to import; he also
challenges the district court’s decisions to allow the testimony of two
*
Pursuant to 5TH CIR. R. 47.5 the Court has determined that this
opinion should not be published and is not precedent except under the
limited circumstances set forth in 5TH CIR. R. 47.5.4.
British law enforcement officers and to admit in evidence business
records, as well as testimony about those records, from a British travel
agency that Bekar had allegedly used to launder drug money. Finding
sufficient evidence to support Bekar’s conviction for conspiracy to
import and no reversible error in the district court’s evidentiary
rulings, we affirm.
Facts and Proceedings Below
Bekar is a citizen of Great Britain. He was arrested in London by
officers of H.M. Customs and Excise National Investigation Service
(British Customs) on July 8, 1996, and was later extradited to the
United States.1 On August 13, 1996, a grand jury in the Northern
District of Texas, Lubbock Division, returned a five-count superseding
indictment against Bekar and several other co-defendants. The
indictment charged Bekar with one count of conspiracy to import more
than one kilogram of heroin, in violation of 21 U.S.C. § 963, and one
count of conspiracy to possess more than one kilogram of heroin with
intent to distribute and to distribute, in violation of 21 U.S.C. § 846.
The indictment alleged that Bekar facilitated an international heroin
conspiracy by coordinating the receipt and concealment of the twenty-
four kilograms of heroin in a restaurant in New York City, and later
arranging for the heroin’s retrieval by other co-conspirators.
At trial, the government presented evidence of a complex
international heroin trafficking scheme, stretching from Istanbul,
1
Bekar arrived in the United States on or about March 20, 1998.
2
Turkey, to San Francisco, California. According to the government’s
evidence, several conspirators, including Bekar, entered into an
agreement to import and distribute heroin within the United States.
Three of the conspirators, Aziz Ghanbari (Ghanbari), Hakki Aksoy
(Aksoy), and Hamid Reza Sayadi-Takhtehkar (Sayadi), negotiated to sell
heroin to undercover agents from the DEA San Francisco field office, who
were posing as wealthy Canadian business people interested in
distributing heroin in North America. These meetings took place in
Vienna, Austria, New York, and San Francisco. Additional conspirators
were involved in transporting the heroin from Turkey to the United
States, as well as concealing the heroin once it arrived here. Hiding
the heroin in the salt tanks of two water filtration systems, the
conspirators delivered approximately 100 kilograms from Istanbul to
Lubbock, Texas, where one of the conspirators, Mario Berger (Berger),
an Austrian national, had a residence. On November 14, 1995, Berger and
another conspirator, Sezgin Yildizhan (Yildizhan), a citizen of the
Netherlands, drove twenty-four kilograms of that heroin from Lubbock to
New York, at which point Bekar entered the picture.
The government presented evidence that Bekar made two trips from
London to New York in November and December, 1995. Bekar first arrived
in New York on November 24, 1995 and met with Yildizhan, who had been
waiting in a hotel in Elizabeth, New Jersey. After meeting with
Yildizhan, Bekar was apparently unable to coordinate with the
individuals to whom he intended to pass along the heroin. He convinced
3
the owner of the Uskudar Turkish Restaurant (Uskudar restaurant) in
Manhattan to allow him to leave a large suitcase containing the heroin
at the restaurant for a period of time.2 Bekar then returned to London.
He made his second trip to New York on December 9, 1995. The purpose
of this trip, according to the government, was to help coordinate the
delivery of the heroin he had hidden at the Uskudar restaurant to the
undercover DEA agents. Bekar left New York before any delivery actually
took place.
The government also presented evidence that Bekar had been the
target of a British Customs investigation, known as “Operation
Fletcher,” into a Turkish heroin operation in Britain. British Customs
officers Mark Bishop (Officer Bishop) and Ian Goodman (Officer Goodman)
testified and provided documentation and photographic evidence that
Bekar had transferred large amounts of money to various accounts in
Turkey through T.E.B. Travel, Ltd. (T.E.B.), a bureau d’change and
travel agency in London.3 Bishop testified that the manner in which
2
The owner of the restaurant, Abdullah Ozdemir (Ozdemir), was not
charged as a member of the conspiracy and does not appear to have known
that the suitcase contained heroin. He testified at Bekar’s trial that
Bekar told him that the bag contained clothes and items relevant to
Yildizhan’s job as a shoe salesman.
3
Officer Goodman testified that when he interviewed Bekar in May
and September, 1997, after Bekar’s arrest, Bekar told him that he had
only visited the T.E.B. twice in his life and had never transferred
money anywhere in the world except to Aksoy’s lawyer in San Francisco.
The evidence collected during Operation Fletcher demonstrated that Bekar
had visited T.E.B. on at least thirty occasions and had transferred
money to other countries on other occasions. It also showed that
transactions through T.E.B.involving approximately £1.4 million were
made on occasions between November, 1995, and July, 1996, when Bekar was
photographed or observed at T.E.B.
4
Bekar disposed of certain sums in Janurary, 1996, including the exchange
of £45,147 into 100,000 German marks and the transfer of the same amount
to a receiver in Dubai, United Arab Emerites, was consistent with the
money laundering activities of drug traffickers.4 The British Customs
officers also testified and provided documentation that Bekar associated
with other known heroin traffickers.
The theory of Bekar’s defense was that his gullibility and
humanitarian impulses resulted in him being duped by the co-conspirators
into helping them, albeit unwittingly. Bekar explained that Aksoy and
his brother, Refat Aksoy (Refat), had befriended him and convinced him
to help transfer funds through T.E.B. to the P.K.K., a Kurdish rebel
movement in Turkey. While Bekar suspected that Aksoy and other co-
conspirators were involved in heroin trafficking, he claimed that he
sincerely believed he was only working with them in their efforts to
help the Kurdish rebels. He claimed that his account at T.E.B. had been
used without his knowledge to launder drug money, and that he had taken
the two trips to New York with the purpose of assisting Aksoy and Rafat
in legitimate business dealings, including the purchase of an
automobile.
4
Officer Bishop testified that drug traffickers often change
bulky British Sterling currency (as well as Scottish pound notes) into
foreign currency with higher denominations, such as German marks, Dutch
guilders, or United States dollars, which can be transported more
easily. Officer Bishop also testified that drug traffickers in Britain
frequently launder drug money through Dubai because the United Arab
Emerates is a “black hole” with no money laundering laws to speak of;
the absence of such laws renders money impossible to trace once it has
been transferred there.
5
On August 6, 1998, the jury convicted Bekar on both conspiracy
counts. The district court conducted a sentencing hearing on November
19, 1998, and sentenced Bekar to two 400-month terms of imprisonment,
to be served concurrently, followed by two five-year terms of supervised
release, to begin upon his release.5 Bekar timely appealed.
Discussion
I. Bekar’s Conviction for Conspiracy to Import6
In his first point on appeal, Bekar contends that the government
presented insufficient evidence to support his conviction for conspiracy
5
Co-conspirators Aksoy, Burhanettin Saral, Hasan Saral, Senol
Polat, Yildizhan, Sayadi, and Ghanbari were indicted with Bekar. Aksoy,
Yildizhan, Sayadi, and Ghanbari, were convicted at separate trials.
Ghanbari later died in custody. Berger pleaded guilty after his arrest
on December 8, 1995. Burhanettin Saral, Hasan Saral, and Senol Polat
remain fugitives.
6
We note at the outset that Bekar’s convictions for conspiracy
to import, in violation of 21 U.S.C. § 963, and conspiracy to possess
with intent to distribute and to distribute, in violation of 21 U.S.C.
§ 846, do not violate the Double Jeopardy Clause, even though they were
based on the same single conspiracy. Ordinarily, an indictment runs
afoul of the Double Jeopardy Clause when it alleges on its face two
separate conspiracy counts under a single conspiracy statute based on
one agreement. See United States v. Olivares, 786 F.2d 659, 664 (5th
Cir. 1986) (“[E]ach conspiracy conviction must be supported by a
corresponding separate agreement.”); United States v. Winship, 724 F.2d
1116, 1126-27 (5th Cir. 1984). However, the Supreme Court has held that
a single conspiracy may violate both § 963 and § 846 without raising
Double Jeopardy concerns because the two conspiracy statutes “specify
different ends as the proscribed object of the conspiracy–distribution
as opposed to importation–and it is beyond peradventure that 101 S.Ct. 1137, 1142, 1145 & n.3 (1981)
(quoting Blockburger v. United States, 52 S.Ct. 180, 182 (1932)).
Albernaz controls this case and therefore Bekar has not been subjected
to multiple punishments for the same offense in violation of the Double
Jeopardy Clause.
6
to import heroin.7 Having reviewed the record and the briefs, and
considered the argument of counsel, we do not agree. We review the
sufficiency of the evidence against Bekar to determine whether “any
rational trier of fact could have found the essential elements of the
crime beyond a reasonable doubt.” Jackson v. Virginia, 99 S.Ct. 2781,
2789 (1979). We will view all evidence and reasonable inferences from
the evidence in the light most favorable to the government. See United
States v. Stevenson, 126 F.3d 662, 664 (5th Cir. 1997).
In order to establish guilt of conspiracy to import heroin, the
government must prove beyond a reasonable doubt that (1) an agreement
existed between two or more persons to import heroin, (2) that Bekar
knew of the agreement, and (3) that he intentionally participated in the
conspiracy. See United States v. Gourley, 168 F.3d 165, 170 (5th Cir.),
cert. denied, 120 S.Ct. 72 (1999); United States v. Paul, 142 F.3d 836,
839-40 (5th Cir. 1998). A guilty verdict may be sustained “although the
defendant engaged only in the conspiracy’s distribution or delivery
aspects after the contraband entered the country; importation is not
complete until the drugs reach their final destination.” Gourley, 168
F.3d at 170 (citations omitted). The government does not need to prove
that Bekar knew all the details of the conspiracy, only that “he knew
7
Bekar first moved for a judgment of acquittal at the close of
the government’s evidence, but did not renew the motion at the close of
all evidence. However, since he renewed it within seven days after the
jury’s verdict, under Rule 29(c), he has fully preserved his right of
appellate review. See FED. R. CRIM. P. 29(c); United States v. Allison,
616 F.2d 779, 784 (5th Cir. 1980).
7
of the conspiracy’s essential purpose.” United States v. Osgood, 794
F.2d 1087, 1094 (5th Cir. 1986).
While Bekar was not shown to have actively participated in
importing the heroin into the United States from Turkey, or transporting
it from Texas to New York, the government presented evidence that he
facilitated its delivery once it arrived in New York. At trial, DEA
agent Amir Hamidi (Agent Hamidi) testified that during negotiations with
some of the conspirators in San Francisco on December 6, 1995, Aksoy and
Ghanbari offered to sell the approximately twenty-five kilograms of
heroin to the agents as a means of establishing trust between the two
parties, and also as a promise of larger sales to come in the future.8
Aksoy and Ghanbari told the agents that their “representative from
London” would arrive in New York and oversee the delivery of the heroin.
Aksoy also told Agent Hamidi that the heroin had been hidden in the
United States and that his London associates were “still keeping” it.
As the government points out in its brief, evidence offered at
trial demonstrated that Bekar was this representative from London.
Yildizhan testified that once he arrived in New York in November, 1995,
with the heroin, he contacted one of the principals of the conspiracy,
Burhanettin Saral (Saral) in Turkey, asking for instructions. Saral
told Yildizhan to wait and “a person from England” would arrive and
8
At trial, the government presented evidence that this
approximately 25 kilograms of heroin was in fact the 24 kilograms that
Berger and Yildizhan transported from Lubbock to New York, and that
Bekar then concealed at the Uskudar restaurant.
8
relieve him of the drugs. Once Bekar arrived in New York, Saral told
Yildizhan that a man named Halim Bekar was in New York to take the drugs
from him. The government introduced records of a telephone call from
Yildizhan’s hotel in Elizabeth, New Jersey, to Bekar’s hotel in New
York. Yildizhan testified that Bekar met with him and attempted to
contact the connections with whom he would deposit the heroin.
Unsuccessful, Bekar bought a large suitcase to hide the heroin in, and
arranged to leave the suitcase temporarily at the Uskudar restaurant.
Bekar then left for London. At trial, Ozdemir, the owner of the
restaurant, identified Bekar as the individual who asked him to store
the suitcase temporarily at the restaurant.
Bekar returned to New York on December 9, 1995. Muzeyyen Ozdemir,
wife of Ozdemir, identified Beker as the man who came to the restaurant
on the evening of Sunday, December 10, and arranged for the suitcase to
be picked up the next day. Undercover DEA agent Jon Goldberg (Agent
Goldberg) testified that he had agreed with Aksoy and Ghanbari at a
December 7 meeting in San Francisco that he would travel to New York
within the next couple of days and meet with their London representative
in order to facilitate the transfer of the heroin. Once in New York,
he met with Sayadi and Ghanbari (who had also traveled to New York) and
arranged for the pick-up of the heroin. Ghanbari told Agent Goldberg
that the London representative had already left New York, but gave him
the restaurant’s address where the heroin had been left. Meanwhile
Aksoy, still in San Francisco, spoke with Bekar and also gave Agent
9
Hamidi the restaurant’s address. Ghanbari and Sayadi retrieved the
heroin from the restaurant that afternoon, and were arrested with it
soon afterwards.
Additional evidence linked Bekar to the conspiracy. The number of
Bekar’s mobile phone in London was written on the back of the business
card that Ozdemir testified Bekar had given him; the same number was
written on a piece of paper that Aksoy possessed at the time of his
arrest; the number was also on a piece of paper poosessed by Yildizhan
when he was arrested. Yildizhan testified that he had written the
number in a “coded” fashion at Bekar’s instruction. Telephone records
reflected calls on December 10 and 11 from Ghanbari’s and Sayadi’s hotel
to Bekar’s hotel in New York, as well as calls from Aksoy’s hotel in San
Francisco to Bekar’s London mobile phone number.
Based on this evidence, we find that the government presented a
sufficient “development and collocation of circumstances” from which a
reasonable jury could have inferred Bekar’s knowing participation in the
conspiracy. See Osgood, 794 F.2d at 1094 (citations and internal
quotations omitted). “[W]e have consistently held that [a] jury may
infer the existence of a conspiracy from the presence, association, and
concerted action of the defendant with others.” United States v.
Gonzales, 121 F.3d 928, 935 (5th Cir. 1997). Bekar’s presence in New
York during the orchestrated transfer of the heroin to the undercover
agents, the testimony of Yildizhan about Bekar’s arranging to pick up,
conceal, and deliver the heroin, the identification of Bekar by both
10
Ozdemir and his wife as the man who secured the suitcase containing the
heroin at the restaurant, and the evidence of phone calls between Bekar
and the other conspirators, as well as the possession of his phone and
hotel numbers by Ghanbari, Sayadi, Yildizhan, and Aksoy, all establish
a basis upon which reasonable jurors could conclude that Bekar and these
individuals had entered into an agreement sometime before Bekar arrived
in New York “to act in concert to achieve the essential purpose of
bringing drugs into the country.” Gourley, 168 F.3d at 170; see also
United States v. Brito, 136 F.3d 397, 409 (5th Cir. 1998) (“[A]
conspiracy can be inferred from a combination of close relationships or
knowing presence and other supporting circumstantial evidence.”).9
This evidence also supports the jury’s finding that Bekar knew of
and participated in the agreement. For example, the record contains
evidence that Bekar bought the suitcase and arranged for it to be
stashed at the restaurant. There is also evidence that he provided the
address of the restaurant to various co-conspirators, who in turn gave
it to the undercover DEA agents. Yildizhan testified that Bekar knew
exactly what the contents of the suitcase were, and even instructed him
not to use the word “heroin” over the phone.10 The evidence is more than
9
Despite Bekar’s suggestions to the contrary, we do not perceive
in the record any evidence of distinct multiple conspiracies.
10
The testimony of a single co-conspirator, even one who
testifies on the basis of a plea bargain or promise of leniency, is
sufficient to support a conspiracy conviction, as long as the testimony
is not incredible as a mater of law. See United States v. Garcia
Abrego, 141 F.3d 142, 155 (5th Cir.), cert. denied, 119 S.Ct. 182(1998).
11
sufficient to justify the jury’s inference of Bekar’s knowledge of and
voluntary participation in the conspiracy. See Brito, 136 F.3d at 410(finding a defendant’s ownership of and presence in a truck carrying
drugs, as well as testimony of witnesses that defendant had participated
in smuggling operation and had told one of them about another vehicle
with a secret compartment, sufficient to support conspiracy conviction).
Apparently, the jury found this evidence more compelling than Bekar’s
characterization of himself as a babe in the woods who had been duped
by heroin traffickers masquerading as donors of humanitarian aid. As
the finder of fact, the jury acted entirely within its rights to make
this credibility determination.
II. Evidentiary Challenges
Bekar objects to three evidentiary rulings made by the district
court during the conduct of the trial, and contends that these erroneous
decisions require reversal and a new trial. We will address them
seriatim.
A. Testimony of Officer Bishop
At trial, Officer Bishop testified that over the course of
Operation Fletcher, British Customs agents had observed Bekar
associating with an individual known as Sismek, who was later convicted
of heroin trafficking. Bekar contends that the district court’s
admission of this testimony constitutes reversible error because it was
irrelevant, unduly prejudicial, and demonstrated only guilt by
association. This Court reviews a district court’s evidentiary rulings
12
for abuse of discretion, unless the party challenging the ruling did not
make a timely objection to the admission of the evidence, in which case
we review for plain error. See United States v. Polasek, 162 F.3d 878,
883 (5th Cir. 1998).
It is beyond question that the government may not establish guilt
by showing that a defendant is related to or otherwise associates with
“unsavory” persons. See United States v. Parada-Talamantes, 32 F.3d
168, 170 (5th Cir. 1994) (quoting United States v. Singleterry, 646 F.2d
1014, 1018 (5th Cir. Unit A 1981)). However, while Bekar objected to
the testimony at the time it was elicited, there is some dispute whether
Bekar’s objection was proper. Rule 103(a)(1) of the Federal Rules of
Evidence requires that a finding of error in an evidentiary ruling must
be based on a “timely objection or motion to strike [appearing in the]
record, stating the specific ground of objection, if the specific ground
was not apparent from the context.” FED. R. EVID. 103(a)(1); Polasek,
162 F.3d at 883. Bekar objected to the testimony in question by
stating, “Objection, your honor; relevance.” He did not elaborate
further.
In Polasek, we noted that this Court has “not yet explicitly
determined what statute or rule of evidence guilt by association
evidence violates.” Id. at 884 n.2. We observed that other Courts of
Appeals had found it either irrelevant, in violation of FED. R. EVID.
402, or unduly prejudicial, in violation of FED. R. EVID. 403 See id.The Polasek Court found that whether it was based on relevance or
13
prejudice, the defendant’s objection to the evidence–“It doesn’t prove
that she had anything to do with [the crimes of her
associates]”–sufficiently “put the court on notice” that she was
objecting to guilt-by-association evidence. See id. at 883.
Accordingly, the Court did not resolve the relevance-prejudice question
and concluded instead that the evidence was irrelevant, and even if
relevant, was unduly prejudicial. See id. Similarly, we decline to
decide what basis, and with what degree of specificity, a defendant must
articulate when objecting to guilt-by-association evidence. We will
assume without deciding that Bekar’s relevance objection sufficiently
preserved his rights on appeal, and conclude that even if the district
court’s ruling was in error, the error, if any, was harmless.
The reason for our conclusion is fairly simple. In his opening
statement, Bekar’s counsel explained that Bekar associated–unknowingly,
of course–with heroin traffickers, such as Rafat and Hakki Aksoy, who
lured him into this scheme with stories about helping Kurdish rebels.
Because Bekar already admitted that he associated with heroin
traffickers, we do not discern what harm occurred by Officer Bishop
testifying to essentially the same fact. Under Bekar’s theory, Sismek
could just as easily have been another trafficker out to dupe Bekar into
furthering the criminal enterprise at issue here (or even a completely
unrelated one). Accordingly, this complaint presents no basis for
reversal.
B. Testimony of Officer Goodman
14
Bekar next argues that the district court erred in admitting the
testimony of Officer Goodman that British Customs agents had observed
Bekar associating with two individuals known as Tremble and Fox, who
were later charged with narcotics violations in Britain. As before,
Bekar is contending that the government introduced prejudicial evidence
that only showed guilt by association. This argument is even weaker
than his argument about Officer Bishop’s testimony: Bekar not only
failed to object to the testimony about Tremble and Fox, but also it was
his counsel that elicited it all during his cross-examination of Officer
Goodman.
Under the “invited error” doctrine, “[a] defendant cannot complain
on appeal of alleged errors invited or induced by himself.” United
States v. Raymer, 876 F.2d 383, 388 (5th Cir. 1989). All the complained
of evidence in this respect was adduced during Bekar’s counsel’s cross-
examination of Officer Goodman. Of course, no objection was made below
to any of this evidence. This Court can only reverse an invited error
if it seriously jeopardized the substantial rights of the defendant.
See id. Based on the significant evidence demonstrating Bekar’s guilt,
we find no reason to believe that this testimony either tipped the jury
in favor of convicting Bekar or prejudiced the trial so seriously as to
mandate reversal.
C. Admission of Business Records and Testimony About T.E.B.
Finally, Bekar challenges the district court’s decision to allow
in business records from T.E.B. tending to show that Bekar engaged in
15
money laundering in Britain. He also objects to the testimony of
Officer Bishop regarding the significance of these records. Bekar
claims that the records and Officer Bishop’s testimony were
untrustworthy and therefore inadmissible under 18 U.S.C. § 3505, which
governs the admission of foreign records; lacked sufficient indicia of
reliability, as required by the Sixth Amendment; and failed to show
Bekar’s commission of extrinsic money laundering offenses under FED. R.
EVID. 404(b), and were therefore irrelevant and unduly prejudicial. We
review for abuse of discretion the district court’s admission of
evidence under Rule 404(b), see United States v. Bermea, 30 F.3d 1539,
1561 (5th Cir. 1994), as well as the admission of foreign records under
18 U.S.C. § 3505, see United States v. Garcia Abrego, 141 F.3d 142, 178
(5th Cir.), cert. denied, 119 S.Ct. 182 (1998). We review Bekar’s
constitutional challenge de novo. See United States v. Guajardo, 950
F.2d 203, 206 (5th Cir. 1991).
As discussed earlier, the theory of Bekar’s defense was the he had
been duped by Hakki and Refat Aksoy, among others, into making the two
trips to New York and using his T.E.B. account to transfer money to the
Kurdish rebels. In his opening statement, Bekar’s counsel fully
admitted that Bekar’s T.E.B. account had in fact been used to launder
drug money, albeit supposedly without Bekar’s knowledge:
“So in comes Mr. Bekar into the picture. And you will be
able to see Refat’s mind working as we talk about this during
the trial. 18 U.S.C. § 3505(a)(1) provides in relevant part:
“In a criminal proceeding in a court of the United States, a
foreign record of regularly conducted activity, or a copy of such
record, shall not be excluded as evidence by the hearsay rule if
a foreign certification attests that–
(A) such record was made, at or near the time of the
occurrence of the matters set forth, by (or from information
transmitted by) a person with knowledge of those matters;
(B) such record was kept in the course of a regularly
conducted business activity;
17
the statutory requirements of section 3505 were met, the circumstances
surrounding the preparation of these documents “indicate lack of
trustworthiness.” 18 U.S.C. § 3505(a)(1). He argues that the records
are unreliable because the director of T.E.B. “reluctantly” signed the
certificates of authenticity, the British Customs agents could not link
Bekar specifically to every use of the T.E.B. account, and “[t]he
personnel at T.E.B. may well have had a motive to falsify records in the
account or use the account for their own purposes” because T.E.B. was
also the target of a British government investigation. None of these
arguments is persuasive in the present context. As the government
points out, certificates of authenticity were signed and the statutory
requirements were met. Moreover, the reliability of the records was
corroborated by observations by British Customs agents that Bekar
entered T.E.B. on numerous occasions with large containers, presumably
filled with cash, and that several transactions through his account
involving large amounts of money occurred during his visits to T.E.B.
Bekar’s speculation about the motives of the T.E.B. personnel prove
nothing. In sum, the district court did not abuse its discretion in
determining that these records bear adequate indicia of reliability.
Second, because the records are reliable, their admission under
(C) the business activity made such a record as a regular
practice; and
(D) if such record is not the original, such record is a
duplicate of the original;
unless the source of information or the method or circumstances of
preparation indicate a lack of trustworthiness.” 18 U.S.C. § 3505(a)(1).
18
section 3505 did not violate Bekar’s rights under the Sixth Amendment.
See Garcia Abrego, 141 F.3d at 178 (citing Ohio v. Roberts, 100 S.Ct.
2531 (1980)).
Third, we do not believe that the district court abused its
discretion in admitting the records as extraneous offenses under FED. R.
EVID. 404(b).12 In order for extrinsic offense evidence to be
admissible, it must be “relevant to an issue other than the defendant’s
character,” and “must possess probative value that is not substantially
outweighed by . . . undue prejudice.” United States v. Beechum, 582
F.2d 898, 911 (5th Cir. 1978). Extrinsic evidence is relevant only if
the government offers some “proof demonstrating that the defendant
committed the offense.” Id. at 913. However, the district court “need
not be convinced beyond a reasonable doubt . . ., nor need [it] require
the Government to come forward with clear and convincing proof.” Id.This Court has held that the entry of a not-guilty plea in a
conspiracy case “raises the material issue of intent sufficiently to
justify the admissibility of extrinsic offense evidence.” Bermea, 30
F.3d at 1562; see also United States v. White, 972 F.2d 590, 599 (5th
Cir. 1992) (finding that evidence of a defendant’s previous money
12
FED. R. EVID. 404(b) provides in relevant part:
“Evidence of other crimes, wrongs, or acts is not admissible to
prove the character of a person in order to show action in conformity
therewith. It may, however, be admissible for other purposes, such as
proof of motive, opportunity, intent, preparation, plan, knowledge,
identity, or absence of mistake or accident . . . . “
19
laundering activities relevant to drug conspiracy case in which the
defendant pleaded not guilty). The government argues that it introduced
the evidence that Bekar engaged in activity consistent with money
laundering in order to establish Bekar’s intent–an question Bekar placed
directly at issue with his babe-in-the-woods defense–and that it
provided sufficient proof that Bekar actually laundered drug money.
Like the district court, we agree that the government presented
sufficient evidence. British Customs collected evidence that Bekar made
numerous visits to T.B.E.; that many of his visits coincided with
transfers through his account of large sums of money, sometimes to known
money laundering havens like Dubai; that he sometimes exchanged British
Sterling for larger denomination foreign bills; and that some of the
British currency he exchanged included low-denomination Scottish pound
notes, which are a hallmark of drug money. Furthermore, we also believe
that the extrinsic conduct was highly relevant to rebut Bekar’s claim
that he was an unwitting dupe. See United States v. Nahoom, 791 F.2d
841, 845 (11th Cir. 1986) (finding that evidence of defendant’s money
laundering activities relevant to determining whether defendant
possessed requisite intent to engage in drug conspiracy).
The admission of these records and Officer Bishop’s testimony about
them did not substantially outweigh the evidence’s probative value. As
noted above, during opening statements, Bekar’s lawyer introduced to the
jury the fact that Bekar’s T.E.B. account had been used, at least in
part, to launder drug money, with or without Bekar’s knowledge. The
20
business records demonstrated nothing more than that fact, and Officer
Bishop’s testimony amounted largely to the inferences he drew from his
observations of Bekar and the matters related to the T.E.B. records.
Accordingly, we find no abuse of discretion by the district court in
allowing the government to present this evidence to the jury.
Conclusion
Bekar’s conviction is AFFIRMED.
21