United States v. Kosmel, Roman ( 2001 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 00-4294
United States of America,
Plaintiff-Appellee,
v.
Roman Kosmel,
Defendant-Appellant.
Appeal from the United States District Court
for the Central District of Illinois.
No. 99 CR 40088 JJoe B. McDade, Chief Judge.
Argued October 29, 2001--Decided November 29, 2001
Before Flaum, Chief Judge, and Posner and
Diane P. Wood, Circuit Judges.
Flaum, Chief Judge. Appellant Roman
Kosmel represented himself during his
criminal trial for unlawfully harboring
illegal aliens, encouraging aliens to
reside unlawfully in the United States,
engaging in a pattern of unlawfully
hiring aliens, money laundering, and
engaging in transactions with criminally
derived funds. Kosmel now claims that his
choice to proceed pro se was not knowing
and intelligent. Kosmel also appeals
several sentencing rulings following the
jury’s conviction. For the reasons stated
herein, we affirm Kosmel’s conviction,
but remand the case for resentencing.
I. Background
Kosmel, a Czech citizen, entered the
United States as a tourist in April 1996.
Although authorized to remain in the
country only until October 2, 1996,
Kosmel stayed beyond the expiration of
his visa and worked as a janitor for Uni
versal Maintenance, Inc. ("Universal").
Universal provided cleaning services for
Jewel Food Stores throughout Illinois.
During his tenure as a Universal
employee, Kosmel and his wife deposited
into their personal savings account the
paychecks of other Czech citizens
unlawfully employed by Universal. During
a ten-month period, Kosmel deposited 63
checks, totaling $52,419.
Kosmel must have performed admirably at
Universal because in November 1997,
Universal’s owner encouraged him to
incorporate a floor-cleaning business
called Roman Services, Inc. ("Roman").
Universal then subcontracted with Roman,
which assumed responsibility for cleaning
seven Jewel stores in the Quad Cities
area and in Springfield, Illinois.
Between November 1997 and October 1999,
Roman employed approximately 40 citizens
of the Czech Republic who were not
authorized to work in the United States.
Universal paid Roman $15,000 per month to
perform the cleaning services, and Roman
paid its Czech employees from these
funds.
Kosmel hired his illegal employees by
following a general pattern./1 Czech
nationals arrived in the United States
and obtained class B-2 visas./2 Czech-
speaking individuals already residing in
the United States then contacted the new
arrivals and arranged transportation to
meet Kosmel, who transported them to
apartments in the Quad Cities and
Springfield, Illinois. Kosmel hired the
Czechs to work at Roman, paid them near
minimum wage for their services, and
deducted amounts for rent and occasional
use of an automobile. Kosmel also became
a frequent visitor to the local Social
Security office, where he translated
documents for his employees, filled out
papers and showed office personnel their
passports. While most employees received
a Social Security card that read "not
valid for employment," Kosmel later
removed this language in an attempt to
"take care of" his new employees’
paperwork.
A brief example illustrates Kosmel’s
scheme. Jaromir Tenev arrived in Atlanta
on November 19, 1998, and obtained a
class B-2 visitor visa. Soon after
arriving in Atlanta, a Czech-speaking man
approached Tenev, offered him a
janitorial job, and arranged for Tenev to
travel by bus to Davenport, Iowa, all for
a $500 fee. In Davenport, Tenev met
Kosmel, who allowed Tenev to stay in an
apartment in Silvis, Illinois. Kosmel
also informed Tenev that he could arrange
documentation that would allow Tenev to
work lawfully in the United States. Tenev
gave Kosmel his visa, and Kosmel hired
Tenev to work for Roman. Tenev earned $40
per night cleaning floors at Jewel, minus
deductions for rent and other
incidentals.
Kosmel opened two commercial checking
accounts to conduct the financial
business of Roman, one under the name
"Cleaning Services, Inc." and the other
under "Roman Service, Inc." Over a two-
year period, Kosmel deposited 42 checks
totaling $344,262 in both accounts. From
these accounts, Kosmel paid a total of
$107,238.50 in wages to his 40 Czech
employees. Included within this amount
were checks for $3,386 (drawn on the
Cleaning Services account and paid to
Marek Vencl) and $1,230 (drawn on the
same account and issued to Petr
Krhovkjak). Kosmel also used the two
commercial checking accounts to make rent
payments totaling $14,643 to three
different landlords who owned the
apartments where Kosmel stashed his Czech
employees.
Kosmel did not limit his activity to the
cleaning business. During his time in the
Quad Cities, Kosmel arranged for several
Czech women to perform as topless dancers
at a local nightclub. Kosmel extorted the
women, demanding between 20-40% of their
earnings, plus additional compensation
for airline tickets, visa "assistance,"
and his personal invitation to travel to
the United States.
In late 1998, Kosmel became concerned
about his own immigration status. Kosmel
approached his neighbor’s daughter,
Colleen Davis, and asked her to
participate in a sham marriage. In
exchange for $10,500, Davis consented to
marry Kosmel so he could "become a
citizen" and remain in the country. The
scheme unfolded as planned--Kosmel
married Davis, paid her $3,500 in cash,
and submitted petitions to the
Immigration and Naturalization Service
for a change in immigration status. Soon
thereafter, the government indicted
Kosmel.
In October 1999, the district court
appointed the Federal Defender’s office
to represent Kosmel. After a brief
period, Kosmel became dissatisfied,
complained to the district court, and
asked to proceed pro se. The district
court convened a hearing, at which Kosmel
changed his mind about self-
representation and instead requested new
counsel. Kosmel’s existing attorney
explained to the court that Kosmel wanted
to present fraudulent immigration
documents to the jury. When the federal
defender refused to go along, Kosmel
initially asked to proceed pro se, but a
stern admonishment from the district
court led Kosmel to try his luck with
another lawyer.
The district court appointed substitute
counsel, and the case proceeded to trial.
The court selected and impaneled a jury,
gave preliminary instructions, and asked
if counsel needed to resolve any
remaining issues prior to opening
statements. At that point, Kosmel
indicated through his attorney that he
wanted to participate in his own defense
by questioning some witnesses at trial.
The district court rejected that request
and stated:
It doesn’t work that way. You either
represent yourself or you have an
attorney represent you. You can’t have it
both ways. You can’t represent yourself
for some reasons and then let the
attorney do the other things. It doesn’t
work that way. It’s got to be one or the
other. If you choose to represent
yourself, I would appoint standby
counsel, which means he’s there to advise
you.
Kosmel decided that self-representation
was the way to proceed. Following a brief
recess, the district judge ascertained
whether Kosmel’s Sixth Amendment waiver
was knowing and voluntary. The district
court (again) warned Kosmel about the
dangers associated with self-
representation. The court also instructed
that Kosmel could not change his mind if
he later believed self-representation was
a mistake. At that point, Kosmel’s
attorney relayed his client’s request and
asked whether it was possible to continue
as counsel, ". . . but should [Kosmel]
decide at some point during the trial he
wants to take over the case, that he
could take over at that point." The court
again refused and responded:
No. If you need more time to think about
this I’ll give you more time, but we’re
going to make one decision. We’re not
going to have this where, okay, Judge, I
want to do it, but I want to wait and see
how things are going and then test the
waters, and then if things are going the
way I think it is, then I may want you to
do it. I think you’ve got to decide
whether or not you want to do it or you
want your attorney to do it.
The district court gave Kosmel until the
next day to decide, at which time Kosmel
elected to represent himself. The
district court appointed standby counsel
to assist Kosmel. The jury ultimately
convicted Kosmel on nine counts,
including unlawfully harboring aliens,
encouraging aliens to reside unlawfully
in the United States, engaging in a
pattern of unlawfully hiring aliens,
money laundering, and engaging in
monetary transactions with criminally
derived funds.
Kosmel also represented himself during
the sentencing hearing, where he filed
several objections, three of which are
relevant to this appeal. First, Kosmel
objected to the use of the money
laundering guideline because his true
criminal conduct was harboring illegal
aliens. Second, Kosmel objected to the
amount of money that he could be
accountable for laundering. Third, Kosmel
objected to the addition of 2 points for
obstruction of justice. In issuing this
last enhancement, the district court
ruled that Kosmel provided materially
false information to the interviewing
probation officer regarding how much
money he earned conducting the scheme.
The district court credited the testimony
of the probation officer’s supervisor,
who testified because a blizzard
prevented Kosmel’s probation officer from
traveling on the day of the sentencing
hearing. The district court sentenced
Kosmel to 79 months imprisonment with
three years supervised release. Kosmel
appeals.
II. Discussion
A. Standards of Review
We review de novo the district court’s
finding of a waiver of the right to
counsel. United States v. Altier, 91 F.3d
953, 955 (7th Cir. 1996). Further, in all
sentencing disputes, we review the
district court’s findings of fact for
clear error and legal conclusions de
novo. See United States v. Brown, 71 F.3d
1352, 1360-61 (7th Cir. 1995).
B. Sixth Amendment Waiver
Kosmel first contends that the district
court incorrectly characterized the law
regarding self-representation, and that
this misstatement misled Kosmel into
waiving his Sixth Amendment right to
counsel. Specifically, after Kosmel
inquired about the possibility of
beginning trial with counsel and then
assuming control if he was dissatisfied,
the district court stated:
If you need more time to think about this
I’ll give you more time, but we’re going
to make one decision. We’re not going to
have this where, okay, Judge, I want to
do it, but I want to wait and see how
things are going and then test the
waters, and then if things are going the
way I think it is, then I may want you to
do it. I think you’ve got to decide
whether or not you want to do it or you
want your attorney to do it.
Kosmel contends that this either/or
proposition prevented him from making a
knowing and intelligent waiver of the
right to counsel. We disagree.
While a criminal defendant’s right to
self-representation is well settled,
Faretta v. California, 422 U.S. 806
(1975), that right depends upon the time
at which the defendant asserts it. For
example, if a defendant asks to proceed
pro se before trial commences, then that
request is absolute and must be granted.
United States v. Oakey, 853 F.2d 551, 553
(7th Cir. 1988). However, once trial
commences, the district court retains
discretion to balance the interests of
the defendant against the potential
disruption of the proceedings already in
progress. Id.
Here, although the district court never
expressly balanced Kosmel’s interests
with the potential for disruption, the
court’s myriad discussions regarding
Kosmel’s self-representation had the same
practical effect. The sequence of events
in this case illustrates why this is so.
According to his first attorney, Kosmel
insisted on introducing fraudulent
immigration documents and making several
frivolous motions. When counsel
appropriately refused to go along, Kosmel
asked for a new attorney. The district
court obliged and appointed substitute
counsel, even though Kosmel’s first
lawyer had acted competently. The new
arrangement failed to please Kosmel, who
subsequently asked to proceed pro se. The
district court entertained this request
as well, admonishing Kosmel about the
dangers of self-representation.
Thoroughly apprised, Kosmel decided that
he wanted a lawyer, but asked if he could
question some witnesses during trial.
When the district court denied that
request, Kosmel asked if he could "take
over" if he was dissatisfied with
counsel’s representation.
Given the posturing that occurred here,
we cannot conclude that Kosmel’s waiver
was anything but knowing and intelligent.
Critically, nothing in the district
court’s comments to Kosmel indicates that
the court would have precluded Kosmel
from assuming control of his defense
based upon a showing of good cause. Under
these circumstances-- where the defendant
never clearly articulated his true
desire, the defendant’s motivation was
most likely improper, and the district
court properly exercised its discretion
to deny the defendant’s request--the
district court acted properly in trying
to impose some finality on Kosmel’s
decision. See United States v. Moya-
Gomez, 860 F.2d 706, 736 (1988) (listing
the context of the defendant’s decision
to proceed pro se as one factor
indicating a knowing and intelligent
waiver of the right to counsel).
Moreover, it is not entirely clear from
the record whether Kosmel wanted to "take
over" entirely, or whether he wanted to
engage in a prohibited form of hybrid
representation, in which a defendant
serves as co-counsel during the course of
trial. Kosmel seems to conflate the two
"rights," which is important because one
is not a right at all. In fact, this
Circuit clearly disfavors any form of
hybrid representation, see Cain v.
Peters, 972 F.2d 748, 750 (7th Cir.
1992), because "it allows a defendant to
address the jury, in his capacity as
counsel, without being cross-examined, in
his capacity as a defendant." United
States v. Oreye, 263 F.3d 669, 672-73
(7th Cir. 2001) (citing Oakey, 853 F.2d
at 553). There are other systemic
problems with hybrid representation,
including prolongation of the trial and
allowing defendants "two bites at the
apple." Id. Kosmel’s indecision triggers
the very same concerns, and the district
court acted properly in prohibiting
Kosmel from acting as co-counsel.
Accordingly, we find that the district
court fully and adequately informed
Kosmel of his Sixth Amendment rights, and
Kosmel’s waiver was knowing and
intelligent.
Finally, it is important to note that
no case holds that an absolute right of
self-representation exists after
trialbegins. Rather, all of the cases
cited by Kosmel reflect a rather basic
principle, i.e., the district court has
broad discretion in granting mid-trial
requests to proceed pro se. See Oakey,
853 F.2d at 553; United States v. Noah,
130 F.3d 490, 498 (1st Cir. 1997); United
States v. Stevens, 83 F.3d 60, 66 (2d
Cir. 1996); United States v. Wesley, 798
F.2d 1155, 1156 (8th Cir. 1986). Here
Kosmel’s argument confuses necessary and
sufficient conditions. Simply because the
district judge has discretion to grant a
defendant’s request does not mean that he
or she is required to do so.
C. The Proper Sentencing Guideline
Kosmel next argues that the district
court erred in sentencing him under the
money laundering guideline, U.S.S.G. sec.
2S1.1. Kosmel maintains that because his
money laundering activity was nothing
more than a part of his scheme to harbor
illegal aliens, the district court should
have relied on U.S.S.G. sec. 2L1.1
(harboring illegal alien guideline).
Doing so would result in a significant
reduction in Kosmel’s sentence. In
support of his argument, Kosmel relies on
two distinct sources, neither of which
survives scrutiny.
The first is the introduction to
Appendix A of the Sentencing Guidelines,
which instructs courts deciding
"atypical" cases to "use the guideline
section most applicable to the nature of
the offense conduct charged in the count
of which the defendant was convicted."
See U.S. Sentencing Guidelines Manual
app. A (1995). While this language
appears to support Kosmel’s claim, his
citation to the introductory language is
entirely misplaced. Recently, the
Sentencing Commission deleted the entire
text upon which Kosmel relies. See U.S.
Sentencing Guidelines Manual app. C,
amend. 591 (effective Nov. 1, 2000)
("Amendment 591"). In explaining the
justification for Amendment 591, the
Commission expressed concern that some
courts had selected a sentencing
guideline different from that listed in
the Statutory Index. Instead, the
Commission cautioned courts to "apply the
offense guideline referenced in the
Statutory Index for the statute of
conviction." Id. Here, the jury convicted
Kosmel of money laundering.
As a general rule, a court imposes a
sentence based upon the guidelines in
effect as of the date of sentencing. See
U.S.S.G. sec. 1B1.11(a); United States v.
Hall, 212 F.3d 1016, 1022 (7th Cir.
2000). Amendment 591 went into effect on
November 1, 2000, and the district court
sentenced Kosmel on December 20, 2000.
Thus, Amendment 591 applies in Kosmel’s
case, unless "applying the version of the
guidelines in effect at the time of
sentencing would violate the ex post
facto clause of the Constitution (e.g.,
if the guidelines were amended to the
defendant’s detriment after the offense
was committed)." In such cases, the court
should apply the version in effect at the
time of the commission of the offense.
See United States v. Booker, 70 F.3d 488,
490 n.3 (7th Cir. 1995) (citing United
States v. Harris, 41 F.3d 1121, 1123 (7th
Cir. 1994)); see also U.S.S.G. sec.
1B1.11(b)(1). Thus, resolution of this
issue depends on whether Seventh Circuit
case law allowed lower courts to decline
to apply the money laundering guideline.
Put another way, we must decide whether
Amendment 591 effected a change in
circuit law that prejudiced Kosmel.
In attempting to discern the state of
this Circuit’s case law prior to
Amendment 591, Kosmel relies principally
on United States v. Rubin, 999 F.2d 194,
196 (7th Cir. 1993). In that case, we
vacated a sentence imposed under the mail
fraud guideline, as opposed to the less-
punitive price-fixing provision. This
court reversed the sentence because "the
defendants’ mail fraud was directly
related to the price-fixing scheme and
was not a separate course of conduct."
Id. at 199. Kosmel notes that several
other circuits have adopted similar
reasoning and have applied it to the
money laundering guideline. See United
States v. Smith, 186 F.3d 290, 298 (3d
Cir. 1999); United States v. Woods, 159
F.3d 1132, 1133 (8th Cir. 1998); United
States v. Hemmingson, 157 F.3d 347, 361-
63 (5th Cir. 1998).
While Kosmel accurately characterizes
Rubin, we find it unavailing to his
claim. In reversing defendant’s sentence
in Rubin, this court relied extensively
on Application Note 13 to the mail fraud
guideline, which expressly states that
"where the indictment or information
setting forth the count of conviction . .
. establishes an offense more aptly
covered by another guideline, apply that
guideline rather than sec. 2F1.1."/3
There is no similar Application Note
relevant to the money laundering
guideline, and Kosmel’s attempt to seize
the introductory language of Appendix A
is not an adequate proxy.
Moreover, in United States v. Buckowich,
243 F.3d 1081 (7th Cir. 2001), this
Circuit expressly rejected the approach
adopted by the Third and Eighth Circuits.
Buckowich involved a defendant who argued
that the court should disregard her
conviction for money laundering and base
the sentence strictly on the fraud
guideline. In rejecting this argument,
the court stated that the defendant "was
convicted of both wire fraud and money
laundering; the judge in sentencing must
consider both offenses and may not act as
if the defendant had been convicted of
just one." Id. at 1084. See also, United
States v. Griffith, 85 F.3d 284, 289 (7th
Cir. 1996) ("Congress has explicitly
rejected a recent proposal by the
Sentencing Commission to reduce the money
laundering offense levels to correspond
more closely to those assigned to the
underlying criminal activity."). It is
clear that Amendment 591 did not alter
the state of the law in this circuit.
Accordingly, the proper course--and the
one the district court followed--was to
sentence Kosmel under the money
laundering guideline.
Faced with this authority, Kosmel turns
to a second source, which is a proposed
amendment to the Sentencing Guidelines.
The Sentencing Commission recently
published on its website a proposed
amendment to the money laundering
guideline and explained that the
amendment would tie offense levels for
money laundering more closely to the
underlying criminal conduct. The proposal
creates two categories for determining
base offense levels. For direct money
launderers (such as in this case), the
sentencing court should set "the base
offense level at the offense level in
Chapter Two (Offense Conduct) for the
underlying offense." See
http://www.ussc.gov/2001guid/userfriendl
y2001.pdf, at 155. However, while it is
true that the proposed amendment reflects
a desire to tie offense levels to a
defendant’s underlying conduct, this
Circuit affords little weight to proposed
amendments, see United States v. Perez,
249 F.3d 583, 584 (7th Cir. 2001),
because "proposals to amend the
Guidelines do not invariably lead to
amendments--they must first be
promulgated and then left undisturbed by
Congress--and judges must apply the
Guidelines in force when a defendant is
sentenced." Id. This is particularly true
when Congress has rejected a similar
amendment in the recent past. See
Griffith, 85 F.3d at 289. Until the
Sentencing Commission formally enacts the
amendment, it is simply a proposal, and
we decline to adopt it as the law of this
Circuit.
One additional point bears mentioning.
Kosmel’s entire argument regarding the
inapplicability of the money laundering
guideline depends on the existence of an
"atypical" case. However, Kosmel offers
no support for why his conduct was
"atypical" money laundering, other than
that his conviction derived from several
nominal checks drawn on his commercial
checking accounts. This argument isolates
two financial transactions from a much
larger scheme, which involved more than
$350,000 in funds derived solely from
hiring illegal workers. The jury
obviously believed this was money
laundering in the "typical" sense because
they convicted Kosmel. Wholly
disregarding this particular conviction
during the sentencing phase would have
been improper.
D. Money Laundering Calculation
Kosmel next argues that if the money
laundering guideline applies, the
district court erred in its determination
of the amount of money for which the
court held Kosmel accountable. The
district court added $53,000 in paychecks
that Kosmel deposited in his personal
bank account on behalf of Universal
employees and the $344,000 that Universal
paid Roman. Kosmel contends that this
inclusion constituted error because the
check cashing activity occurred prior to
Kosmel opening Roman. Therefore, the
check cashing could not have been part of
the scheme to launder funds.
U.S.S.G. sec. 2S1.1(b)(2) enhances the
base offense level under the money
laundering guideline depending on "the
value of the funds." The Commentary to
sec. 2S1.1 suggests that the amount of
money involved is a factor because it is
an indicator of the magnitude of the
criminal enterprise. Because the value of
the funds is a specific offense
characteristic, this Court evaluates the
defendant’s relevant conduct to determine
the dollar amounts involved. United
States v. Baker, 227 F.3d 955, 964 (7th
Cir. 2000). Relevant conduct, in turn,
includes "all acts and omissions
committed, aided, abetted, counseled,
commanded, induced, procured, or
willfully caused by the defendant."
U.S.S.G. sec. 1B1.3(a)(1).
Kosmel argues that personal financial
transactions cannot form the basis for
money laundering convictions, let alone
form the basis for calculating the "value
of the funds" involved. In support of
this proposition, Kosmel cites United
States v. Jackson, 935 F.2d 832 (7th Cir.
1991). However, Jackson is easily
distinguishable from the present case in
two critical ways. First, Jackson
involved a challenge to a money
laundering conviction, and not the
calculation of the value of funds
associated with the illegal activity. The
two are quite different because courts
may include funds associated with
uncharged instances of money laundering
to determine a defendant’s offense level,
provided those acts are within the scope
of relevant conduct under sec. 1B1.3. See
Baker, 227 F.3d at 965; United States v.
Sokolow, 91 F.3d 396, 411 (3d Cir. 1996).
Second, Jackson involved a defendant who
engaged in personal financial
transactions bearing no relation to the
underlying criminal conduct. See Jackson,
935 F.2d at 841 (expenditures for
personal cellular phone, rent payments
and cash "maintained [the defendant’s]
lifestyle, but more than this is needed
to establish that they promoted his drug
activities.")./4
We do not agree that Kosmel’s check
cashing activities were purely personal
financial transactions. In fact, Kosmel’s
two assertions that his conduct was
unrelated to the illegal scheme and that
he reaped no benefit from cashing
employees’ checks are disingenuous. It is
true that Kosmel cashed the Universal
employees’ checks prior to opening Roman;
however, the financial support Kosmel
provided to the illegal workers certainly
contributed to his later scheme, even if
Roman’s formal incorporation came later.
Clearly, depositing checks on behalf of
illegal aliens promotes the unlawful
activity at issue here, particularly when
the depositor possessed full knowledge of
the illegality, later engaged in the very
same practices, and used the very same
employees. See Baker, 227 F.3d at 965.
Consequently, all of the funds relied
upon by the district court are relevant
conduct as the Guidelines define that
term.
Moreover, there is no basis, as Kosmel
suggests, for excluding the $344,000
received from Universal. Although the
government did not charge Kosmel for
these transactions, they were certainly
part of the scheme for which Kosmel was
convicted. Accordingly, the district
court’s calculation did not constitute
plain error.
E. Obstruction of Justice Enhancement
Finally, Kosmel contends that the
district court improperly enhanced his
sentence for obstruction of justice. The
district court held that Kosmel provided
materially false information to Mary
Seaton, Kosmel’s probation officer, by
allegedly misrepresenting the amount of
money he earned from the illegal scheme.
Although Seaton asked about earnings from
his work as a laborer, Kosmel claims that
she failed to ask him about any
additional money he received from
Universal. In support of this contention,
Kosmel notes that the district court
never heard testimony from Seaton, who
could not travel to the sentencing
hearing due to a late-term pregnancy and
a substantial snowfall. Instead, Valerie
Martin, who is Seaton’s supervisor,
testified. Martin stated that Seaton
probably did not ask Kosmel about the
payments from Universal because they had
not learned of them at the time of
Seaton’s initial interview.
Under U.S.S.G. sec. 3C1.1, a district
court may enhance a defendant’s sentence
if "the defendant willfully obstructed or
impeded . . . the administration of
justice during the course of the
investigation, prosecution, or
sentencing" of the defendant. Providing a
materially false statement to a probation
officer with respect to a presentence
report can form the basis for the
obstruction enhancement. See sec. 3C1.1,
n.4 (h) (2000); United States v. Garcia,
69 F.3d 810, 817 (7th Cir. 1995).
However, in cases of allegedly false
responses, the district court must
determine whether the defendant
specifically intended to obstruct justice
or whether a potentially misleading
answer derived from "confusion, mistake
or faulty memory." United States v. Gage,
183 F.3d 711, 715 (7th Cir. 1999) (citing
United States v. Dunnigan, 507 U.S. 87,
94 (1993)).
The problem in this case is that the
record does not reveal whether Kosmel’s
allegedly misleading statement was "will
ful" because Seaton never testified about
what she asked Kosmel. See Jackson, 935
F.2d at 849. There must be some evidence
in the record to support the district
court’s ruling enhancing Kosmel’s
sentence. United States v. Ewing, 129
F.3d 430, 434 (7th Cir. 1997) ("Section
3C1.1 requires specific intent to
obstruct justice."). Due to unforseen
circumstances, the record is bereft of
such evidence. Accordingly, we vacate the
obstruction of justice enhancement
andremand to the district court to
ascertain the precise nature of Seaton’s
interview with Kosmel./5
III. Conclusion
While we AFFIRM Kosmel’s conviction and
the balance of his sentence, on the
record before us there is an absence of
evidence to support the district court’s
two-point enhancement for obstruction of
justice. For the foregoing reasons, we
REVERSE that aspect of the district
court’s sentence and REMAND this case for
proceedings consistent with this opinion.
FOOTNOTES
/1 Although the government presented evidence of at
least five Roman employees at trial, we will
describe generally Kosmel’s practice of hiring
illegal aliens.
/2 Class B-2 visas are issued to visitors who are in
the United States for pleasure. The government
does not permit B-2 visa holders to work while in
the United States.
/3 The current Guidelines Manual has an identical
provision, which is now labeled Application Note
14.
/4 Moreover, contrary to Kosmel’s assertion, the
Jackson court ultimately affirmed the defendant’s
money laundering conviction. The money laundering
statute protects against two distinct forms of
laundering--promotion and concealment, see Jack-
son, 935 F.2d at 842, and the court held that the
defendant concealed assets by turning cash into
goods. In this case, we need not address whether
Kosmel’s activity constituted concealment under
18 U.S.C. sec. 1956 (a)(1)(B)(i) because the
government concedes that Kosmel’s money launder-
ing promoted the underlying criminal conduct.
/5 The result in this case is probably inevitable.
The district court engaged Kosmel in a rather
lengthy colloquy regarding whether he told Seaton
that he was just a laborer earning $40-$50 per
day. Kosmel provided evasive answers and never
satisfactorily answered the court’s question.
Moreover, it is difficult to fathom any question
where Kosmel’s answer concerning his compensation
($40-$50 per week as a laborer) would be truth-
ful, unless Seaton somehow limited her inquiry to
Kosmel’s first few weeks at Universal.