United States v. Samuel Ness, Docket No. 05-4401-cr (2d Cir. Oct. 10, 2006) (Winter, Calabresi, Pooler): This decision confirms a split among the Circuits concerning the meaning of the concealment element of the “transaction” and “transportation” money laundering statutes, 18 U.S.C. § 1956(a)(1)(B)(i) & (1)(2)(B)(i). Specifically, while some Circuits have ruled that the defendant has “conceal[ed] or disguise[d] the nature, the location, the source, the ownership, or the control of the proceeds of specified unlawful activity” only where s/he has attempted to create a false appearance that the funds are legitimate, e.g., United States v. Cuellar, 441 F.3d 329 (5th Cir. 2006), the Second Circuit has ruled that the concealment element is satisifed merely by a showing that defendant has engaged in conduct designed to conceal the identity of the funds, see United States v. Gotti, 459 F.3d 296 (2d Cir. 2006).
Applying Gotti to this case, the Circuit rejects Ness’s sufficiency challenge where the evidence at trial showed that he, the operator of an armored car carrier business, delivered cash from drug sellers to drug suppliers and attempted to hide (for obvious reasons) the fact that he was doing so. Op. 4. Ness likely would have prevailed in the Fifth Circuit, which vacated a money-laundering conviction based on evidence showing that the defendant hid drug money in the floorboard of his car while driving toward Mexico. Cuellar, supra.