In U.S. v. Silvestri, (May 23, 2005), the Court (Black, Marcus, Smith b.d.) upheld the conviction and sentence of a defendant convicted of money laundering the proceeds of an elaborate mail fraud.
The Court rejected challenges to the sufficiency of the evidence. The Court noted that for a the conspiracy counted, the government only had to show that the defendant knew either the insufficiency of the assets of the corporation into which investors were told to invest, or the illegitimate use of investor’s funds. The Court found that the government showed that the defendant "well knew of both aspects of the fraud."
The Court also rejected a sufficiency of the evidence challenge to the convictions for substantive money laundering. The Court rejected the argument that mere deposit of investor funds into bank accounts could not constitute money laundering. The Court recognized the caselaw which holds that money laundering cannot occur until the unlawful activity is completed. The Court pointed out, however, that for mail fraud, the crime is complete before the checks are deposited, as the offense is already complete when the letter containing a false representation is put in the mail.
The Court also rejected the argument that Silvestri should not be held accountable for the acts of co-conspirators for which he lacked knowledge. Citing the Pinkerton doctrine, the Court noted that the government need only show that the co-conspirator’s conduct was "reasonably foreseeable" to the defendant. The Court found that the government met this burden.
The Court rejected a challenge to a jury instruction. Citing the "invited error" doctrine, the Court pointed out that when a lawyer responds to a proposed instruction with the words "the instruction is acceptable to us," such action constitutes invited error. Here, defense counsel expressly accepted the language of the now-challenged instruction.
Finally, citing U.S. v. Levy, 379 F.3d 1241 (11th Cir. 2004), the Court rejected a Booker challenge to the sentence, pointing out that the issue was not raised in Silvestri’s initial brief, and was therefore waived.
