Unpublished Disposition, 883 F.2d 1025 (9th Cir. 1989)

MEMORANDUM^** 

Yolanda S. Areu appeals her conviction of one count of conspiracy to structure transactions to evade reporting requirements and launder money in violation of 18 U.S.C. § 371; three counts of structuring transactions, to evade reporting requirements, in violation of 31 U.S.C. §§ 5324 and 5322(b); and two counts of money laundering, in violation of 18 U.S.C. § 1956.

Areu first claims that the district court improperly admitted evidence that a trained dog alerted in a manner showing that money was tainted with drugs. We review the admission of evidence under an abuse of discretion standard. United States v. Hobson, 519 F.2d 765, 771, (9th Cir), cert. denied 423 U.S. 931 (1975). A Deputy Sherrif instructed a bank employee to hide the money within the bank. The dog alerted to $6,800 of the $7,000 hidden by the employee. Areu argued that the admission of this evidence was irrelevant and prejudicial. We reject the argument. The evidence was probative and "obviously relevant as having a tendency to make the existence of a fact more probable than it would be without the evidence." United States v. Hernando Ospina, 798 F.2d 1570, 1583 (11th Cir. 1986). See Fed.R.Evid. 401. The dog's reaction to the money bears on the probability that the money had originated from an illegal source. United States v. Guerrera, 554 F.2d 987, 989 (9th Cir. 1977).

Areu contends that admission of evidence regarding the dog's training and behavior was prejudicial. See Fed.R.Evid. 403. We disagree. This testimony was relevant to the credibility of the dog sniff evidence. Furthermore the judge made a limiting instruction. Nothing more was required.

Areu objects to the admission of inaudible portions of the court recording of the district court proceedings. She claims that the incomplete recording prevents review of the record in its entirety and thereby prevents the protection of her due process rights. She also argues that the district court violated 28 U.S.C. § 753(b) which states:

"Each session of the court and every other proceeding designated by rule or order of the court or by one of the judges shall be recorded verbatim by shorthand, mechanical means, electronic sound recording or any other method.... Proceedings to be recorded under this section include ... all proceedings in criminal cases had in open court...."

We recognize the mandatory requirements of this statute. However, reversal is only warranted if the error affects specific constitutional rights. Brown v. United States, 314 F.2d 545, 548 (9th Cir. 1977). In reviewing criminal convictions on appeal, we disregard "error ... which does not affect a substantial right". Fed. R. Crim. P. 52(a).

Areu complains specifically of four sidebar discussions with inaudible portions on the court transcript. The recorded transcript makes clear what is being discussed. The unrecorded portions were not a hindrance to Areu's appeal.

Areu next contends that there was insufficient evidence to support the convictions. We consider the sufficiency of the evidence in a light most favorable to the prosecution. The question is whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318-319 (1979); United States v. Marabelles, 724 F.2d 1374, 1377 (9th Cir. 1984).

Elements necessary to show a violation of 31 U.S.C. § 5324 are that Areu knew currency transaction reporting requirements and that she either 1) caused, or attempted to cause, a domestic financial insititution to fail to file a currency transaction report, or 2) structured or assisted in structuring a currency transaction with one or more domestic financial insitutions with the purpose of evading the reporting requirements. The jury heard testimony that a Pasadena First Bank employee explained to Areu what a CTR was and why it had to be filed. No CTR's were filed with respect to transactions that involved less than $10,000. Areu instructed others to exchange cash for money orders and cashier checks, all in less than $10,000 amounts which she had deposited into VIP Escrow's accounts.

Areu attempted to explain making smaller deposits. Her explanations were controverted by bank employees. The jury chose to believe the bank employees. We respect the "province of the jury to determine the credibility of the witness." United States v. Goode, F.2d 1353, 1355 (9th Cir. 1987), quoting United States v. Ramos, 558 F.2d 545, 546 (9th Cir. 1977).

A violation of 31 U.S.C. § 5322(b) requires either that a person violate Title 31 "while violating another law of the United States;" or the particular violation of Title 31 is part of "a pattern of illegal activity involving transactions of more than $100,000 in a twelve month period."

Areu violated Sec. 5324 of Title 31 while transacting over $100,000 within a twelve month period. She deposited into VIP Escrow's Union Bank account $187,000 between February 16 and February 20, and $186,000 between February 21 and February 25.

To satisfy the requirements of 18 U.S.C. § 1956(a) (1), the evidence must establish that Areu conducted a financial transaction which involved the proceeds of narcotics trafficking; that she knew that the property involved was proceeds of some form of unlawful activity and that she either (a) intended to promote the carrying on of narcotics trafficking; or (b) knew that the transaction was designed in whole or in part to conceal or disguise the nature, location, source ownership or control of proceeds.

The jury heard evidence that Areu deposited money at banks involved with interstate commerce which satisfies the requirement of a "financial transaction". An IRS Branch Chief testified that this money laundering scheme was typical of Colombian laundering schemes for proceeds from cocaine. He based his opinion on numerous factors including Areu's instructions to banks for immediate wire of deposits to New York or Miami. From there the money was subsequently wired to Bogota Colombia. His testimony was corroborated by the dog sniff evidence. The escrow files that were created by Areu were sham files concealing the true source of the money. Areu received money from Salcedo who testified that he assumed that the money was drug money and testified that he met with Areu periodically to "change illegal money into legal money." Areu took elaborate measures to insure that the money was not traced back to Salcedo, including filling out false CTRs in the name of VIP Escrow. This evidence satisfies the elements of Sec. 1956.

The essential elements of conspiracy in violation of 18 U.S.C. § 371 are: 1) an agreement to accomplish an illegal objective; 2) coupled with one or more overt acts in furtherance of the illegal purpose, and 3) the requisite intent necessary to commit the underlying substantive offense. United States v. Reese 775 F.2d 1066, 1071 (9th Cir. 1985). The record shows sufficient evidence to support the conspiracy charge.

AFFIRMED