United States v. Bah, No. 07-4370 (2d Cir. 2009)

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07-4370-cr United States v. Bah 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT August Term, 2008 (Argued: November 25, 2008 Decided: July 31, 2009) Docket No. 07-4370-cr - - - - - - - - - - - - - - - - - - - -x UNITED STATES OF AMERICA, Appellee, -v.- 07-4370-cr BOUBACAR BAH, Defendant-Appellant. - - - - - - - - - - - - - - - - - - - -x Before: JACOBS, Chief Judge, WALKER and CALABRESI, Circuit Judges. Defendant-Appellant Boubacar Bah appeals from a 30 judgment of conviction entered October 5, 2007 in the United 31 States District Court for the Southern District of New York 32 (Kaplan, J.). 33 count of operating an unlicensed money transmitting business 34 in violation of 18 U.S.C. § 1960. 35 district court erred in refusing to give Bah s requested Bah was convicted after a jury trial on one We conclude that the 1 jury instruction on the scope of Section 1960. 2 remanded. 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 Vacated and MICHAEL A. YOUNG, New York, NY , for Defendant-Appellant. ANIRUDH BANSAL, Assistant United States Attorney (Christopher LaVigne and Kevin R. Puvalowski, Assistant United States Attorneys, on the brief), for Michael J. Garcia, United States Attorney for the Southern District of New York, New York, NY , for Appellee. DENNIS JACOBS, Chief Judge: Defendant-Appellant Boubacar Bah appeals from a 18 judgment of conviction, entered October 5, 2007 after a jury 19 trial in the United States District Court for the Southern 20 District of New York (Kaplan, J.), on one count of operating 21 an unlicensed money transmitting business in New York in 22 violation of 18 U.S.C. § 1960. 23 There is no doubt that Bah received money in New York 24 for transmittal abroad; Bah tried to defend on the ground 25 that the money he received in New York was transmitted from 26 New Jersey, and that he was licensed to operate a money 27 transmitting business in that state. 28 precluded Bah in limine from offering evidence of the New 29 Jersey license, reasoning that the federal statute 2 The district court 1 prohibited operating a money-transmitting business that is 2 unlicensed under state law, and that Section 1960 thus 3 incorporates into federal law the provision in New York 4 Banking Law § 650 that prohibits (inter alia) engaging 5 without a license in the businesses of transmitting money or 6 receiving money for transmission. 7 determined that Bah could be convicted under Section 1960 if 8 he engaged in New York in the business of receiving money 9 for transmission without a license, regardless of whether he The court therefore 10 transmitted the money pursuant to a valid license in New 11 Jersey. 12 effect at the conclusion of trial. 13 The district court gave a jury instruction to that Bah argues that the district court erred in: 14 [i] refusing to give his requested charge on the scope of 15 Section 1960; [ii] precluding him from offering evidence of 16 his New Jersey license; [iii] permitting the government to 17 cross-examine a character witness concerning a five-year-old 18 customer complaint; and [iv] denying him Criminal Justice 19 Act funding to call thirteen witnesses from overseas. 20 We hold that the district court erred in concluding 21 that Section 1960 incorporates into federal law the feature 22 of New York Banking Law § 650 that prohibits engaging in the 3 1 business of receiving money for transmission without a 2 license. 3 charge and the presentation of evidence and argument at 4 trial. This error tainted the district court s jury 5 We cannot determine from the record whether Bah was 6 convicted for operating an unlicensed money transmitting 7 business, which is prohibited by federal law, or for 8 engaging (without a license) in the business of receiving 9 money for transmission, which is prohibited by New York law, 10 but not federal law. 11 evidence that Bah (who had several legitimate businesses) 12 had transmitted money abroad from a Banco Popular branch in 13 the Bronx, it is not clear beyond a reasonable doubt that a 14 properly instructed jury would have found that the 15 transmittals from New York were part of a money transmitting 16 business, as opposed to one of Bah s various other 17 enterprises. 18 remand for a new trial . 19 remaining claims in anticipation of a potential retrial, and 20 find them to be without merit. Although the government adduced We therefore vacate Bah s conviction and We go on to consider Bah s 21 22 4 1 2 BACKGROUND In 2003, Drug Enforcement Administration agents 3 learned that heroin traffickers in the Bronx had used a 4 company named B&S Bah Enterprises to transmit suspected drug 5 proceeds. 6 operated by Bah from an office in a restaurant he owned at 7 1715 Webster Avenue in the Bronx, New York. 8 arrested Bah on April 21, 2006, he consented to a search of 9 his restaurant in the Bronx and of his home and office in Agents discovered that B&S Bah Enterprises was When agents 10 Fort Lee, New Jersey, and he answered the agents questions 11 about his businesses. 12 On February 27, 2007, Bah was charged in a three-count 13 indictment with conspiring to commit money laundering, in 14 violation of 18 U.S.C. § 1956(h); operating an unlicensed 15 money transmitting business, in violation of 18 U.S.C. 16 § 1960; and making false statements at a December 21, 2006 17 meeting with the government, in violation of 18 U.S.C. 18 § 1001. 19 severed because the government s key witness had fled to 20 Africa. 21 April 4, 2007, and concluded on April 6, 2007, when the jury 22 convicted Bah on the money-transmitting count and acquitted On the eve of trial, the money laundering count was Trial on the remaining two counts commenced on 5 1 2 him on the false-statements count. The Government s Case. At trial, the government 3 introduced evidence establishing that certain customers came 4 to Bah s restaurant in the Bronx, delivered U.S. currency, 5 and instructed Bah to deliver the equivalent value of local 6 currency to recipients in West Africa. 7 customers with receipts and/or codes to ensure that the 8 money was received by the correct party overseas. 9 Bah provided Bronx The government s evidence included testimony from four 10 customers who delivered money to Bah in the Bronx for 11 transmission to Guinea or Sierra Leone. 12 evidence consisted mainly of items seized from the office at 13 the back of the restaurant on Webster Avenue: a laptop 14 computer; an electric money counter; money receipts for [a] 15 money transmission business (blank and filled out); faxes 16 addressed to Bah requesting transfers of United States 17 currency; spreadsheets and ledgers bearing the name B&S Bah 18 Enterprises and the Bronx address, and showing records of 19 money transfers; business cards for B&S Bah Enterprises at 20 the Webster Avenue address, with Bah listed as President, 21 and the words Money Transfer, Import & Export, Shipping ; 22 and a commercial lease application dated July 18, 2002, 6 The physical 1 signed by Bah, for B&M Bah Money Remittance Corp., listing 2 Bah s Existing Business Address as 1715 Webster Avenue in 3 the Bronx, and Bah s Years in Business as 6 years. 4 The government also introduced bank records showing 5 that B&S Bah Enterprises transferred more than $1.2 million 6 through a Banco Popular branch in the Bronx, during the 7 period from January 2002 through August 2002. 8 was opened in October 2001 in Bah s name and listed 1715 9 Webster Avenue as the company s address. The account At the time Bah 10 closed the account, the bank was investigating his account 11 activity because of the number of monthly deposits, and 12 because 95 to 97 percent of the deposit proceeds were 13 transferred to foreign accounts. 14 Other prosecution evidence included a statement from a 15 2004 civil deposition in which Bah explained the operation 16 of his money transmitting business and his arrangement for 17 transferring money through businesses in Africa; and a 18 letter, dated October 14, 1999, to the then Immigration and 19 Naturalization Service ( INS ), on letterhead of B&S Bah 20 Enterprises with the Bronx address, advertising Import & 21 Export, Money Transfer[], and Shipping services. 22 letter to the INS explained that the purpose of his business 7 Bah s 1 was to arrange the transfer of funds to countries in West 2 Africa. 3 The government introduced Bah s admissions to federal 4 agents: that he had looked into obtaining a money 5 transmitting license in New York State, but determined that 6 it was too expensive; 1 that he had money transmitting 7 receipts at his restaurant in the Bronx because he often 8 brought documents from New Jersey to do accounting work in 9 New York; and that, of the $50,000 to $60,000 he collected 10 each week, $15,000 to $20,000 was collected in New York. 11 Bah stipulated at trial that neither he nor B&S Bah 12 Enterprises had ever been licensed by the State of New York 13 for the businesses of receiving money for transmission or 14 transmitting money and that B&S Bah Enterprises had never 15 registered with the United States Treasury as a money 16 transmitting business. 17 Bah s Defense. Bah testified as follows in his own 18 defense. 19 as a means by which African immigrants living in this 20 country could avoid corruption and theft in certain African He opened B&S Bah Enterprises in New York in 1999 1 Bah testified at trial that he would have needed $500,000 cash to obtain a license in New York because of bond requirements. 8 1 banking systems. 2 States, Bah s company purchased products (such as food, 3 clothing, electronics, and building supplies) that were 4 delivered to his native Guinea and other African countries. 5 After several years of operating his export/import 6 business, Bah was approached by customers wanting to safely 7 deliver cash to friends and family in Africa. 8 need, Bah opened a money transmitting business in New Jersey 9 named B&M Bah Enterprises, Inc. 2 10 In exchange for payment in the United To meet this Bah did not transfer money directly from the United 11 States to Africa. 12 customers in the United States gave him cash, which he used 13 to purchase goods to sell in Africa. 14 goods to African merchants and used the proceeds to pay 15 money transfer recipients. 16 Rather, he set up a system whereby Bah then sold those Bah did not operate a money transmitting business prior 17 to opening his New Jersey business in 2002; records pre- 18 dating that business concerned the transmission of money 19 overseas for the purpose of purchasing goods for export. 2 Although Bah was not permitted to introduce evidence of his New Jersey money transmitting license at trial, it is undisputed that Bah obtained such a license on or about June 13, 2002, and that he registered his New Jersey business with the federal government on or about September 23, 2002. 9 1 Bah called three character witnesses who testified to 2 his reputation for truthfulness in the community. 3 witnesses also testified that they had delivered money to 4 Bah in the United States as payment for the delivery of food 5 or goods to Guinea. 6 after the district court permitted the government to cross- 7 examine a witness regarding an unsigned 2002 letter 8 allegedly written by one of Bah s customers accusing him of 9 fraud and theft. 10 Sentencing. The Bah stopped calling character witnesses At sentencing, it was determined that Bah 11 had an offense level of four and a Criminal History Category 12 of one, resulting in a United States Sentencing Guidelines 13 ( Guidelines ) range of 0-6 months incarceration. 14 district court adopted the Probation Department s 15 recommendation and sentenced Bah to a term of one year s 16 probation and a $1,000 fine. 17 that no greater sentence was necessary because the crime of 18 conviction was a strict liability offense, and it appeared 19 that Bah was attempting to follow the law while supporting 20 himself and serving a legitimate need in his community. 21 district court declined to resolve outstanding Guidelines 22 calculation issues because it considered that the sentence The The district court explained 10 The 1 it was imposing was sufficient to satisfy the factors set 2 forth in 18 U.S.C. § 3553. 3 sentence imposed by the district court. 4 whether Bah has served his sentence; but the ramifications 5 of his conviction under the immigration laws may be 6 significant. Neither party challenges the It is unclear 7 8 DISCUSSION 9 I 10 11 12 13 14 15 16 17 18 A. Scope of 18 U.S.C. § 1960 Bah was convicted under 18 U.S.C. § 1960, which provides (in relevant part): (a) Whoever knowingly conducts, controls, manages, supervises, directs, or owns all or part of an unlicensed money transmitting business, shall be fined in accordance with this title or imprisoned not more than 5 years, or both. 19 18 U.S.C. § 1960(a). 20 includes transferring funds on behalf of the public by any 21 and all means including but not limited to transfers within 22 this country or to locations abroad by wire, check, draft, 23 facsimile, or courier. 24 money transmitting business includes a money transmitting [T]he term money transmitting Id. § 1960(b)(2). 11 An unlicensed 1 business which affects interstate or foreign commerce in any 2 manner or degree and . . . is operated without an 3 appropriate money transmitting license in a State where such 4 operation is punishable as a misdemeanor or a felony under 5 State law. 3 6 Id. § 1960(b)(1)(A). New York Banking Law § 650 is one such licensing 7 statute.4 8 requirements for two distinct activities: [i] engag[ing] in 9 the business of receiving money for transmission or 10 Subsection (2)(a)(1) establishes licensing [ii] transmitting the same. Only the latter licensing 3 The other kind of unlicensed money transmitting business relevant under Section 1960 is one that fails to comply with the money transmitting business registration requirements under section 5330 of title 31, United States Code. 18 U.S.C. § 1960(b)(1)(B). 4 New York Banking Law § 650 provides that [a]ny person who . . . engages in the business of receiving money for transmission or transmitting the same . . . without a license therefor obtained from the superintendent as provided in this article, shall be guilty of a Class A misdemeanor. N.Y. Banking Law § 650(2)(a). New York Banking Law § 650(2)(b) provides increased penalties for offenses involving the transfer of $10,000 or more in a single transaction, a total of $25,000 or more during a period of thirty days or less, or a total of $250,000 or more during a period of one year or less. The New York Banking Law makes the operation of an unlicensed money transmitting business either a misdemeanor or a felony, which in turn subjects the offender to federal criminal penalties under 18 U.S.C. § 1960. United States v. Velastegui, 199 F.3d 590, 594 (2d Cir. 1999). 12 1 requirement, however, is incorporated into federal law: 2 Section 1960 explicitly defines money transmitting as 3 transferring funds on behalf of the public by any and all 4 means. 5 101-460, at 36 (1990), reprinted in 1990 U.S.C.C.A.N. 6645, 6 6681 ( Money transmitting means transferring funds on 7 behalf of the public. ). 8 mention the receipt of money for transmission. 9 18 U.S.C. § 1960(b)(2); see also S. Rep. No. The federal statute does not It is not surprising that the New York statutory 10 prohibition is broader than the federal. 11 enacted in order to combat the growing use of money 12 transmitting businesses to transfer large amounts of the 13 monetary proceeds of unlawful enterprises. 14 v. Velastegui, 199 F.3d 590, 593 (2d Cir. 1999) (citing S. 15 Rep. No. 101-460, at 14 (1990), reprinted in 1990 16 U.S.C.C.A.N. 6645, 6658-59). 17 alia, to prevent the movement of funds in connection with 18 drug dealing and terrorism. 19 (2001) . 20 identify and monitor the transmissions themselves. Section 1960 was United States The statute is designed, inter H.R. Rep. No. 107-250(I), at 54 For these purposes, it is sufficient to be able to 21 The New York statute reflects that state s broader 22 interest in licensing and regulating financial institutions. 13 1 See, e.g., N.Y. Banking Law § 642(1) (requiring 2 Superintendent of Banks to assess the financial condition 3 and responsibility, financial and business experience, 4 character and general fitness of a prospective money 5 transmission licensee and to determine whether the 6 applicant s business will be conducted honestly, fairly, 7 equitably, carefully[,] efficiently . . ., and in a manner 8 commanding the confidence and trust of the community ). 9 York also stands to lose licensing fees if licensees from New 10 (say) New Jersey can seek business in New York. 11 Banking Law §§ 18-a(4), 641(3) (prescribing an 12 investigation fee for any application for a money 13 transmitting license). 14 the New York statute do not expand the reach of the federal 15 statute. 16 B. Bah s Requested Jury Instruction 17 See N.Y. However, the broader prohibitions of We review de novo a district court s refusal to issue a 18 requested jury instruction. 19 F.3d 193, 198 (2d Cir. 2008). 20 burden of showing that the requested instruction accurately 21 represented the law in every respect and that, viewing as a 22 whole the charge actually given, he was prejudiced. United States v. Desinor, 525 [T]he defendant bears the 14 1 United States v. Nektalov, 461 F.3d 309, 313-14 (2d Cir. 2 2006) (quoting United States v. Wilkerson, 361 F.3d 717, 732 3 (2d Cir. 2004)). 4 Pre-trial, the district court observed that New York 5 Banking Law § 650 makes it unlawful to engage[] in the 6 business of receiving money for transmission, and ruled 7 that there would be a violation of federal law if 8 defendant s activities in New York amounted to engaging in 9 th[at] business. United States v. Bah, No. S1 06 CRIM. 10 0243 LAK, 2007 WL 1032260, at *3 (S.D.N.Y. Mar. 30, 2007) 11 (alteration in original, emphasis omitted). 12 court thus assumed that because New York law on the subject 13 prohibits engag[ing] in the business of receiving money for 14 transmission, federal law does likewise. 15 was error. 16 17 18 19 20 21 22 23 24 25 26 27 The district That assumption At the conclusion of trial, Bah requested the following jury instruction on the scope of Section 1960: 1960 does not make it unlawful to receive money for transmission without a license. It makes it unlawful to engage in the business of receiving money for transmission. There was a violation of the statute only if defendant s activities amount[ed] to engaging in the business of receiving money for transmission, not if his activities constituted merely receiving money for 15 1 transmission. 2 The government objected to this instruction on the ground 3 that it made insufficiently clear that Bah could be 4 convicted if he engaged in the business of receiving money 5 for transmission. 6 was the final clause, which stated that there was no 7 violation of the statute if his activities constituted 8 merely receiving money for transmission. 9 this clause potentially misleading, because merely The district court agreed: the problem The court found 10 receiving money for transmission could violate the statute 11 if the receipt was sufficiently frequent and the volume 12 sufficiently great to constitute a business. 13 Bah argued that no matter how often he received money 14 in New York, any activity there was ancillary to his 15 licensed New Jersey business and not unlawful, especially 16 because no money was ever transmitted in New York. 17 the charging conference ended, Bah sought an instruction 18 consisting of one sentence: 1960 does not make it unlawful 19 to receive money for transmission without a license. 20 government objected on the same ground as before, and the 21 district court rejected this formulation as well. 22 first requested charge would have done him little good, and 16 Before The Bah s 1 we express no view on the denial of that request; the second 2 requested charge went to the heart of the matter, and the 3 denial of that request was error. 5 4 The jury was instructed (accurately, as far as it went) 5 that the laws of New York State require that any person who 6 engages in the business [of] receiving money for 7 transmission or of transmitting money to be licensed as a 8 money transmitter by the New York State Department of 9 Banking, and that the parties in this case have 10 stipulated, in other words[,] they have agreed, that the 11 defendant never obtained a license from the State of New 12 York to engage in the business of receiving money for 13 transmission or for transmitting money. 14 one-sentence charge requested by Bah, the jury had no 15 occasion to focus on whether Bah conducted an unlicensed 5 But absent the Bah s initial request suffered from the same infirmity as the instruction given by the district court: it would have permitted the jury to convict if Bah was in the business of receiving money for transmission. To the extent that Bah s initial request inaccurately stated the law, it was consistent with the flawed analysis in the district court s in limine ruling, which was binding at trial. Thus, Bah initially sought the best instruction he could reasonably hope for given the district court s ruling. When the district court rejected that proposal, Bah requested a legally accurate instruction reflecting his understanding of the scope of Section 1960. Bah secured a ruling on that request and preserved the issue for appellate review. 17 1 2 business of transmitting money from New York. Bah s requested charge constituted an accurate 3 statement of the law: while New York law prohibits engaging 4 in the unlicensed business of receiving money for 5 transmission, federal law does not. 6 district court s charge as a whole, we conclude that the 7 jury was likely misled as to the scope of Section 1960 in 8 the absence of Bah s requested language. 9 Even viewing the At oral argument on appeal, the government explained 10 resourcefully [i] that Section 1960 prohibits conduct[ing], 11 control[ling], manag[ing], supervis[ing], direct[ing], or 12 own[ing] all or part of an unlicensed money transmitting 13 business, 18 U.S.C. § 1960(a) (emphasis added), and 14 [ii] that receiving money is part of conducting a money 15 transmitting business. 16 government s analysis, the receipt of money would be 17 prohibited only if it is incident to an unlicensed money 18 transmitting business. 19 federal charge (not a basis for conviction) that Bah 20 received money in New York (in violation of the New York 21 licensing laws) and transmitted the money via his licensed However, even accepting the Thus, it would be a defense to the 18 1 business in New Jersey. 6 2 C. Harmless Error Analysis 3 An erroneous instruction, unless harmless, requires a 4 new trial. 5 1994). 6 reasonable doubt that a rational jury would have found the 7 defendant guilty absent the error. 8 Quattrone, 441 F.3d 153, 177 (2d Cir. 2006) (internal 9 quotation marks omitted). 10 Anderson v. Branen, 17 F.3d 552, 556 (2d Cir. An error is harmless only if it is clear beyond a United States v. Under the jury charge as given, Bah s defense at trial 11 --that he received money in New York for transmission in New 12 Jersey--amounted to a concession of guilt. 13 to an unqualified instruction that the receipt of money in 14 New York for transmission from New Jersey was no violation 15 of federal law. 16 Bah must have been engaged in the business of receiving Bah was entitled The proviso (emphasized in the charge) that 6 An issue was raised at oral argument as to whether Bah receiving money in New York and transporting it to New Jersey would itself constitute unlawful transmission, because the statute prohibits unlicensed transfers within this country. 18 U.S.C. § 1960(b)(2). So long as Bah (or his agents) maintained possession of any payments, the movement of the money across state lines would not itself violate the statute, because Section 1960 prohibits the transfer of money, not the transportation of money by an individual. 19 1 2 money for transmission did not repair the omission. The charge sharply undermined Bah s argument that his 3 activities in New York were ancillary to his New Jersey 4 business. 5 times that Bah could not be convicted for receiving money in 6 New York, but the district court sustained the government s 7 objections. 8 9 Defense counsel tried arguing to the jury several The prejudice was exacerbated by the emphasis placed by the government on particular evidence. For example, the 10 government made much of the fact that $15,000 to $20,000 of 11 the $50,000 to $60,000 Bah received weekly was collected in 12 New York. But under Section 1960 it should not matter how 13 much money Bah received in New York, unless he transmitted 14 it in violation of New York law. 15 highlighted a stack of blank receipts found in the Bronx 16 restaurant. 17 transmission, they would not be decisive to a properly 18 instructed jury. 19 Similarly, the government But because the receipts were not evidence of The government argues in its brief that its most 20 direct[] evidence consisted of the essentially 21 uncontradicted testimony of four of Bah s customers who 22 dropped off money in the Bronx that was later transferred to 20 1 Africa. 2 from where--the money was transmitted. 3 witnesses dropped off money that later arrived in Africa is 4 not inconsistent with Bah s defense that he received money 5 in New York for transmission from New Jersey. 6 of the New Jersey license thus makes this an unusual case. 7 7 But those witnesses did not testify as to how--or The fact that the The existence Much of the government s remaining evidence was not 8 probative as to Bah s operation of an unlicensed money 9 transmitting business in New York during the indictment 10 period. 11 records, correspondence, receipts, and business records that 12 predated the time of the alleged violation of section 1960. For example, the government introduced bank 7 Ordinarily, evidence that customers delivered money for transmission overseas, and that the money was in fact transmitted overseas, would be powerful evidence in a prosecution under Section 1960. But this was not an ordinary Section 1960 prosecution. No circuit court has addressed a case in which a defendant who operated a licensed, registered money transmitting business was charged with operating an unlicensed business in a neighboring state. Two cases from our Court are instructive as to the types of cases that are typically brought under the statute. In Velastegui, we analyzed New York law and held that the agent of a licensee who transmits money directly to a foreign country . . . is operating a money transmitting business without a license as prohibited by section 1960. 199 F.3d at 595 (emphasis added). In United States v. Elfgeeh, 515 F.3d 100, 110 (2d Cir. 2008), we affirmed the convictions where the defendants knew they needed to obtain a license to transmit money, but never obtained a license in any state. 21 1 The government also introduced numerous records of money 2 transfers from New Jersey, which were executed lawfully 3 pursuant to Bah s New Jersey license. 4 properly have been convicted based on this evidence. 5 Bah could not To prove a violation of Section 1960, the government 6 was required to come forward with evidence that Bah was in 7 the business of transmitting money from New York during the 8 period charged in the indictment: January 1, 2002, up to and 9 including August 21, 2006. The government introduced two 10 kinds of evidence that would show such a violation: bank 11 records showing that (from January 2002 through August 2002) 12 B&S Bah Enterprises transferred more than $1.2 million 13 through a Banco Popular branch in the Bronx; and 14 spreadsheets and charts (from March 2002 through August 15 2002) bearing the address of the Bronx restaurant, with 16 columns on senders and recipients names, a column headed 17 refunds, a column with codes for recipients in Africa, and 18 lists of sums in United States dollars with names and 19 contact information for individuals in Conakry, Guinea. 20 These bank records, spreadsheets, and charts were probative 21 evidence that Bah operated an unlicensed money transmitting 22 business in New York. 22 1 However, Bah rebutted this evidence. He testified that 2 the transfers from Banco Popular were to facilitate the sale 3 of goods such as televisions, food, and oil, and that the 4 Banco Popular account was never used to send to cash to 5 overseas recipients. 6 testified that he listed transactions by dollar amount-- 7 instead of by the quantity of good to be delivered--to 8 account for fluctuations in currency exchange rates, so that 9 overseas recipients would receive goods equal to the dollar 10 With respect to the spreadsheets, Bah value paid by United States customers. 11 There is reason to think that the jury found Bah s 12 testimony credible: Bah was acquitted on the count that 13 charged him with lying to government agents when he told 14 them [i] that he never remitted money through his New York 15 business and [ii] that he first began operating a money 16 transmitting business in the summer of 2002. 17 this charge by testifying that his New York business only 18 engaged in the import and export of goods. 19 suggests that the jury believed his testimony. Bah contested His acquittal 20 In order for the jury to have acquitted as to false 21 statements while convicting as to money transmission, it 22 seems more than likely that its verdict on money 23 1 transmission rested on something other than Bah transmitting 2 money from New York. 3 court s charge, would have been Bah s receipt of money in 4 New York for transmission from New Jersey. 5 the jury s verdict, we cannot conclude beyond a reasonable 6 doubt that a properly instructed jury would have found Bah 7 guilty. 8 9 That something, under the district In short, given Where an instruction defining one of two alternative grounds is legally erroneous, a court must reverse unless it 10 can determine with absolute certainty that the jury based 11 its verdict on the ground on which it was correctly 12 instructed. United States v. Joseph, 542 F.3d 13, 18 (2d 13 Cir. 2008). In this case, the district court s instruction 14 left the jury free to convict for either of two activities 15 prohibited by New York Banking Law § 650(2)(a)(1): 16 [i] engag[ing] in the [unlicensed] business of receiving 17 money for transmission or [ii] transmitting the same. 18 Given the strength of the government s evidence as to 19 receipt (and Bah s concession that many customers left money 20 in New York for him to transmit from New Jersey), the jury 21 had no need or reason to reach the decisive (and more 22 difficult) question of whether Bah transmitted money from 24 1 2 New York. The jury charge allowed Bah to be convicted for lawful 3 activity incident to his New Jersey business. 4 are not absolute[ly] certain[] that the jury found Bah 5 guilty for the appropriate reason, Bah is entitled to a new 6 trial. Because we 7 8 II 9 Bah challenges the grant of the government s motion in 10 limine to preclude evidence that he was licensed to conduct 11 a money transmitting business in New Jersey. 12 district court s evidentiary rulings for abuse of 13 discretion, and will reverse only if we find that there was 14 a violation of a substantial right. 15 Ebbers, 458 F.3d 110, 122 (2d Cir. 2006). We review a United States v. 16 The district court precluded the introduction of 17 evidence of Bah s New Jersey license after concluding that 18 Section 1960 and New York Banking Law § 650 both impose 19 strict liability on the operator of an unlicensed money 20 transmitting business, and that neither statute requires a 21 defendant to know that he must obtain a license. 22 not challenge these legal conclusions. 25 Bah does Rather, he argues 1 that the ruling erroneously prevented him from arguing that 2 he reasonably believed his limited activities in New York 3 did not constitute operating a money transmitting business 4 in that state. 5 The district court did not abuse its discretion in 6 ruling, before trial, that Bah could not offer evidence of 7 his New Jersey license. 8 been limited to Bah s money transmitting activities in New 9 York, evidence of Bah s New Jersey license would not have 10 11 If the presentation of evidence had supported a viable defense. 8 We do not hold, however, that the district court would 12 have erred had it denied the government s motion. 13 district court s evidentiary ruling responded to arguments 14 premised on each party s theory of how to try the case, 15 which were in turn influenced by the district court s 16 expressed view of what the government had to prove. 8 The This Having prevailed on its in limine motion to preclude Bah from introducing evidence of his New Jersey license, the government introduced reams of bank records from New Jersey showing money transfers related to Bah s New Jersey business. By introducing this evidence, the government arguably opened the door to Bah introducing evidence of his New Jersey license, but this argument was not raised at trial or on appeal. Cf. United States v. Stewart, 433 F.3d 273, 308 (2d Cir. 2006); United States v. Beers, 189 F.3d 1297, 1300 (10th Cir. 1999). 26 1 opinion alters the case, and re-conceives the nature of the 2 offense the government can prosecute. 3 reconsider its ruling if the government elects to conduct a 4 second trial. The court may wish to 5 6 III 7 Bah contends that the district court improperly 8 permitted the government to cross-examine one of his 9 character witnesses about a letter from a former customer 10 11 accusing him of fraud. Federal Rule of Evidence 404(a)(1) permits a defendant 12 to offer character evidence. 13 introduce such evidence, the government may question the 14 defendant s witnesses regarding relevant specific instances 15 of conduct. 16 court s decision to allow the question[ing] for abuse of 17 discretion, bearing in mind that once a defendant offers 18 character testimony, the prosecution is afforded substantial 19 latitude to rebut such evidence. 20 479 F.3d 179, 190 (2d Cir. 2007) (internal quotation marks, 21 citations and alteration omitted). 22 If a defendant chooses to Fed. R. Evid. 405(a). We review the district United States v. Reich, Bah called three character witnesses. 27 One of them, 1 Amadou Diallo, testified that Bah had a reputation for 2 truthfulness in the community, and cited an instance in 3 which Bah helped resolve a situation between Diallo and 4 Bah s brother. 5 permitted the government--over Bah s objection--to question 6 Diallo about a letter in which a former customer accused Bah 7 of fraud. 8 accusation and that it did not impact his view of Bah or his 9 reputation in the community. On cross-examination, the district court Diallo testified that he was unaware of the 10 Bah cites the Eighth Circuit s decision in United 11 States v. Monteleone, 77 F.3d 1086 (8th Cir. 1996), for the 12 proposition that a prosecutor may only cross-examine a 13 character witness based on events likely to have become a 14 matter of general knowledge, currency or reputation in the 15 community, id. at 1090 (internal quotation marks omitted). 16 In Monteleone, the character witness was cross-examined 17 about the defendant s alleged perjury before a grand jury 18 investigating a drug crime. 19 proceedings are required by law to be kept secret, 20 Monteleone ruled that the government lacked a good faith 21 basis for believing that the defendant s alleged perjury was 22 likely to have been known in the witness s community. Id. 28 Because grand jury Id. 1 Monteleone, of course, is not binding in our circuit, 2 but even if it were, this case is distinguishable for three 3 reasons. 4 did not derive from a secret proceeding; to the contrary, 5 the author of the letter expressed a desire that Bah s 6 actions be widely publicized to other customers and the 7 Better Business Bureau. 8 not involve criminal conduct, but dishonesty in Bah s 9 business dealings--information closely related to the First, the evidence presented on cross-examination Second, the challenged evidence did 10 subject of Diallo s direct testimony, and far less 11 inflammatory (and potentially prejudicial) than the evidence 12 at issue in Monteleone. 13 that the Eighth Circuit has limited Monteleone to cases 14 involving reputation evidence and that it has been more 15 permissive in admitting evidence to impeach opinion 16 testimony. 17 Diallo testified as to his personal opinion of Bah. 18 these reasons, Monteleone is unpersuasive. 19 Third, we have previously observed See Reich, 479 F.3d at 190-91. In this case, For In light of the substantial latitude afforded the 20 government to rebut character witness testimony offered by 21 the defense, the district court did not abuse its discretion 22 in permitting the government to question Diallo about the 29 1 complaint against Bah. 2 3 4 IV Bah s final challenge is to the district court s denial 5 of funds to fly thirteen defense witnesses from overseas to 6 testify at trial, and to fly Bah s counsel overseas to 7 depose three witnesses. 8 [i] he was denied his Due Process right to present a 9 complete defense, see California v. Trombetta, 467 U.S. 479 Bah argues, inter alia, that: 10 (1984); [ii] he was denied his Sixth Amendment rights to 11 compulsory process and confrontation of witnesses, see 12 Howard v. Walker, 406 F.3d 114 (2d Cir. 2005); [iii] he was 13 denied equal protection of the laws because of his inability 14 to pay for a defense, see Ake v. Oklahoma, 470 U.S. 68 15 (1985); and [iv] he was denied his right under the Criminal 16 Justice Act ( CJA ) to funding for services necessary for 17 adequate representation, 18 U.S.C. § 3006A(e)(1). 18 A district court may authorize the expenditure of funds 19 exceeding $500 under the CJA only when necessary for 20 adequate representation. 21 also United States v. Durant, 545 F.2d 823, 827 (2d Cir. 22 1976) (discussing necessity requirement for requests for CJA 18 U.S.C. § 3006A(e)(1)-(2); see 30 1 funding). 2 requests under Federal Rule of Criminal Procedure 15, which 3 governs taking depositions in criminal trials, and Federal 4 Rule of Criminal Procedure 17(b), which directs district 5 courts to issue subpoenas on behalf of indigent defendants 6 and provides for payment of costs for those witnesses. 7 A similar necessity requirement applies to The decision to grant or deny funding under these rules 8 is committed to the discretion of the district court. 9 United States v. Salameh, 152 F.3d 88, 118 (2d Cir. 1998) 10 (explaining that a district court judge is obligated to 11 exercise his discretion in determining whether funds are 12 necessary under the CJA (internal quotation marks omitted)); 13 United States v. Whiting, 308 F.2d 537, 541 (2d Cir. 1962) 14 ( [A] motion made under Rule 15 is addressed to the 15 discretion of the trial court. ). 16 See Bah failed to establish that the witnesses were 17 necessary for his defense. 18 elicit would, at best, have established that the particular 19 witnesses called from overseas did not work with Bah in a 20 money transmitting business prior to the date (September 23, 21 2002) that Bah registered his New Jersey business with the 22 federal government. The testimony Bah wished to Such evidence would not have dissuaded 31 1 a jury from finding that Bah operated an unlawful business 2 in that time with other people. 3 lacked probative value with respect to Bah s activities 4 after September 23, 2002. 5 Further, the evidence Bah s request also lacked specificity as to: whether 6 the witnesses had agreed to fly to this country, whether 7 they could obtain visas, what countries they would be flying 8 from, why the testimony of all thirteen witnesses was 9 necessary, or what their dealings with Bah were. Similarly, 10 Bah provided no estimate of expense. 11 Knox, 540 F.3d 708, 717-19 (7th Cir. 2008) (affirming denial 12 of funding request under CJA and Rule 15 for flying attorney 13 to West Africa to investigate and depose witnesses because 14 request and cost estimate were not sufficiently specific). 15 The district court did not abuse its discretion in denying 16 Bah s unqualified request for funds. See United States v. 17 18 CONCLUSION 19 Because the district court erred in refusing to give 20 Bah s requested charge on the scope of Section 1960, Bah s 21 conviction is vacated, and the case is remanded for a new 22 trial. 32

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