United States of America v. John R. Prince (98-6361), Tony White (98-6362)

*The Honorable Sandra S. Beckwith, United States District Judge for
the Southern District of Ohio, sitting by designation.
1
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2000 FED App. 0186P (6th Cir.)
File Name: 00a0186p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
UNITED S TATES OF AMERICA ,
Plaintiff-Appellee,
v.
J OHN R. P RINCE (98-6361),
TONY W HITE (98-6362),
Defendants-Appellants.
;>

1
Nos. 98-6361/6362
Appeal from the United States District Court
for the Western District of Tennessee at Jackson.
No. 97-10044—James D. Todd, District Judge.
Argued: December 16, 1999
Decided and Filed: June 1, 2000
Before: MERRITT and SILER, Circuit Judges;
BECKWITH,* District Judge.

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2 United States v. Prince, et al. Nos. 98-6361/6362
_________________
COUNSEL
ARGUED: April R. Ferguson, OFFICE OF THE FEDERAL
PUBLIC DEFENDER FOR THE WESTERN DISTRICT OF
TENNESSEE, Memphis, Tennessee, G. William Hymers III,
HARDEE, MARTIN, JAYNES & IVY, Jackson, Tennessee,
for Appellants. Richard Leigh Grinalds, ASSISTANT
UNITED STATES ATTORNEY, Jackson, Tennessee, for
Appellee. ON BRIEF: April R. Ferguson, OFFICE OF THE
FEDERAL PUBLIC DEFENDER FOR THE WESTERN
DISTRICT OF TENNESSEE, Memphis, Tennessee, G.
William Hymers III, HARDEE, MARTIN, JAYNES & IVY,
Jackson, Tennessee, for Appellants. Richard Leigh Grinalds,
ASSISTANT UNITED STATES ATTORNEY, Jackson,
Tennessee, for Appellee.
_________________
OPINION
_________________
BECKWITH, District Judge. Defendant Prince raises on
appeal three issues challenging his convictions. Defendant
White raises on appeal two issues challenging his convictions
and two issues challenging his sentence.
Beginning on or around January 2, 1991, Defendant White
devised and engaged in a scheme to “defraud and obtain
money by means of false and fraudulent pretenses,
representations and promises.” Defendant White represented
to certain individuals that he was “bonded with” the U.S.
Bankruptcy Court and that this enabled him to buy assets
involved in bankruptcies which he could then sell for a
sizeable profit. Defendants Prince and White solicited
individuals to invest in their alleged plan to purchase and then
sell these assets. Investors contributed money for purchasing
property and for covering alleged costs associated with
purchasing property involved in bankruptcies, e.g., taxes,
accountant fees, closing costs, etc. The government

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50 United States v. Prince, et al. Nos. 98-6361/6362
case. Noticing losses in her report that the victims had not
reported previously, Mr. Appleton contacted the victims and
requested sworn statements. The sworn statements were
consistent with the IRS report except for a few inconsistencies
which Mr. Appleton explained. The district court found that
the victim impact statements used in the preparation of the
presentence investigation report were more accurate than the
referenced pieces of testimony. The court noted that the
referenced pieces were incomplete and often taken out of
context, and that some testimony related to a time midway in
the scheme. The court found that the victim impact
statements clearly supported a conclusion that the probation
officer’s calculation of over one million was justified. The
court was not clearly erroneous in adopting those calculations.
For the reasons provided above, the judgment of the district
court is AFFIRMED.
Nos. 98-6361/6362 United States v. Prince, et al. 3
established at trial that individuals could not purchase
property from the bankruptcy court as was represented by
Defendants.
According to the evidence presented at trial, Defendants
physically obtained investors’ money through one of three
types of arrangements. Under one arrangement, Defendants
directed investors to wire transfer the money into the bank
accounts of third parties. Per a pre-arranged agreement with
either or both Defendants, the third party wrote a check in the
amount of the transfer, cashed that check, and then transferred
the money in cash to Defendant Prince. On at least a couple
of occasions, Prince received a personal check, rather than
cash, from the third party. On at least one occasion the third
party transferred the cash to another third party who then
transferred the cash to Prince. On all occasions Prince
eventually transferred the money to White. Prince explained
to some investors that money needed to be wired to a third
party’s account because Prince did not have a bank account
and/or that he was in bankruptcy and a monetary transfer
would cause the bankruptcy court to attach his account.
Under a second arrangement, Defendants directed investors
to wire transfer money via Western Union to third parties.
Per a pre-arranged agreement with either or both Defendants,
the third party signed for and received the money and then
transferred it in cash to Defendant Prince. Prince then
transferred to Defendant White the money received from the
third parties.
Under a third arrangement, Defendants directed investors
to wire transfer money via Western Union to Prince. Prince
signed for and received the money from a Western Union
representative. Prince then transferred the money to White.
It was not established at trial how Defendants disposed of
the money fraudulently obtained. Victims testified that they
had not received any of the money they had invested.
On May 18, 1998, a federal grand jury returned a
superseding indictment in which Counts 1 through 16 charged

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4 United States v. Prince, et al. Nos. 98-6361/6362
both Defendants with wire fraud and aiding and abetting the
commission of wire fraud and Counts 17 through 85 charged
both Defendants with money laundering and aiding and
abetting the commission of money laundering. A jury trial
commenced against Defendants on June 3, 1998. At the close
of the government’s case, the court entered a judgment of
acquittal on Count 33. The jury found Defendants guilty on
all remaining counts.
In the interest of economy, we will provide the remaining
relevant facts below as we address the issues raised on appeal.
A. Sufficiency of the Evidence
Defendant Prince contends that the evidence was
insufficient to convict him of money laundering.
The standard of review for a claim of insufficient evidence
is “whether, taking the evidence in the light most favorable to
the prosecution, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.”
United States v. Haun, 90 F.3d 1096, 1100 (6th Cir. 1996)
(citations omitted). A defendant challenging the sufficiency
of the evidence “‘bears a very heavy burden.’” United States
v. Wright, 16 F.3d 1429, 1439 (6th Cir. 1994) (citations
omitted), cert. denied, 512 U.S. 1243, 114 S.Ct. 2759, 129
L.Ed.2d 874 (1994). Circumstantial and direct evidence are
afforded the same weight. United States v. Blakeney, 942
F.2d 1001, 1010 (6th Cir. 1991) (citations omitted); United
States v. Griffith, 17 F.3d 865, 872 (6th Cir. 1994) (“‘[i]t has
long been recognized ... that circumstantial evidence ... can be
sufficient to support a jury’s determination...’”) (quoting
United States v. Scruggs, 549 F.2d 1097, 1104 (6th Cir.), cert.
denied, 434 U.S. 824, 98 S.Ct. 70, 54 L.Ed.2d 81 (1977)).
We will reverse a judgment for insufficient evidence if, after
viewing the record as a whole, we conclude that the judgment
is not supported by substantial and competent evidence.
Blakeney, 942 F.2d at 1010 (citing United States v. Ellzey,
874 F.2d 324, 328 (6th Cir. 1989)).
Nos. 98-6361/6362 United States v. Prince, et al. 49
(B) in the case of a jointly undertaken criminal
activity (a criminal plan, scheme, endeavor, or
enterprise undertaken by the defendant in
concert with others, whether or not charged as
a conspiracy), all reasonably foreseeable acts
and omissions of others in furtherance of the
jointly undertaken criminal activity,
that occurred during the commission of the offense
of conviction, in preparation for that offense, or in
the course of attempting to avoid detection or
responsibility for that offense;
(2) solely with respect to offenses of a character for
which § 3D1.2(d) would require grouping of
multiple counts, all acts and omissions described in
subdivisions (1)(A) and (1)(B) above that were part
of the same course of conduct or common scheme or
plan as the offense of conviction;
(3) all harm that resulted from the acts and omissions
specified in subsections (a)(1) and (a)(2) above, and
all harm that was the object of such acts and
omissions; and
(4) any other information specified in the applicable
guideline.
USSG § 1B1.3. The sentencing court must base its relevant
conduct approximation on reliable information, and the
approximation must be supported by a preponderance of the
evidence. Brawner, 173 F.3d at 971 (citations omitted).
Section 2S1.1 of the Sentencing Guidelines prescribes that the
sentencing court shall increase the base offense level for
money laundering depending on the amount of loss involved.
Defendant White contends that the trial court erroneously
adopted the loss calculations computed by Bobby Appleton,
the United States Probation Officer who prepared the
presentence report. White claims that testimonies at trial
establish a figure less than one million. At the sentencing
hearing, the government examined Mr. Appleton. He
explained that he originally based his loss calculations on a
report that he received from an IRS agent investigating the

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48 United States v. Prince, et al. Nos. 98-6361/6362
has failed to illustrate that his is an atypical case “where
conduct significantly differs from the norm.” Indeed, this
scenario is typical, rather than atypical of wire fraud and
money laundering schemes.
2. Value of losses
For the purpose of sentencing, the district court found that
the amount of the loss was more than one million dollars.
Defendant White objected to this determination at the time of
sentencing and raises this objection now on appeal. The
determination of amount of loss is important as section
2S1.1(b) of the Sentencing Guidelines provides for an
increase of anywhere from one to thirteen offense levels
depending solely on the amount of loss.
We review for clear error a district court’s findings of fact
in sentencing decisions. United States v. Gort-DiDonato, 109
F.3d 318, 320 (6th Cir. 1997); United States v. Hill, 79 F.3d
1477, 1481 (6th Cir. 1996) (citing 18 U.S.C. § 3742(e);
United States v. Hamilton, 929 F.2d 1126, 1130 (6th Cir.
1991)), cert. denied, 519 U.S. 858, 117 S.Ct. 158, 136
L.Ed.2d 102 (1996). A finding of fact is clearly erroneous
when “‘although there is evidence to support it, the reviewing
court on the entire evidence is left with the definite and firm
conviction that a mistake has been committed.’” Gort-
DiDonato, 109 F.3d at 320 (quoting United States v. Perez,
871 F.2d 45, 48 (6th Cir. 1989)). We review for clear error a
sentencing court’s factual findings concerning the amount of
loss for which the defendant is to be held accountable as
relevant conduct pursuant to Sentencing Guideline section
1B1.3(a)(1). See United States v. Brawner, 173 F.3d 966, 971
(6th Cir. 1999) (estimating the loss involved pursuant to the
fraud guidelines prescribed in USSG § 2F1.1). Relevant
conduct includes:
(1) (A) all acts and omissions committed, aided,
abetted, counseled, commanded, induced,
procured, or willfully caused by the defendant;
and
Nos. 98-6361/6362 United States v. Prince, et al. 5
118 U.S.C. section 1956(a)(1), provides as follows:
(a)(1) Whoever, knowing that the property involved in a financial
transaction represents the proceeds of some form of unlawful
activity, conducts or attempts to conduct such a financial transaction
which in fact involves the proceeds of specified unlawful activity–
(A)(i) with the intent to promote the carrying on of specified
unlawful activity; or
(ii) with intent to engage in conduct constituting a violation of
section 7201 or 7206 of the Internal Revenue Code of 1986; or
(B) knowing that the transaction is designed in whole or in part–
(i) to conceal or disguise the nature, the location, the source, the
ownership, or the control of the proceeds of specified unlawful
activity; or
(ii) to avoid a transaction reporting requirement under State
or Federal law,
shall be sentenced to a fine of not more than $500,000 or twice the
value of the property involved in the transaction, whichever is
greater, or imprisonment for not more than twenty years, or both.
Defendant Prince challenges his convictions for money
laundering under 18 U.S.C. section 1956(a)(1)(B)(i).1 The
elements of the charged money laundering offenses are:
(1) use of funds that are proceeds of unlawful activity;
(2) knowledge that the funds are proceeds of unlawful
activity; and (3) conduct or attempt to conduct a financial
transaction, knowing that the transaction is designed in
whole or in part to disguise the nature, location, source,
ownership or control of the proceeds.
United States v. Moss, 9 F.3d 543, 551 (6th Cir. 1993).
On appeal, Defendant Prince first asserts that the money
obtained through the offense of wire fraud did not become
proceeds of unlawful activity as defined in the money
laundering statute until he physically obtained the funds of the
wire transfer. He concludes that once he obtained these
funds, he did not conduct or attempt to conduct a transaction
and therefore he did not violate the statute. Second, Prince
argues that if a transaction occurred, the proof does not

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6 United States v. Prince, et al. Nos. 98-6361/6362
218 U.S.C. section 2 provides as follows:
(a) Whoever commits an offense against the United States or aids,
abets, counsels, commands, induces or procures its commission, is
punishable as a principal.
(b) Whoever willfully causes an act to be done which if directly
performed by him or another would be an offense against the United
States, is punishable as a principal.
318 U.S.C. section 1343, provides as follows:
Whoever, having devised or intending to devise any scheme or
artifice to defraud, or for obtaining money or property by means
of false or fraudulent pretenses, representations, or promises,
transmits or causes to be transmitted by means of wire, radio, or
television communication in interstate or foreign commerce, any
establish that it was conducted in an attempt to conceal the
nature and source of the money. Third, Prince contends that
there was “no substantial evidence” to support a conviction of
aiding and abetting.2
Prince has failed to establish that insufficient evidence
supports the three elements of money laundering.
1. Use of funds that are proceeds of an unlawful activity
Under the first element of money laundering, the funds
allegedly laundered by Defendant Prince must be the proceeds
of an unlawful activity. Specifically, the funds must represent
proceeds from some form of activity that constitutes a felony.
18 U.S.C. § 1956 (c)(1). “Proceeds” include “‘what is
produced by or derived from something (as a sale, investment,
levy, business) by way of total revenue.’” Haun, 90 F.3d at
1101 (quoting W EBSTER’S THIRD NEW INTERNATIONAL
DICTIONARY 1807 (1971)).
In this case, the indictment identifies wire fraud as the
underlying felony from which the proceeds were derived. The
elements of wire fraud, as prescribed under 18 U.S.C. section
1343,3 are as follows: (1) a scheme or artifice to defraud; (2)
Nos. 98-6361/6362 United States v. Prince, et al. 47
party for the amount transferred to bank accounts, Defendants
instructed the third parties to withdraw the money and transfer
cash. This procedure helped prevent any paper trail. As
further evidence of the intent to conceal the wire fraud,
withdrawals from the bank accounts appeared to be structured
so that no withdrawal would amount to $10,000 or more, an
amount which would require the bank to complete a cash
transaction report. None of the Western Union transfers from
the victims identified White as the recipient. Many of the
Western Union transfers identified third parties as the
recipient. As stated earlier, statements made by Prince
suggest an intent to conceal.
Defendant White fails to explain how this case is atypical
of the money laundering cases to which Sentencing Guideline
section 2S1.1 applies. White contends that the court should
have considered the affidavit of Defendant Prince. Prince
executed an affidavit prior to the original indictment. In that
affidavit, he stated that White was not responsible for the
money loss. Contrary to White’s argument, the district court
did consider the affidavit, and the court concluded that the
affidavit was inaccurate, inconsistent with trial testimony, and
“clearly not true.” Accordingly, the court decided not “to
attach much significance” to it.
In addition, White argues that the money wired to third
parties went to Defendant Prince and that White had no direct
contact with most of the victims. White appears to be arguing
that a departure is warranted because insufficient evidence
links him to the money laundering charges. However, we
disposed of this issue above in addressing his sufficiency of
the evidence claim and concluded that the proof at trial
established that White initiated and helped perpetuate this
fraudulent scheme which evolved into wire fraud and money
laundering. At the very least, he aided and abetted the
commission of wire fraud and the laundering of the proceeds
of that wire fraud. White has failed either to identify a factor
that the guidelines did not consider or to show “any unusual
circumstances rendering the guidelines’ consideration
inadequate in [his] case.” See Ford, 184 F.3d at 586-87. He

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46 United States v. Prince, et al. Nos. 98-6361/6362
range. United States v. Haun, 90 F.3d 1096, 1102 (6th Cir.
1996), cert. denied, 519 U.S. 1059, 117 S.Ct. 691, 136
L.Ed.2d 614 (1997). After identifying the offense level, the
district court adjusts the level as the Guidelines direct and
determines the defendant’s criminal history category. Koon,
518 U.S. at 88, 116 S.Ct. at 2042. (citing United States
Sentencing Commission, Guideline Manual § 1B1.1 (Nov.
1992)). The court then coordinates the adjusted offense
level and the criminal history category to arrive at the
appropriate sentencing range. Id. District courts may depart
from the applicable Guideline range if “‘the court finds that
there exists an aggravating or mitigating circumstance of a
kind, or to a degree, not adequately taken into consideration
by the Sentencing Commission in formulating the guidelines
that should result in a sentence different from that
described.’” Koon, 518 U.S. at 92, 116 S.Ct. at 2044 (quoting
18 U.S.C. § 3553(b)). The Introduction to the Guidelines
provides:
The Commission intends the sentencing courts to treat
each guideline as carving out a ‘heartland,’ a set of
typical cases embodying the conduct that each guideline
describes. When a court finds an atypical case, one to
which a particular guideline linguistically applies but
where conduct significantly differs from the norm, the
court may consider whether a departure is warranted.
Koon, 518 U.S. at 93, 116 S.Ct. at 2044 (quoting 1995
U.S.S.G. Ch.1, pt. A, intro. comment. 4(b)).
The trial court did not err in applying the money laundering
guidelines to this case. The counts charging Defendant White
with wire fraud and money laundering involved substantially
the same harm. The court appropriately grouped the two
crimes and concluded that the money laundering guidelines
applied. As the court found, Defendants structured
transactions to avoid a paper trail, concealing their fraudulent
activities. Rather than accepting money directly from the
victims, Defendants directed victims to transfer money to
third parties. Rather than accepting a check from the third
Nos. 98-6361/6362 United States v. Prince, et al. 7
writings, signs, signals, pictures, or sounds for the purpose of
executing such scheme or artifice, shall be fined under this title
or imprisoned not more than five years, or both. If the violation
affects a financial institution, such person shall be fined not
more than $1,000,000 or imprisoned not more than 30 years, or
both.
4The defendant does not have to directly or personally perform the
wire communication; it is sufficient that it is foreseeable that a wire
communication could be used to advance the scheme to defraud. United
States v. Griffith, 17 F.3d 865, 874 (6th Cir. 1994) (citing United States
v. Campbell, 845 F.2d 1374, 1382 (6th Cir.), cert. denied 488 U.S. 908,
109 S.Ct. 259, 102 L.Ed.2d 248 (1988)).
use of interstate wire communications in furtherance of the
scheme;4 and (3) intent to deprive a victim of money or
property. United States v. Merklinger, 16 F.3d 670, 678 (6th
Cir. 1994); United States v. Ames Sintering Co., 927 F.2d
232, 234 (6th Cir. 1990) (citations omitted). Defendants must
have used the proceeds of the acts of wire fraud to commit
money laundering.
We conclude that the money, once wired by the victims,
constituted proceeds of wire fraud. We find instructive the
following cases decided in other circuits. United States v.
Savage, 67 F.3d 1435 (9th Cir. 1995), cert. denied, 516 U.S.
1136, 116 S.Ct. 964, 133 L.Ed.2d 885 (1996), supports the
proposition that Prince did not need to have physical
possession of the money before it could be considered
proceeds. In Savage, the defendant was convicted of various
offenses including wire fraud and money laundering. Id. at
1437. The defendant defrauded individuals by promising that
if they sent him $5,000, he would obtain foreign loans and
earn each investor a return of $10 million. Id. The defendant
recruited assistants to help him raise money, transfer it, and
launder it. Id. at 1438. The assistant would direct investors
to send money to the assistant’s bank account. Id. In some of
these transactions, the assistant transferred that money to a
foreign bank account; at that point, the money either was sent
back to the defendant’s personal accounts in the United States
or was used directly to pay the defendant’s expenses. Id.

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8 United States v. Prince, et al. Nos. 98-6361/6362
518 U.S.C. section 1957 prohibits anyone from “knowingly
engag[ing] or attempt[ing] to engage in a monetary transaction in
criminally derived property that is of a value greater than $10,000 and is
derived from specified unlawful activity.” This statute does not require
that the defendant knew that the offense from which the criminally
derived property was derived was specified unlawful activity. 18 U.S.C.
§ 1957(c). Section 1957(f)(2) defines criminally derived property as “any
property constituting, or derived from, proceeds obtained from a criminal
offense.”
Stating that the legislative history applicable to section 1956 also
applies to section 1957, the Ninth Circuit in Savage concluded that
“criminally derived property” under section 1957 is equivalent to
“proceeds” under section 1956. Savage, 67 F.3d at 1442.
On appeal, the defendant in Savage contended that the
international monetary transfers did not involve proceeds of
unlawful activity as defined in section 1956. Id. at 1441-42.
However, the Ninth Circuit concluded that the international
monetary transfers did involve the proceeds of the previous
acts of wire fraud. Id. at 1442. In appealing his convictions
on 18 U.S.C. section 1957 offenses,5 the defendant argued
that he did not have possession of the money when the wire
transfers were sent because the money was not transferred out
of his personal account. Id. The court held that the funds
transferred were criminally derived property at the time they
were deposited in accounts under the defendant’s control. Id.
at 1443. The court found that the funds were at the
defendant’s disposal because the record indicated that the
parties named on the accounts transferred the money at the
defendant’s request. Id. The court stated that it was
irrelevant that the accounts were not in the defendant’s name.
Id.
A case in the Fourth Circuit also supports the proposition
that funds may constitute proceeds even though the defendant
is not at that point in physical possession of those funds. In
United States v. Smith, 44 F.3d 1259, 1263 (4th Cir. 1995),
the defendants Smith, Grimm, and Palmer were convicted of
wire fraud in violation of 18 U.S.C. section 1343 and money
laundering in violation of 18 U.S.C. section 1957. Smith and
Grimm carried out a scheme in which they fraudulently
Nos. 98-6361/6362 United States v. Prince, et al. 45
original plan and used for the defendants’ own personal
benefit. At least for their own uses.
Also, we have a case here where the defendants were
going to great lengths to avoid a paper trail. I don’t buy
the argument that bank accounts weren’t possible in this
case because somebody was in bankruptcy. You can
have a – you can have a checking account while you’re
in bankruptcy. People do it all the time. It’s clear in this
case that other people’s bank accounts were being used,
wires were being used in an effort to avoid a record or a
trail of this money. So it seems to me that the
circumstances of this case are far closer to Ghosheh than
they are to Caba.
Even though it’s a difficult question, it’s my
conclusion that the money laundering statute is the
appropriate guideline to use as the starting point for the
calculations in this case.
(JA at 1059-62).
While the district judge did not refer to his authority under
the guidelines to exercise discretion in deciding whether to
depart, we do not require him to state that he has this
discretion. We conclude that the district judge did exercise
his discretion in refusing to downward depart. Even if the
district judge presumed himself bound by precedent and
precluded from granting the requested departure, the result
was correct because the facts of this case are not outside the
heartland of the guidelines’ considerations.
A district court, applying the Sentencing Guidelines,
identifies the base level offense assigned to the crime. Koon
v. United States, 518 U.S. 81, 88, 116 S.Ct. 2035, 2042, 135
L.Ed.2d 392 (1996) (citing United States Sentencing
Commission, Guideline Manual § 1B1.1 (Nov. 1992)). The
court must group together into a single group all counts
involving substantially the same harm. United States
Sentencing Commission, Guidelines Manual § 3D1.2 (Nov.
1998). Under the grouping rules, the offense guideline that
gives rise to the highest offense level dictates the sentencing

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44 United States v. Prince, et al. Nos. 98-6361/6362
I have to decide whether or not money laundering is the
appropriate guideline to use as a starting point. And I
have read – while Ms. Ferguson was discussing it, I have
read the opinion in the Ghosheh – that’s G-H-O-S-H-E-H
– from the Sixth Circuit, and the Court of Appeals for
our circuit used the following language in the Ghosheh
case. The Court of Appeals said that ‘The defendant in
Caba, unlike the defendant in the instant case’ – that is,
the Ghosheh case – ‘was redeeming food stamps that
actually had been used to purchase food. Thus, in Caba,
the court properly could conclude that the purpose for
which the stamps had been intended – to purchase
foodstuffs – was not defeated by the defendant’s actions.
‘Here, on the other hand, the food stamps redeemed by
the defendant were never used for their actual purpose.
This led to a complete diversion of government funds,
which passed directly to the defendant, without ever
having been used by those for whose benefit the food
stamps had been issued. The defendant, moreover, does
not refute the government’s contention that he went to
great lengths to conceal his deposits and withdrawals,
used multiple bank accounts in the name of nominees,
and usually closed bank accounts after a short period of
time. Thus, defendant’s actions are much closer to the
heartland of the money laundering statute because those
actions manifest a desire on his part to conceal the
source, flow and destination of unlawfully obtained
funds.
‘Because the defendant’s conduct here is readily
distinguishable from that of the defendant in Caba, that
case does not support, much less require, reversal of the
district court’s sentence in this case.’
It seems to me that the Ghosheh opinion lends support
for the proposition that the defendant in this case was, in
fact, closer to money laundering than the defendant was
in Caba. In this case, the money was diverted from the
purpose for which it was sent. The victims sent the
money thinking that they were engaging in a financial
investment plan through the bankruptcy court. That was
never the case. The money was diverted from that
Nos. 98-6361/6362 United States v. Prince, et al. 9
induced lenders to advance money to Lagusa, Inc., for the
stated purpose of financing a corporation controlled by
Smith. Id. at 1262-63. Lagusa’s president, Palmer, in
exchange for kickbacks, transferred the loans to an account
controlled by Smith, who later withdrew the money. Id. at
1263.
On appeal, Smith argued that the money transfers from
Lagusa to the bank account controlled by him could not
constitute both wire fraud and transactions in criminally
derived property. Id. The Fourth Circuit concluded that when
Smith and Grimm fraudulently induced the lenders to wire
loan proceeds to Lagusa, the wire fraud offenses were
completed. Id. at 1265. Thus, at that point, the money in the
hands of Lagusa constituted proceeds from unlawful activity,
despite the fact that the wire fraud scheme included further
transactions. Id.
Smith also argued that when Lagusa received the proceeds
of the fraudulently obtained loans, Smith neither possessed
nor controlled these loans and thus he could not be charged
with money laundering. Id. In rejecting this argument, the
Fourth Circuit held that the transfer from the lenders to
Lagusa was effected pursuant to a scheme to defraud, which
Smith participated in and devised. Id. at 1266. Smith was in
constructive control of the entire scheme and was therefore in
constructive possession and control of the fraudulently
procured funds at the time those funds were transferred in
violation of the money laundering statute. Id. Further, the
appellate court held that as Smith was charged with aiding
and abetting, he would not be required to be in possession of
the money as it was being laundered. Id.
A Fifth Circuit case, United States v. Leahy, 82 F.3d 624
(5th Cir. 1996), is instructive on the proposition that a
defendant needs only sufficient control, not actual, physical
possession, of the funds. In Leahy, the defendants Leahy,
Nece, and Flanagan were convicted of offenses including wire
fraud in violation of 18 U.S.C. section 1343 and money
laundering in violation of 18 U.S.C. section 1957. Id. at 629.

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10 United States v. Prince, et al. Nos. 98-6361/6362
Nece owned and operated Great Western Roofing (“GWR”),
which successfully bid on a project for a Veterans
Administration (“the VA”) building. Id. at 628. Because of
GWR’s poor record of paying two of its main suppliers, those
suppliers insisted that GWR establish an escrow account. Id.
The escrow agreement required the escrow agent to transfer
the money paid by the VA, to GWR and the two suppliers,
according to set percentages. Id. Approximately six weeks
after receiving instructions to begin the project, GWR
presented fraudulent invoices to the VA and requested
approximately half of the contract price. Id. Unaware of the
fraud, the VA wired the requested money to the escrow
account. Id. As per the escrow agreement, the escrow agent
transferred the money to GWR and the two suppliers. Id. On
appeal of his conviction, Leahy argued that GWR did not
possess the funds wired from the VA until they were
deposited in GWR’s account. Id. at 635. Thus, according to
Leahy, the wire fraud was not complete until that point, and
therefore, the transfer of funds from the escrow account to
GWR’s account did not involve criminally derived proceeds.
Id. Noting that the escrow agent had no discretion as to how
to distribute the funds, the court found that GWR had
sufficient control over the escrow account and thus wire fraud
was complete when the money was deposited in the escrow
account. Id. at 635-36. The subsequent transfers involved
illegally obtained proceeds. Id. at 636. In so finding, the
court noted that the Ninth Circuit in Savage upheld a section
1957 conviction even though funds had not been transferred
to the defendant’s account because the “‘funds were clearly at
Savage’s disposal at the time of the deposit–the record
indicates that the parties named on the accounts transferred
the money at his request.’” Id. at 636 (quoting Savage, 67
F.3d at 1443).
In the present case, Defendants had sufficient control over
the funds wired to Prince as well as the funds wired to third
parties. In the instances in which victims transferred money
to Prince directly, once the victims wired the money, it
constituted proceeds. The same is true when victims
transferred money to a third party because Prince had
Nos. 98-6361/6362 United States v. Prince, et al. 43
downward is considered an issue of Guidelines interpretation
that we review de novo. Ebolum, 72 F.3d at 37 (citations
omitted). We examine the sentencing hearing transcript to
determine whether the district court’s refusal to depart
downward was an exercise of discretion or a legal
determination that it lacked the authority to depart. Ebolum,
72 F.3d at 37. The district court judge has no duty to state
affirmatively that he knows he possesses the power to depart
downward but declines to do so. United States v. Byrd, 53
F.3d 144, 145 (6th Cir. 1995). When reviewing a ruling
which fails to affirmatively state that the judge knew he could
depart downward, “it should be assumed ‘that the court, in the
exercise of its discretion, found downward departure
unwarranted.’” Id. (quoting United States v. Barrera-Barron,
996 F.2d 244, 245 (10th Cir.), cert. denied, 510 U.S. 937, 114
S.Ct. 358, 126 L.Ed.2d 321 (1993)).
At the sentencing hearing both Prince and White articulated
objections to the use of the money laundering guidelines. The
court entertained arguments from both defendants on the issue
of whether the wire fraud or money laundering guidelines
should apply. In ruling on the issue, the court explained its
role in sentencing:
* * *
the guidelines say that in a case such as this, under
normal circumstances you use the guideline for the most
serious offense. In this case, that would be money
laundering.
But that’s not always the case because it could be that
there are cases in which a defendant is technically
convicted of money laundering, but the real substance of
his crime was wire fraud. In that case – Such as the
Caba case that was cited by Mr. Ferguson. In that case,
even though there was a technical violation of the money
laundering statute, the guideline for wire fraud more
closely approximated the defendant’s conduct.
But our circuit had an opportunity to address the Caba
case. And it’s true that the defendant was guilty of both.

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42 United States v. Prince, et al. Nos. 98-6361/6362
that, at the very least, White aided in the commission of wire
fraud and the money laundering that occurred with the
proceeds of the wire fraud. White has failed to sustain his
“very heavy burden” that no rational trier of fact could have
convicted him.
F. Sentencing
The district court sentenced Defendant White under the
money laundering guidelines, United States Sentencing
Guideline 2S1.1 (a)(2). The base offense level under these
guidelines is 20, and the court, finding the value of the funds
involved as more than $1,000,000, added five levels pursuant
to U.S.S.G. 2S1.1(b)(2)(F). The court used a level of twenty-
five and a criminal history category of II. Imposing a
sentence at the maximum end of the guidelines, the court
sentenced White to 60 months for the wire fraud counts and
78 months for the money laundering counts to be served
concurrently. White filed an objection to the pre-sentence
report contesting the use of the money laundering guidelines,
as opposed to the wire fraud guidelines, and contesting the
calculation of loss. White articulated these objections at the
sentencing hearing as well. On appeal, White raises both
these issues.
1. Sentencing under the money laundering guidelines
Ordinarily, a defendant may not appeal a district court’s
discretionary decision not to depart downward from the range
provided in the Sentencing Guidelines. United States v.
Ebolum, 72 F.3d 35, 37 (6th Cir. 1995) (citations omitted).
However, a defendant may appeal when the district court
believed that it lacked authority to depart downward as a
matter of law. Id. (citing United States v. Landers, 39 F.3d
643, 649 (6th Cir. 1994); United States v. Dellinger, 986 F.2d
1042, 1044 (6th Cir. 1993)). If the court’s refusal to depart
stemmed from its legal conclusion that the circumstance
argued by the defendant was not a valid reason for departure,
the decision is reviewable. United States v. Ford, 184 F.3d
566, 585 (6th Cir. 1999) (citations omitted). The district
court’s determination that it lacked authority to depart
Nos. 98-6361/6362 United States v. Prince, et al. 11
sufficient control over that money. In every case in which
money was transferred to a third party, the third party was
someone with whom Prince had a relationship. Prince
solicited the help of his sister, his brother, a niece, two sister-
in-laws, his accountant, two of his employees, and an
individual who Prince had known his whole life. Prince had
reached a prior agreement with each of them in which the
third party had agreed to transfer the money to Prince. On all
occasions, the third party complied. On all occasions,
whether the victim transferred the money to a third party or
Prince, Prince transferred the money to White. The
Defendants devised, participated in, and were in constructive
control of this elaborate scheme.
Even if, arguendo, the money did not constitute proceeds
until the money was in Prince’s hands, Prince fails to satisfy
his burden on his claim of insufficient evidence. As is
addressed below, Defendants conducted transactions after
Prince had physical possession of the proceeds. Evidence
established that Prince transferred each payment or
contribution to White. Sufficient evidence supports the first
element of money laundering.
2. Knowledge that the funds are proceeds of unlawful
activity
Prince does not argue that this element was not supported
by sufficient evidence.
3. Conduct or attempt to conduct a financial transaction
knowing that the transaction is designed in whole or in
part to disguise the nature, location, source,
ownership, or control of the proceeds
On appeal, Defendant Prince argues that the government
failed to present any proof of a subsequent financial
transaction designed to conceal the nature of the funds. The
term “financial transaction” means
(A) a transaction which in any way or degree affects
interstate or foreign commerce (i) involving the

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12 United States v. Prince, et al. Nos. 98-6361/6362
movement of funds by wire or other means or (ii)
involving one or more monetary instruments, or (iii)
involving the transfer of title to any real property,
vehicle, vessel, or aircraft, or (B) a transaction involving
the use of a financial institution which is engaged in, or
the activities of which affect, interstate or foreign
commerce in any way or degree;
18 U.S.C. § 1956 (c)(4).
The term “transaction”
includes a purchase, sale, loan, pledge, gift, transfer,
delivery, or other disposition, and with respect to a
financial institution includes a deposit, withdrawal,
transfer between accounts, exchange of currency, loan,
extension of credit, purchase or sale of any stock, bond,
certificate of deposit, or other monetary instrument, use
of a safe deposit box, or any other payment, transfer, or
delivery by, through, or to a financial institution, by
whatever means effected;
18 U.S.C. § 1956 (c)(3).
The term “monetary instruments” means
(i) coin or currency of the United States or of any other
country, travelers’ checks, personal checks, bank checks,
and money orders, or (ii) investment securities or
negotiable instruments, in bearer form or otherwise in
such form that title thereto passes upon delivery;
18 U.S.C. § 1956 (c)(5).
In the present case, Defendant Prince, in violation of the
wire fraud statute, induced victims to wire money. The
subsequent transactions involving the proceeds of wire fraud
constitute financial transactions as defined in section 1956.
In the first of the three types of arrangements, Prince directed
the victims to wire money to the bank accounts of third
parties. He typically directed the third party to either
Nos. 98-6361/6362 United States v. Prince, et al. 41
property through the bankruptcy courts. Prince testified that
White instructed him on the amounts of money to request
from the victims. Prince transferred all of the money he
fraudulently received to White. Defendant Prince sent to
White, via Western Union, the following: (1) $1,250 on
April 22, 1993; (2) $1,000 on May 25, 1993; (3) $2,455 on
May 29, 1993; (4) $2,000 on July 9, 1993; (5) $1,000 on
December 17, 1993; (6) $350 on October 30, 1994; (7) $395
on December 2, 1994.
George Stevenson, a Chapter 7 and 13 Bankruptcy trustee
in the Western District of Tennessee, testified that he did not
know either defendant and that the bankruptcy court offered
no plan whereby an individual could purchase property from
the bankruptcy court at a cheap rate. O n t h e i s s u e o f
sufficiency of evidence, White argues that (1) only Max
Osborne, Debra Gates, and Robert Howard gave White
money directly; (2) money wired into the accounts of third
parties was always given to Prince; (3) there is no indication
that White received the money involved in the money
laundering counts; (4) Mrs. Bell gave to Prince the cashier’s
check offered to Mr. Stephens during White’s state criminal
proceeding; and (5) there was no substantial evidence that
White committed wire fraud in his dealings with Mr. Crawley
and Mr. Stephens.
Sufficient circumstantial and direct evidence has
established that White initiated and, at the very least, helped
perpetuate this fraudulent investment scheme which evolved
into wire fraud and into the laundering of the proceeds of that
fraud. While some of the victims directly tied to White might
not have been victims of the wire fraud or the money
laundering, the evidence of the fraud perpetrated against them
by White connects him to the overall scheme and provides
circumstantial evidence of his involvement in the wire fraud
and money laundering offenses. The testimonies of
Defendant Prince, his wife, and some of the victims of the
wire fraud establish that White remained an active participant
when the scheme evolved into acts of wire fraud and money
laundering. Substantial and competent evidence established

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40 United States v. Prince, et al. Nos. 98-6361/6362
When Prince stated that there was no way that he could reach
White, Mr. Dieruf, Jr. stated that he would not contribute any
more money. Ten minutes later, White phoned Mr. Dieruf, Jr.
and assured him that there would be no future requests for
money and that, if Mr. Dieruf, Jr. would send the requested
money, White would personally guarantee that in twenty days
the investors would receive half of their money back. During
Mr. Dieruf, Jr.’s involvement in the scheme, he wire
transferred money to the bank accounts of third parties
including Dorothy Hamby, Roxanna Hawes, Chris Mathis,
Gene Gordon Auto Sales, Kelly Barber, and Gene Gordon.
Mr. Dieruf, Jr. also transferred money via Western Union to
Prince.
Defendant Prince contacted William Dieruf, III about
investing in the plan. Prince explained to Mr. Dieruf, III that,
through Defendant White, Prince had a special arrangement
with the bankruptcy court whereby he could pay cash to buy
bankrupt companies. Per Prince’s instructions, Mr. Dieruf, III
wire transferred money to the bank accounts of Chris Mathis
and Dorothy Hamby.
According to Joan Howard, Defendant Prince informed her
that the money that she and her husband transferred to Mrs.
Bell’s bank account or sent via Western Union was going to
be received by Prince who was to give it to White. Ms.
Howard and her husband also transferred money to the bank
accounts of third parties including Wayne Prince, Ruby Prince
and Kelly Barber.
Virginia Prince, Defendant Prince’s wife, testified that
when her husband received money he would give that money
either to White or to an individual who was instructed to give
the money to White. She witnessed her husband deliver some
of the money to White. Her husband informed her that the
money was “going to Tony White.” White discussed the
“plan” with Virginia Prince as well as others. Virginia Prince
was present when White talked to Mrs. Bell about the plan.
Defendant Prince testified that Max Osborne and White
asked Prince if he wanted to get involved in their plan to buy
Nos. 98-6361/6362 United States v. Prince, et al. 13
6A disposition means “‘a placing elsewhere, a giving over to the care
or possession of another.’” United States v. Garcia Abrego, 141 F.3d 142,
161 (5th Cir. 1998) (citations omitted).
7In United States v. Cavalier, 17 F.3d 90, 91 (5th Cir. 1994), the
defendant had possession of a van that was insured by Allstate Insurance
Corporation (“Allstate”) and financed by General Motors Acceptance
Corporation (“GMAC”). The defendant shipped the vehicle to Honduras
where it was sold, and then he reported to Allstate that it had been stolen.
Id. Based on the mailed, false theft report, Allstate paid GMAC to satisfy
the lien on the van. Id. The indictment charged the defendant, among
other offenses, with causing the conducting of a financial transaction
involving the proceeds of mail fraud, in violation of 18 U.S.C. sections
1956(a)(1)(A)(i); 2. Id. On appeal of his guilty plea, the defendant
argued that he did not cause a financial transaction between Allstate and
GMAC to be conducted because he had no dominion or control over
Allstate. Id. at 92. The Fifth Circuit found that the mailing of the false
theft claim to Allstate caused Allstate to send a check to GMAC, thereby
extinguishing GMAC’s lien. Id. The court “therefore reject[ed] the
argument that [the defendant] did not cause to be conducted a financial
transaction between Allstate and GMAC.” Id.
withdraw money from the bank account or write a check on
that account and cash that check. Then, the third party would
transfer the cash to Prince. The act of withdrawing the money
from the bank account constitutes a transaction, specifically
a withdrawal, involving the use of a financial institution. The
act of transferring cash from the third party to Prince is a
transaction as defined in section (c)(3) in that it is a transfer
or disposition6 of a monetary instrument, i.e., cash. Likewise,
on those few occasions when the third party wrote Prince a
check, that constituted a transfer or disposition of a monetary
instrument, i.e., a personal check. Prince caused two
transactions to be conducted -- one between the third party
and the bank and one between the third party and Prince . See
United States v. Cavalier, 17 F.3d 90 (5th Cir. 1994).7 Upon
completion of the transactions or dispositions, Prince then
transferred the funds to White. This constitutes yet another
disposition of the proceeds of wire fraud.
Under the second type of arrangement, Defendant Prince
instructed victims to wire money to third parties via Western

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14 United States v. Prince, et al. Nos. 98-6361/6362
Union. Prince effected a disposition or transfer by directing
the third party, who had been instructed to retrieve the money
from Western Union, to transfer the cash to him. Through
such conduct, Prince has effected a disposition of the
proceeds of the wire fraud. See United States v. Reed, 77 F.3d
139, 143 (6th Cir. 1996) (en banc) (overruling United States
v. Oleson, 44 F.3d 381 (6th Cir. 1995) and United States v.
Samour, 9 F.3d 531 (6th Cir. 1993) to the extent that those
cases held that the conduct of delivering drug proceeds or
money intended to purchase drugs to a courier did not
constitute a financial transaction under section 1956). In
United States v. Baez, 87 F.3d 805, 810 (6th Cir. 1996), we
held that the following facts as provided in the plea agreement
constituted a “financial transaction” in violation of 18 U.S.C.
section 1956(a): “Baez violated the money laundering statute
when he sent another individual from New Jersey to Ohio for
the purpose of picking up approximately $349,417.00 in drug
trafficking proceeds and delivering the money to a place
outside the state of Ohio.”
Upon completion of the transaction or disposition from the
third party to Prince, Prince then transferred the funds to
White. This constitutes a second disposition of the proceeds
of wire fraud.
Under the third type of arrangement, Defendant Prince
instructed victims to transfer money to him via Western
Union. Prince testified that all of the money that victims
transferred to him he transferred to Defendant White. This
delivery of the wire fraud proceeds to White constitutes a
financial transaction.
Defendant Prince contends that no evidence supports the
allegation that he conducted the transactions in an attempt to
conceal the funds. The evidence presented suggests that
Prince, at the very least, aided in a scheme in which there was
an attempt to conceal the true owner and controller of funds.
See United States v. Elder, 90 F.3d 1110, 1125 (6th Cir.),
cert. denied, 519 U.S. 1016, 117 S.Ct. 529, 136 L.Ed.2d 415
(1996).
Nos. 98-6361/6362 United States v. Prince, et al. 39
balked, but White convinced him to contribute money by
offering to write Mr. Stephens a check to assure him that
White was not “going to beat” Mr. Stephens. Each time he
gave White money, White would write Mr. Stephens a check.
At one point, Mr. Stephens attempted to cash the checks, and
the bank refused to honor them. Mr. Stephens approached the
district attorney, and eventually, state criminal charges were
brought against White. At some point during those criminal
proceedings, Defendant Prince approached Mr. Stephens and
offered him a check for the money owed him. Mr. Stephens
tried unsuccessfully to cash the check.
Mrs. Bell, Defendant Prince’s sister, testified that both
Defendants approached her about investing money in their
plan. Mrs. Bell admitted that she and her husband had given
a lot of money to Prince and White. When other victims of
the scheme would transfer money to her bank account, Mrs.
Bell would write a check on that account in order to withdraw
money and give cash to Prince. Mrs. Bell would receive
Western Union wire transfers and transfer the cash to Prince.
On one occasion, Mrs. Bell picked up money wire transferred
into Roxanna Hawes’ account and delivered it to Prince. Mrs.
Bell recalled an occasion in which she accompanied Prince to
Kentucky to retrieve money from Robert Howard, a victim in
this scheme. Mrs. Bell witnessed Prince transfer that money
to White. In response to Mrs. Bell’s, request, her daughter,
Debra Gates, gave $6,500 in cash directly to White.
Mr. William Dieruf, Jr., was introduced to Defendant
Prince who convinced Mr. Dieruf, Jr. to invest in a plan to
purchase assets of bankruptcy estates with a substantial
projected profit. At one point, Mr. Dieruf, Jr. refused to give
Prince $17,900 that Mr. Dieruf, Jr. had collected for the
investment plan. In response, Prince arranged for Defendant
White to call Mr. Dieruf, Jr. During the course of the
approximately twenty minute conversation, White stated that
he was in charge and that Mr. Dieruf, Jr. could have
confidence that the investment plan would proceed as
discussed. The next day, Mr. Dieruf, Jr. informed Prince that
he would not send the money until he talked to White again.

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38 United States v. Prince, et al. Nos. 98-6361/6362
the bankruptcy court, he could purchase this property. Max
Osborne, Ruth Osborne’s husband, also testified that White
claimed he was “bonded to buy property through the
bankruptcy court.” White drove Mr. Osborne to pieces of
property that White claimed were assets in a bankruptcy and
would be sold at a reasonable price. White suggested that a
profit could be made by purchasing, “fixing up”, and then
renting the properties. White quoted prices for purchasing the
properties. Based on the representations White made about
his relationship with the bankruptcy court, Mr. Osborne gave
White money for over two years. Mr. Osborne gave checks
and sometimes cash directly to White. Mr. Osborne believed
he was buying property. White was in Defendant Prince’s
store at the time that Prince met with Mr. and Mrs. Osborne
there to re-assure them that the plan was legitimate. When
Mr. and Mrs. Osborne requested that White return their
money, White reassured them that they would get back their
approximately $228,000 investment. They never received any
money.
White approached Clarence Crawley with an alleged plan
to purchase property in bankruptcy and then sell it, doubling
Mr. Crawley’s investment. White signed a promissory note
stating that Mr. Crawley had given White $7,300 and that he
would pay Mr. Crawley $16,000. Per White’s instructions,
Mr. Crawley gave White $5,300 in cash and a cashier’s check
for $2,000 payable to “Chapter 13 BC court.” At some point,
White gave Mr. Crawley a check for him to hold and to cash
in the event that he grew concerned that White would not
return the money. Some months later, Mr. Crawley took the
check to the bank and discovered that no bank account
corresponded to the number on the check. When Mr. Crawley
approached White about getting the money back, White
drafted a signed and notarized agreement which detailed a
repayment plan.
White introduced Silas Stephens to the scheme. Claiming
to have a special relationship with the bankruptcy court,
White claimed that he could purchase, for a cheap price, cars
impounded by the bankruptcy court. At first, Mr. Stephens
Nos. 98-6361/6362 United States v. Prince, et al. 15
8The following is an excerpt from the government’s direct
examination of Mrs. Bell:
Q And then why wouldn’t you write a check out of your account to give
it to your brother instead of giving him cash?
A Why would I – Well, see, I did give him cash.
Q I know. Why did you give him the cash?
A Well, that’s the way they wanted it. They wanted it in cash.
Q Did they ever give you a receipt, Ms. Bell?
A I did not get any sort of receipt for it.
(Joint Appendix at 464).
On some occasions, Prince directed victims to contribute
money to the scheme through a third party. This arrangement
involved explaining the use of a third party to the potential
investor, soliciting the assistance of a trusted third party,
requiring the third party to go to their bank or to a Western
Union office to obtain the money, effecting the transfer to
Prince, and then arranging the transfer from Prince to White.
This elaborate arrangement protected Defendants from a
potential paper trail. Prince usually instructed the third
parties to whom money had been transferred, to give him
cash. Mrs. Bell, Prince’s sister, testified that Prince requested
that he receive the money in cash.8 At times, these
instructions required the third parties to go to their bank and
withdraw the money rather than simply writing a check
payable to Prince, White, or the bankruptcy court for which
the money was allegedly collected. Again, this prevented a
paper trail.
The government presented testimony which suggested that
Prince structured transactions so that a third party would
never withdraw more than $10,000 from their bank account
in one transaction. Chris Mathis, one of these third parties as
well as Prince’s accountant, testified that a transaction in
excess of $10,000 would require the bank to send a cash

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16 United States v. Prince, et al. Nos. 98-6361/6362
9The following is an excerpt from the government’s direct
examination of Mr. William C. Dieruf, Jr., who was a victim in this case:
Q Did [Defendant Prince] ever make a statement to you, sir, to the
effect that you couldn’t prove that you sent money to him?
A Several times he said there’s nobody can prove that he had ever
received any money, period.
(Joint Appendix at 599).
Prince arranged for money to be wire transferred to Chris Mathis’
account, and Mr. Mathis withdrew the cash and gave it to Prince. The
following is an excerpt from the government’s direct examination of Mr.
Mathis:
Q Did you talk to him about talking to the investigators? Did you tell
him you talked to the investigators in this case?
transaction report to the Internal Revenue Service. Mrs. Bell,
one of the third parties and Prince’s sister, testified that on
one occasion where she gave Prince $19,000, she wrote two
separate checks, each for $9,500, so that the transaction
would not be reported. On one occasion, $10,700 was wire
transferred to Chris Mathis’ account, but to withdraw the
money, Mr. Mathis wrote two checks, one for $700 and one
for $10,000.
The few Western Union transfers sent by victims which
identified Prince as the recipient still helped conceal, as they
did not identify White who, as Prince testified, was the final
recipient of the proceeds of all of the transfers. By directing
the transfers to himself, Prince aided White by concealing the
fact that White was the true controller of the proceeds of this
scheme. During the sentencing hearing, the district court
found that it was “clear in this case that other people’s bank
accounts were being used, wires were being used in an effort
to avoid a record or a trail of this money.”
The government elicited testimony that Prince, on at least
two occasions, stated that due to the structure of the
transactions it could not be proven that he received money.9
Nos. 98-6361/6362 United States v. Prince, et al. 37
In his motion, White argued that (1) he did not have adequate
time to consult with his attorney; (2) the government had not
produced adequate discovery, i.e., the endorsement on the
cashier’s check attached as an exhibit to the above-referenced
Rule 404(b) motion and certain information concerning a civil
lawsuit filed by Clarence Crawley; and (3) he would not have
time to produce this evidence. More specifically, White
complained that he did not have adequate time to produce
records illustrating that the check made payable to “Chapter
13 BC Court” for $2,000 did go to the court for the
reinstatement of his bankruptcy.
Not only did the superseding indictment only add an
additional overt act to the overall scheme to defraud, as
opposed to adding a new charge, but the superseding
indictment only added the act of defrauding Mr. Crawley, an
act which was revealed in the government’s motion filed
April 3, 1998. That motion alerted Defendant to the
allegations surrounding Mr. Crawley and to the fact that the
government intended to introduce at trial those four
documents which supported a claim of fraud perpetrated
against Mr. Crawley. White had adequate time to consult
with his attorney and to prepare his defense.
White has failed to establish that the district court’s denial
of White’s motion for continuance was so arbitrary as to
violate due process.
E. Sufficiency of the Evidence
Defendant White contends that the evidence was
insufficient to convict him of wire fraud, money laundering,
and aiding and abetting. We review a sufficiency of the
evidence claim as articulated above in Section A.
Evidence established that White, at the very least, aided in
the overall scheme to defraud from which arose the acts
constituting wire fraud and money laundering. Ruth Osborne
testified that she and her husband gave White money so that
he could purchase property from the bankruptcy court. White
assured Mrs. Osborne that, because he was bonded through

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36 United States v. Prince, et al. Nos. 98-6361/6362
v. Gallo, 763 F.2d 1504, 1523 (6th Cir. 1985) (quoting United
States v. Mitchell, 744 F.2d 701, 704 (9th Cir. 1984)), cert.
denied, 474 U.S. 1068, 106 S.Ct. 826, 88 L.Ed.2d 798 (1986).
“‘Broad discretion must be granted trial courts on matters of
continuances; only an unreasoning and arbitrary ‘insistence
upon expeditiousness in the face of a justifiable request for
delay’ violates the right to the assistance of counsel.’” Frost,
914 F.2d at 765 (citations omitted). We do not apply any
mechanical tests for determining when a denial of a request
for continuance is so arbitrary as to violate due process.
Frost, 914 F.2d at 765 (citations omitted). Rather, we
consider the circumstances present in the case, particularly the
reasons presented to the trial court at the time of the request.
Id. “‘[W]e look for a showing from the defendant of
prejudice, i.e., a showing that the continuance would have
made relevant witnesses available, or would have added
something to the defense.’” Frost, 914 F.2d at 765 (citations
omitted).
18 U.S.C. section 3161 (c)(2) provides as follows: “[u]nless
the defendant consents in writing to the contrary, the trial
shall not commence less than thirty days from the date on
which the defendant first appears through counsel or
expressly waives counsel and elects to proceed pro se.” The
Supreme Court has held that this 30-day trial preparation
period does not commence from the date of filing of a
superseding indictment as “[t]he statute clearly fixes the
beginning point for the trial preparation period as the first
appearance through counsel.” United States v. Rojas-
Contreras, 474 U.S. 231, 234, 106 S.Ct. 555, 557, 88 L.Ed.2d
537 (1985). Thus, a defendant is not automatically entitled to
a thirty-day continuance upon the filing of a superseding
indictment. The district court has the authority, under 18
U.S.C. section 3161(h)(8), to grant a continuance if the “‘ends
of justice served by taking such action outweigh the best
interest of the public and the defendant in a speedy trial.’” Id.
at 236, 106 S.Ct. at 558.
Defendant White has failed to establish that the trial court
abused its discretion in denying his motion for continuance.
Nos. 98-6361/6362 United States v. Prince, et al. 17
A Yes, sir.
Q What was his reaction to that?
A I can’t remember any specific reaction other than he didn’t like the
folks that were doing the investigating, maybe. Although, I believe
at the time they hadn’t talked to him.
Q Didn’t he tell you that he didn’t want you telling them that he got the
money?
A He might have said that; yes.
Q Also told you that they were trying to stir up trouble, didn’t he?
A Yes, sir.
Q Now, did he also make the statement that no one could prove that he
had got the money?
A Yes. But all along I told him I was going to tell exactly what
happened to the money.
Q But he told you that no one could prove he got the money.
A Yes, sir.
(Joint Appendix at 715-16).
One witness, who on two occasions had received money in
her account and transferred it to Prince, testified that Prince
called her and told her the IRS was auditing the bank and
instructed her not to mention his name. The structuring of the
transactions combined with Prince’s statements adequately
support the theory that Prince, at the very least, aided in a
scheme involving transactions conducted in an attempt to
conceal the proceeds of wire fraud.
On the issue of sufficiency of the evidence on the money
laundering counts, we hold that Prince has failed to satisfy his
very heavy burden.

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18 United States v. Prince, et al. Nos. 98-6361/6362
B. Constructive Amendment of the Indictment
Defendant Prince contends that the district court’s
instructions on money laundering combined with the evidence
at trial constituted a constructive amendment to the
indictment. Count seventeen of the indictment provides as
follows:
On or about March 10, 1995, in the Western District of
Tennessee, the defendants, being aided and abetted,
counseled and induced by the other, did knowingly and
wilfully conduct and attempt to conduct a financial
transaction which involved the proceeds of a specified
unlawful activity, to wit, wire fraud, in violation of Title
18, United States Code, Section 1343, said activity being
punishable under the laws of the United States, knowing
that the transaction was designed to conceal and disguise
the nature, the location, the source, the ownership, and
the control of the specified unlawful activity, and that
while conducting and attempting to conduct such
financial transactions knew the property involved in the
financial transaction, to wit, a $13,750.00 cash transfer,
represented the proceeds of some form of unlawful
activity, all in violation of Title 18, United States Code,
Section 1956(a)(1)(B)(i) and Section 2.
(Joint Appendix at 64). Counts eighteen through eighty-five
reallege the allegations presented in Count seventeen except
for the dates and amounts, which the indictment then
enumerates. The district court charged the jury, in pertinent
part, as follows:
The crimes alleged in counts 17 through 32 and 34
through 85 are commonly called money laundering.
Each of those counts charge defendants with a separate
violation of Title 18, United States Code, Section
1956(a)(1)(B)(i). Each of those counts allege – each of
those counts alleges a specific violation on the date
alleged and in the amount alleged. You must consider
each count separately and return a separate verdict on
each count.
Nos. 98-6361/6362 United States v. Prince, et al. 35
following four documents: (1) copy of a promissory note
written to Clarence Crawley signed by White; (2) copy of a
money order receipt purchased by Clarence Crawley and
payable to “Chapter 13 BC Court”; (3) copy of a check for
$7,300 payable to Clarence Crawley signed by White; and (4)
copy of a notarized agreement between Clarence Crawley and
White, dated April 2, 1993, directing White to pay Mr.
Crawley $13,500. The court considered the “motion” to be
the notice that is mandated by Rule 404(b), and, to the extent
that the motion requested a pre-trial determination that the
evidence would be admissible under Rule 404(b), the court
denied the motion. On May 18, 1998, the grand jury returned
a superseding indictment which added paragraph three to
Count 1. Paragraph three charged that
It was further a part of the aforesaid scheme and artifice
to defraud and obtain money by means of false pretenses
and representations and promises that TONY WHITE
approached Clarence L. Crawley in August of 1992 with
the aforementioned scheme and artifice to defraud and
persuaded Clarence F. [sic] Crawley to invest
approximately $8,500.00 in furtherance of the scheme.
The court arraigned White on May 28, 1998. On May 29,
1998, White moved for a dismissal of the superseding
indictment or for a continuance of the trial date of June 3,
1998. The court denied this motion, stating that the
superseding indictment did not make a material change to the
charges as it added only one additional overt act. Further, the
court rejected White’s argument that he needed additional
time to investigate, finding that White had been aware of the
accusation involving Mr. Crawley since the government filed
its motion in limine on April 3, 1998.
We review for abuse of discretion matters within the
discretion of the district court. United States v. Frost, 914
F.2d 756, 764 (6th Cir. 1990). Granting or denying a
continuance is a matter within the discretion of the court. Id.
at 765. We will not reverse a denial of a motion for a
continuance absent a clear abuse of discretion. United States

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34 United States v. Prince, et al. Nos. 98-6361/6362
evidence that Defendant, despite a strong suspicion, closed
his eyes for fear of what he would learn.
Defendant contends that the court erred in failing to instruct
the jury that “‘carelessness or negligence or foolishness’” is
insufficient. We have upheld a jury instruction which stated
that the element of knowledge may be inferred from evidence
that the defendants “‘acted with a reckless disregard for the
truth or with a conscious purpose to avoid learning the truth
about the unlawful transaction involving the checks.’” United
States v. Gullett, 713 F.2d 1203, 1212 (6th Cir. 1983), cert.
denied, 464 U.S. 1069, 104 S.Ct. 973, 79 L.Ed.2d 211 (1984).
In Gullett, we rejected the defendant’s contention that this
instruction authorized a conviction based on negligent
behavior. Id. Just as the language in Gullett did not permit a
conviction based on negligence, neither does the language
here -- deliberately failing to inquire despite a strong
suspicion and shutting his eyes for fear of what he would
learn. See United States v. Thomas, 484 F.2d 909, 912-13
(6th Cir.) (where the defendant was charged with knowingly
making false statements in purchasing a handgun, we upheld
an instruction that to find the defendant knowingly made a
false statement, the jury need not find that the defendant
actually read the form or had it read to him “if the jury finds
from the evidence beyond a reasonable doubt that the
Defendant acted with reckless disregard of whether the
statements made were true or with a conscious purpose to
avoid learning the truth.”), cert. denied, 414 U.S. 912, 94
S.Ct. 253, 38 L.Ed.2d 151 (1973).
Reviewing as a whole the jury instructions provided in the
Joint Appendix, we find that Prince has failed to establish that
the jury instructions, as a whole, were confusing, misleading,
or prejudicial.
D. Denial of Motion for a Continuance
Defendant White was originally indicted on October 20,
1997. On April 3, 1998, the government filed a motion under
Federal Rule of Evidence 404(b) to admit certain evidence
pertaining to Clarence Crawley. That motion contained the
Nos. 98-6361/6362 United States v. Prince, et al. 19
Now I want to read to you count 17 and then
summarize the remaining counts. Count 17 says that on
or about March 10, 1995, in the Western District of
Tennessee, the defendants Tony White and John Richard
Prince, being aided and abetted, counseled and induced
by the other, did knowingly and willfully conduct and
attempt to conduct a financial transaction which involved
the proceeds of a specified unlawful activity – to wit,
wire fraud – in violation of Title 18, United States Code,
Section 1343, said activity being punishable under the
laws of the United States, knowing that the transaction
was designed to conceal and disguise the nature, location,
source, ownership and control of a specified unlawful
activity and that while conducting and attempting to
conduct such financial transactions knew the property
involved in the financial transaction – to wit, a $13,750
cash transfer – represented the proceeds of some form of
unlawful activity, all in violation of Title 18, United
States Code, Section 1956(a)(1)(B)(i) and Section 2.
Now, counts 18 through 85, with the exception of 33,
which has been dismissed, all allege – reallege and
readopt all the facts alleged in count 17 of the indictment
except that the date is different and the amount of the
wire is different.
That code section provides, in relevant part: Whoever,
knowing that property involved in a financial transaction
represents the proceeds of some form of unlawful
activity, conducts or attempts to conduct such a financial
transaction which, in fact, involves the proceeds of a
specified unlawful activity, knowing that the transaction
is designed, in whole or part, to conceal or disguise the
nature, the location, the source, the ownership or the
control of the proceeds of a specified unlawful activity,
shall be guilty of a crime.
In order to prove the crime of money laundering
alleged in counts 17 through 85, except 33, the
government must establish beyond a reasonable doubt
each of the following elements:
* * *

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20 United States v. Prince, et al. Nos. 98-6361/6362
And, third, that the defendant knew that the transaction
was designed, in whole or in part, either to conceal or
disguise the nature, the location, the source, the
ownership or the control of the proceeds of the specified
unlawful activity or to avoid a transaction reporting
requirement under state or federal law.
* * *
The third element of the offense which the government
must prove beyond a reasonable doubt is that the
defendant acted with knowledge that the transaction was
designed to conceal or disguise the nature, location,
source, ownership or the control of the proceeds of a
specified unlawful activity – wire fraud – or to avoid a
transaction reporting requirement.
The term “transaction” includes a purchase, sale, loan,
pledge, a gift, transfer, delivery or other disposition and,
with respect to a financial institution, includes a deposit,
withdrawal, transfer between accounts, exchange of
currency, loan, extension of credit, purchase or sale of
any stock, bond, certificate of deposit or other monetary
instrument, use of a safe depository, or any other
payment, transfer or delivery by, through or to a financial
institution by whatever means effected.
If you find that the evidence established beyond a
reasonable doubt that the defendant knew of the purpose
of a particular transaction in issue and that he knew that
the transaction was either designed to conceal or disguise
the true origin of the property in question or to avoid a
requirement of reporting the transaction, then this
element is satisfied. However, if you find that the
defendant knew of the transaction but did not know that
it was either designed to conceal or disguise the true
origin of the property in question or to avoid a
requirement of reporting the transaction but, instead,
thought that the transaction was intended to further an
innocent transaction, you must find that this element has
not been satisfied and find the defendant not guilty of this
crime.
(Joint Appendix at 1011-1016).
Nos. 98-6361/6362 United States v. Prince, et al. 33
1418 U.S.C. section 287 prohibits making and presenting fraudulent
tax refund checks to the Department of the Treasury.
single provision of the instructions can be reviewed in
isolation; we must consider the charge as a whole. United
States v. Lee, 991 F.2d 343, 350 (6th Cir. 1993) (quoting
United States v. Horton, 847 F.2d 313, 322 (6th Cir. 1988)).
Defendant finds fault in the fact that the jury was not
instructed that it had to find “‘beyond a reasonable doubt that
the defendant was aware of a high probability’ of criminal
activity.” We found no error in the instruction that “‘a
defendant’s knowledge of a fact may be inferred from willful
blindness to the existence of the fact. A showing of
negligence or mistake is not sufficient to support a finding of
willfulness or knowledge.’’” United States v. Hoffman, 918
F.2d 44, 46-47 (6th Cir. 1990) (per curiam). In Hoffman, we
held that because the instructions as a whole required the jury
to find that the defendant had committed all the elements of
the crime beyond a reasonable doubt, any error in an
individual instruction was harmless. Id. at 47. In the present
case, the court instructed the jury on numerous occasions that
the burden of proof was beyond a reasonable doubt and that
the government must satisfy that burden on each element of
the crimes charged. When instructing the jury on the second
element of money laundering, the court stated that the
government must prove that element beyond a reasonable
doubt.
We also have upheld deliberate ignorance instructions
which did not contain the “high probability” language. See
United States v. Holloway, 731 F.2d 378, 380-81 (6th Cir.
1984) (upholding the instruction that a knowledge of
falsehood element in 18 U.S.C. section 28714 may be inferred
from “‘proof that the defendant deliberately closed his eyes or
her eyes to what would otherwise have been obvious to him
or her.’”). This instruction in Holloway is comparable to the
instruction in the present case permitting an inference from

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32 United States v. Prince, et al. Nos. 98-6361/6362
13Sixth Circuit Pattern Jury Instruction 2.09 provides as follows:
(2) No one can avoid responsibility for a crime by deliberately
ignoring the obvious. If you are convinced that the defendant
deliberately ignored a high probability that ____, then you may
find that he knew ____.
(3) But to find this, you must be convinced beyond a reasonable
doubt that the defendant was aware of a high probability that
____, and that the defendant deliberately closed his eyes to what
was obvious. Carelessness, or negligence, or foolishness on his
part is not the same as knowledge, and is not enough to convict.
This, of course, is all for you to decide.
United States v. Lee, 991 F.2d 343, 350 n. 2 (6th Cir. 1993) (citing Pattern
Criminal Jury Instructions, U.S. Sixth Circuit District Judges Ass’n,
(West 1991)). We have upheld an instruction derived from this pattern
instruction. See United States v. Mari, 47 F.3d 782, 785 (6th Cir. 1995)
(citations omitted).
Prince contends that the deliberate ignorance instruction
was contrary to the pattern instruction13 and an erroneous
statement of law. According to Prince, the instruction
permitted the jury to convict him on a negligence standard.
This court reviews jury instructions as a whole to determine
whether they fairly and adequately inform the jury of relevant
considerations and explain the applicable law to assist the jury
in reaching its decision. United States v. Layne, 192 F.3d
556, 574 (6th Cir. 1999) (citations omitted); United States v.
Harrod, 168 F.3d 887, 890 (6th Cir. 1999) (citations omitted).
Trial courts have broad discretion in drafting jury instructions,
and we reverse only for abuse of discretion. United States v.
Moore, 129 F.3d 873, 876-77 (6th Cir. 1997) (citing United
States v. Busacca, 863 F.2d 433, 435 (6th Cir. 1988)). We
will not reverse the trial court unless the jury charge “‘fails
accurately to reflect the law.’” Layne, 192 F.3d at 574
(quoting United States v. Busacca, 863 F.2d 433, 435 (6th
Cir. 1988)). We may reverse a judgment based on an
improper jury instruction “‘only if the instructions, viewed as
a whole, were confusing, misleading, or prejudicial.’”
Harrod, 168 F.3d at 892 (quoting Beard v. Norwegian
Caribbean Lines, 900 F.2d 71, 72-73 (6th Cir. 1990)). No
Nos. 98-6361/6362 United States v. Prince, et al. 21
Defendant Prince argues that while the indictment charged
him under 18 U.S.C. section 1956(a)(1)(B)(i), the government
presented evidence to support a conviction under section 1956
(a)(1)(B)(i) or (ii) and the court instructed the jury that they
could convict Defendant Prince under either section 1956
(a)(1)(B)(i) or (ii). Defendant Prince refers to the above-
quoted jury instructions and to testimony regarding the
structuring of transactions that were greater than $10,000.
The testimony of Chris Mathis provides, in pertinent part, as
follows:
Q Are you aware that $10,700 and these other amounts
in excess of $10,000 required a CTR to be – a cash
transaction report to be reported to the IRS?
A No, sir.
Q You were not aware of that?
A If I received the money I was supposed to report it?
Q No; that the bank would report it.
A I’m assuming they would; yes.
Q Okay. You knew that that report would be made.
A Yes.
Q Now, on the same exhibit there are two checks made
out on the same date, one for $700 and one for
$10,000.
A Yes.
Q Why are there two checks instead of just one?
A I don’t remember. I’m assuming that one came in
and wasn’t correct and I went back and got – and got
the – what money I was supposed to get.
Q Um-hum. Now, that would be the first wire transfer
reflected on the other page; is that correct? February
the 13th?
A Yes; ten thousand seven hundred.
* * *
Q Mr. Mathis, some of these transactions occurred
within – either on the same day or within very short
days, and they’re almost $10,000. Did that not send
any flags up to you that something wasn’t quite
kosher?

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22 United States v. Prince, et al. Nos. 98-6361/6362
A No. Initially, the first couple of times I didn’t think
anything about it. And then the third time, I
indicated I didn’t want – that it didn’t seem correct
to me to be doing this, and I asked that it not be done
again, and then I was talked into doing it one more
time. * * *
Q Did you tell him it was a violation of law to
structure transactions?
A No, sir.
Q You know what structuring is, don’t you?
A No.
Q You don’t know that it’s illegal to have cash
transactions barely less than $10,000 so that it’s
avoided for reporting?
A No, sir, I didn’t know that.
* * *
[on cross-examination by counsel representing Prince]
Q I believe you said when Mr. Grinalds first asked you
about the bank reporting transactions of $10,000 or
more, you said you assumed they would be reported;
is that right?
A If they – yeah, if they legally have to. I didn’t know
exactly what the breakdown was, but – I don’t get
involved in that type thing at all.
Q It didn’t concern you that this would be reported?
A No, it did not. Didn’t think about it. I wish I had of,
by the way.
(Joint Appendix at 707-08, 712-13, 721).
Although Defendant Prince does not refer to her testimony in
his appellate brief, Mary Lucille Bell’s testimony provides, in
pertinent part, as follows:
* * *
Q And the check amount – check number is 1549; is
that correct?
A Right.
Nos. 98-6361/6362 United States v. Prince, et al. 31
12In his appellate brief, Defendant Prince fails to specifically identify
the jury instructions to which he objects. As quoted above, the court
instructed the jury on willful blindness when it instructed the jury on the
second element of money laundering. The court also instructed the jury
on deliberate ignorance in explaining the second element of wire fraud,
i.e., defendant was a knowing participant and acted with a specific intent
to defraud. Those instructions provide as follows:
As a practical matter, then, in order to sustain the charges
against the defendants, the government must establish beyond a
reasonable doubt that defendant knew that his conduct as a
participant in the scheme was calculated to deceive, and,
nonetheless, he associated himself with the alleged fraudulent
scheme for the purpose of causing some loss to another.
The government can also meet its burden of showing that
the defendant had knowledge of the falsity of the statements if
it establishes beyond a reasonable doubt that he acted with
deliberate disregard of whether the truths -- of whether the
statements were true or false or with a conscious purpose to
avoid learning the truth.
If the government establishes that the defendant acted with
deliberate disregard for the truth, the knowledge requirement
would be satisfied unless the defendant actually believed the
statements to be true. This guilty knowledge, however, cannot
be established by demonstrating that the defendant was merely
negligent or foolish.
To conclude on this element, if you find that the defendant
was not a knowing participant in the scheme, or that he lacked
the specific intent to defraud, you should acquit him. On the
other hand, if you find that the government has established
beyond a reasonable doubt not only the first element – namely,
the existence of the scheme to defraud – but also the second
element – that the defendant was a knowing participant and
acted with specific intent to defraud – and if the government also
establishes the third element, which I am about to instruct you,
then you have a sufficient basis upon which to convict the
defendant.
(Joint Appendix at 1009-10). Based on Prince’s argument, it appears that
he contests only the willful blindness instruction provided in the
instructions on money laundering which is quoted in the text above.
(Joint Appendix at 1014).12

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30 United States v. Prince, et al. Nos. 98-6361/6362
right to the assurance that a group of independent citizens had concluded
that the allegations were worthy of being presented to a jury. Id.
inconsistencies constituted a variance which did not rise to
the level of a constructive amendment.
C. Deliberate Ignorance Instruction
Defendant Prince contends that the district court committed
reversible error when it instructed the jury on deliberate
ignorance. The court instructed the jury on willful blindness
while defining the second element of money laundering, i.e.,
knowledge that the property involved in the financial
transaction was the proceeds of some form of unlawful
activity. The pertinent instructions provide as follows:
* * *
The second element of the offense which the government
must prove beyond a reasonable doubt is that the
defendant knew that the property involved in the
financial transaction was the proceeds of some form of
unlawful activity. I instruct you that this element refers
to a requirement that the defendant knew the property
that was involved in the transaction represented proceeds
from some form, though not necessarily which form, of
activity that constitutes a felony under state, federal or
foreign law. I instruct you as a matter of law that wire
fraud is a felony.
You may infer that the defendant had knowledge from
circumstantial evidence or from evidence showing willful
blindness by the defendant. Willful blindness exists
when a defendant, whose suspicion has been aroused,
deliberately fails to make further inquiry. If you find that
the defendant had a strong suspicion that someone
withheld important facts, yet shut his eyes for fear of
what he would learn, you may conclude that he acted
knowingly.
Nos. 98-6361/6362 United States v. Prince, et al. 23
Q Check 1548 is for the same amount on the same
day?
A Right.
Q And there are two checks for $9,500; is that correct?
A That is right.
Q Why didn’t you write one check for $19,000?
A Well, I was told at – the bank said if I wrote the
checks for less than $10,000 that they would not be
reported. And that’s what I did: I wrote the checks
for less than ten. I also had checking accounts in
both of these banks, too.
Q Okay. Exhibit 20 shows a withdrawal of $18,000, a
deposit ticket, and then a withdrawal of – if my math
is correct – $18,000.* * *
Q What are the dates on those checks, please, ma’am?
A September the 1st, ‘95.
Q Again, you wrote two checks instead of one?
A Right.
Q On August 9th of ‘95 how much did you give John?
A The amount of those two checks.
Q What’s the total amount? Fifteen thousand?
A Fifteen thousand is correct.
Q October 24th, two checks. How much were those?
A Nineteen thousand, it looks like, or twenty.
(Joint Appendix at 449-50).
Defendant Prince failed to object to the evidence and the
jury instructions which he alleges amended the indictment. In
its appellate brief, the government does not raise the issue of
waiver. In United States v. Beeler, 587 F.2d 340, 343 (6th
Cir. 1978), we held that the defendant did not waive objection
to the variance between the indictment and proof at trial by
not raising the issue at trial. We later explained this ruling in
United States v. Williams, 962 F.2d 1218, 1225 (6th Cir.
1992), while addressing whether an objection to an alleged
variance between a bill of particulars and proof offered at trial
must be made when the evidence is offered. We held that
Williams, by failing to object at trial, did not preserve this

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24 United States v. Prince, et al. Nos. 98-6361/6362
issue for appeal. Id. Williams cited Beeler in support of his
contention that it was unnecessary for him to object at trial.
Id. We responded that the purpose of an objection is to allow
the court to correct its mistakes. Id. at 1225-26. While the
Federal Rules of Criminal Procedure permit the amendment
of a bill of particulars at any time that justice requires,
indictments “may not be amended because doing so would
‘substitute the prosecutor’s judgment for that of the
constitutional body, the Grand Jury, in framing the charge
against a defendant.’” Id. at 1226. Therefore, we concluded
that an objection to an alleged variance from a bill of
particulars “serves a useful function” and must be raised at
trial in order to preserve the issue for appeal. Id.
In the present case, the alleged mistake was allowing
certain testimony and inserting section 1956 (a)(1)(B)(ii) in
the jury instructions. Both of these alleged errors could have
been corrected. See United States v. Garguilo, 554 F.2d 59,
63 (2nd Cir. 1977) (holding that “[b]y failing to object to the
introduction of the evidence on capital gains, by conceding
that the capital gains could properly be used as proof of items
of income in 1969, and by failing to argue to the trial judge
that this constituted an impermissible variance of the
indictment, appellant waived his right to raise that portion of
his variance argument on appeal.”). According to the
transcripts provided on appeal, Prince failed to object.
Even if, arguendo, Prince preserved this issue for appeal,
there was no amendment or fatal variance to the indictment.
We review de novo whether there was an amendment or a
variance to the indictment. United States v. Flowal, 163
F.3d 956, 962 (6th Cir. 1998).
“‘[A]n amendment involves a change, whether literal or in
effect, in the terms of the indictment.’” Id. (quoting United
States v. Barrow, 118 F.3d 482, 488 (6th Cir. 1997)). In
contrast, “‘[a] variance occurs when ‘the charging terms [of
the indictment] are unchanged, but the evidence at trial proves
facts materially different from those alleged in the
indictment.’” Id. If a variance infringes too strongly upon the
Nos. 98-6361/6362 United States v. Prince, et al. 29
11In Moore, 129 F.3d at 874, the defendant contended that the trial
court’s instructions on three mail fraud counts constructively amended the
indictment. The mail fraud counts of the indictment charged that the
defendant “‘devised and intended to devise a scheme and artifice to
defraud and obtain money’ by means of fraudulent pretenses,
representations, and processes.” Id. In describing the manner in which
the defendant used the Postal Service, the indictment referred to “‘the
aforesaid scheme and artifice to defraud,’ omitting the words ‘and to
obtain money’ that were included in the two earlier and several later
descriptions of the scheme.” Id. In the jury instructions, the court
defined the first element of the mail fraud offense as “‘the act or acts of
having devised or having intended to devise a scheme or artifice to
defraud or attempt to defraud or obtain money by false or fraudulent
representations as charged in the indictment....’” Id. at 874-75. The
court further instructed the jury that “‘[t]he government need not establish
that all the pretenses, that all the representations, statements and acts set
forth in the indictment occurred. But must show beyond a reasonable
doubt that one or more acts or statements occurred such as will satisfy you
of the existence of the scheme to defraud or obtain money.’” Id. at 875.
We rejected the defendant’s argument of constructive amendment
reasoning that anyone reading the mail fraud counts would understand the
charges alleged, the defendant would know what charges he would face
at trial, and the court would understand what was required for a
conviction. Id. at 878. We also found that the court’s instructions did
not change the charge or broaden the scope of the indictment, they raised
no possibility that the defendant could be prosecuted later for the same
offense, and they did not require the defendant to defend against an
uncharged scheme. Id. We found no infringement of the defendant’s
assurance that independent citizens have concluded that the
allegations are “‘worthy of being presented to a jury’” for a
determination of guilt or innocence. See Moore, 129 F.3d at
878 (citations omitted). There is not a substantial likelihood
that the jury convicted Prince of an offense other than that
charged in the indictment. See Flowal, 163 F.3d at 962;
Manning, 142 F.3d at 339 (“A variance crosses the
constructive amendment line only when the variance creates
‘a substantial likelihood’ that a defendant may have been
convicted of an offense other than that charged by the grand
jury”) (citing United States v. Hathaway, 798 F.2d 902, 911
(6th Cir. 1986)).
None of the purposes behind the constructive amendment
rule were frustrated here. See Moore, 129 F.3d at 873.11 Any

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28 United States v. Prince, et al. Nos. 98-6361/6362
10In his appellate brief, Defendant Prince stated that he
“emphatically testified that he did not have knowledge of an illegal
scheme to defraud.”
of the proceeds of the wire fraud. Proof that Prince avoided
transactions that would require a bank to submit a cash
transaction report to the Internal Revenue Service supports the
conclusion that Prince was intending to conceal the
transactions. In its closing argument, the government stated
that the elements of money laundering were that the
defendants “committed a transaction in an effort to conceal
the proceeds of the criminal activity.” At least three times
during its closing argument, the government stated that Prince
conducted the transactions in an effort to hide and to conceal.
The government did not argue that Prince conducted the
transactions in an effort to avoid a reporting requirement.
Prince has not provided this Court with transcripts from his
counsel’s opening or closing arguments, but from his
testimony on direct examination it appears that Defendant’s
theory was that he was an innocent victim.10 Mr. Mathis and
Mrs. Bell’s testimonies as to the transactions involving more
than $10,000 was, arguably, proof of an intent to conceal.
Thus, Prince had an incentive to challenge these testimonies
on cross-examination. Likewise, he had an incentive to rebut
these testimonies. He testified and thus had the opportunity
to rebut these testimonies by stating that he did not instruct
Mr. Mathis or Mrs. Bell on how to structure the transactions,
that there was an innocuous reason for the structure of those
transactions, or that he did not know that a cash transaction
report would be generated. We conclude that Prince’s
defense was unaffected as he had the motive and opportunity
to rebut the only evidence presented that could support an
argument for an intent to avoid a transaction reporting
requirement and he chose not to rebut that evidence.
Prince has not argued nor do we find that the court’s
instructions raised the possibility that he could be prosecuted
later for the same offense. Prince has not argued nor do we
find that there has been an infringement on his right to the
Nos. 98-6361/6362 United States v. Prince, et al. 25
defendant’s Sixth Amendment right to be informed of the
nature and cause of the accusation, the variance is considered
a “constructive amendment.” Martin v. Kassulke, 970 F.2d
1539, 1542 (6th Cir. 1992) (citing United States v. Ford, 872
F.2d 1231, 1235 (6th Cir. 1989)). A constructive amendment
occurs when “‘the terms of the indictment are in effect altered
by the presentation of evidence and jury instructions which so
modify essential elements of an offense charged that there is
a substantial likelihood that the defendant may have been
convicted of an offense other than that charged in the
indictment.’” United States v. Manning, 142 F.3d 336, 339
(6th Cir. 1998) (quoting United States v. Hathaway, 798 F.2d
902, 910 (6th Cir. 1986)). Both amendments and constructive
amendments are considered per se prejudicial and warrant
reversal. United States v. Ford, 872 F.2d 1231, 1235 (6th Cir.
1989) (citations omitted); United States v. Beeler, 587 F.2d
340, 342 (6th Cir. 1978) (citing United States v. Somers, 496
F.2d 723, 744 (3rd Cir. 1974)). The harmless error test
generally applies to variances. Martin, 970 F.2d at 1542;
Beeler, 587 F.2d at 342 (citations omitted).
In this case, there was no actual amendment as Defendant
Prince was indicted on and convicted of money laundering.
See Martin, 970 F.2d at 1542 (“This case does not present us
with an actual amendment; Martin was charged with aiding a
rape, and Jameson was clearly convicted for committing a
rape.”). Thus, we must determine whether the variance rises
to the level of a constructive amendment.
To obtain reversal of a conviction because of a variance
between the indictment and the evidence produced at trial, a
defendant must satisfy a two-prong test: (1) the variance must
be demonstrated and (2) the variance must affect some
substantial right of the defendant. United States v.
Maliszewski, 161 F.3d 992, 1014 (6th Cir. 1998) (quoting
Manning, 142 F.3d at 339 (citations omitted)). A substantial
right is affected only when the defendant establishes prejudice
in his ability to defend himself or to the overall fairness of the
trial. Manning, 142 F.3d at 339 (citing United States v.
Bouquett, 820 F.2d 165, 168 (6th Cir. 1987)).

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26 United States v. Prince, et al. Nos. 98-6361/6362
The purposes underlying the rule against amendments
and constructive amendments include notice to the
defendant of the charges he will face at trial, notice to the
court so that it may determine if the alleged facts are
sufficient in law to support a conviction, prevention of
further prosecution for the same offense, and finally, of
‘paramount importance,’ the assurance that a group of
citizens independent of prosecutors or law enforcement
officials have reviewed the allegations and determined
that the case is worthy of being presented to a jury for a
determination of the defendant’s guilt or innocence.
United States v. Moore, 129 F.3d 873, 878 (6th Cir. 1997)
(citations omitted).
Prince has illustrated a variance between the indictment and
the jury instructions. It is not so clear whether he has
illustrated a variance between the indictment and the evidence
presented at trial. Arguably, the evidence to which Prince
now objects was evidence establishing that the transactions
were designed to conceal – an element of the money
laundering offense charged in the indictment. However, since
we acknowledge a variance between the indictment and the
jury instructions, we will proceed to the second prong of the
test, i.e., whether the variance affected some substantial right
of the defendant.
In Martin, 970 F.2d 1539, one of the defendants, Martin,
who was convicted of aiding and abetting first-degree rape,
sought habeas corpus relief contending that the variance
between the indictment and the jury instructions constituted
a constructive amendment. The indictment charged Martin
with the offense of “RAPE IN THE FIRST DEGREE by
knowingly and unlawfully engaging in sexual intercourse with
Nancy Bellamy by forcible compulsion and further causing
said Nancy Bellamy serious physical injury.” Id. at 1542.
The jury instruction by which Martin was found an accessory
to the rape listed the elements of rape as engaging in sexual
intercourse and doing so by forcible compulsion or doing so
while the victim was incapable of consent because she was
Nos. 98-6361/6362 United States v. Prince, et al. 27
physically helpless. Id. We defined the “key question” in
determining whether the case involved a variance or a
constructive amendment as whether rape by forcible
compulsion and rape due to physical helplessness should be
seen as two alternative crimes or merely two alternative
methods by which the one crime, rape, could have been
committed. Id. at 1543. If they should be seen as two
alternative methods, then the addition of the physically
helpless charge would be a variance. Id. We rejected
Martin’s argument that the due process right to clear notice of
criminal charges includes notice of the exact method by
which the criminal actions were alleged to have been
committed. Id. We held that the rape elements constituted
alternative methods and thus the addition was a variance. Id.
at 1545. Finding that the evidence supported the forcible
compulsion theory and that the presented defense of consent
represented a full defense to both methods, we held that no
prejudicial error occurred. Id. at 1546-47.
In the present case, Defendant Prince has failed to establish
a violation of a substantial right, and thus he has failed to
establish that the variance between the indictment and the jury
instructions along with the evidence at trial constituted a
constructive amendment. The indictment provided notice to
Prince and the trial court of the money laundering charges
Prince faced at trial. As in Martin, the added instruction
provided an alternative method to one offense, here, money
laundering. Prince was not prejudiced even by this alternative
method, as it appears that the government did not pursue this
theory either during the evidence or argument phases of the
trial. Nowhere in the portions of the transcript provided to
this Court does the government argue to the jury that it would
establish or has established that Prince engaged in money
laundering to avoid a transaction reporting requirement. In
the transcript of the government’s cross-examination of
Prince, there are no questions designed to elicit testimony
regarding his knowledge of or intent to avoid a reporting
requirement. Arguably the above testimony of Mr. Mathis
and Mrs. Bell was elicited to support the allegation that Prince
engaged in money laundering in order to conceal the location

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