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State v. Duhon

Court of Appeals of Louisiana, First Circuit

December 28, 2018

STATE OF LOUISIANA
v.
ARMOND DUHON

          Appealed from the Sixteenth Judicial District Court In and for the Parish of St. Mary, Louisiana Docket Number 2015-195751, Honorable Keith R. J. Comeaux, Judge Presiding.

          M. BofilI Duhe Walter J. Senette, Jr. Franklin, LA Counsel for Appellee, State of Louisiana.

          Robert Clauson Vines W. Claire Howington New Iberia, LA Sherry Watters New Orleans, LA, Counsel for Defendant/Appellant, Armond Duhon.

          BEFORE: WHIPPLE, C.J., McCLENDON, AND HIGGINBOTHAM, JJ.

          WHIPPLE, C.J.

         The defendant, Armond Duhon, was charged by bill of information with one count of racketeering, a violation of LSA-R.S. 15:1353, two counts of money laundering valued at $20,000.00 or more, but less than $100,000.00, violations of LSA-R.S. l4;23O(E)(3),[1] and 221 counts of theft valued at $1,500.00 or more,[2]violations of LSA-R.S. 14:67(B)(1).[3] He pled not guilty on all counts. The defendant filed a motion to waive trial by jury, the trial court granted the motion, and the defendant proceeded to a bench trial. The defendant was found guilty of the responsive offense of theft valued at $500.00 or more, but less than a value of $1,500.00, on counts 31, 516, 570, 600, 638, 656, 657, 660, 665, 669, 675, 676, 687, 690, and 761, violations of LSA-R.S. 14:67(B)(2).[4] He was found guilty as charged on all of the remaining 209 counts. The trial court denied the defendant's motion for a new trial.

         On count 1 (racketeering), the defendant was sentenced to twenty years imprisonment at hard labor without the benefit of parole, probation, or suspension of sentence. On count 565 (money laundering), the defendant was sentenced to fifteen years imprisonment at hard labor. On count 754 (money laundering), the defendant was sentenced to twelve years imprisonment at hard labor. On the fifteen aforementioned responsive verdicts to counts of theft valued at $500.00 or more, but less than $1,500.00, the defendant was sentenced to six months in parish jail on each count, to be served concurrently. On the 206 remaining counts of theft, the defendant was sentenced to eight years imprisonment at hard labor, to be served concurrently with the sentences imposed on counts 1, 565 and 754. The defendant was also ordered to pay $2,328,000.00 restitution to the Guarisco family and $200,000.00 to the D.A.'s office for prosecution fees. The trial court denied the defendant's oral motion to reconsider sentence.

         The defendant now appeals, briefing the following assignments of error:

1. The trial court erred in conducting a judge trial without having a valid waiver of the right to a jury that met the requirements of [LSA-C.Cr.P. art.] 780.
2. The trial court erred in allowing the State to sever the co-defendant on the day of trial to thwart the presentation of the defense, and compounded the error by denying the request for a continuance and allowing the State to elect to try [the defendant] first and immediately.
3. The convictions are invalid for all counts of misdemeanor theft plus the counts of felony theft that occurred before November 9, 2012, and one count of money laundering that occurred before November 9, 2010, which prescribed before the bill of information was filed.
4. The trial court erred in allowing the testimony of a purported handwriting expert who had no factual basis for rendering an opinion.
5. The trial court erred in allowing bank records into evidence without the proper foundation and in violation of the right to confrontation.
6. The State failed to prove, beyond a reasonable doubt, that [the defendant] engaged in racketeering, money laundering or theft.
7. The trial court erred in imposing unconstitutionally excessive sentences on the [sixty-three-year-old] first offender and denying his motion to reconsider.

         For the following reasons, we reverse and render modified convictions on counts 34, 39, 49, 57, 69, 73, 84, and 89, reverse the convictions on counts 87 and 751, and affirm the remaining convictions. As to the sentences, we reverse the sentences on counts 87 and 751, vacate the sentence on count 1 and remand for resentencing on count 1, and affirm the remaining sentences.

         STATEMENT OF FACTS

         Detective Travis Trigg of the Morgan City Police Department ("MCPD") began investigating theft complaints after a representative of Capital Management Consultants, Inc. ("CMCI"), a real estate investment and holding company for art galleries and apartment buildings, advised the MCPD of suspicious transactions. At the time of the complaint, Karen Duhon ("Mrs. Duhon") was the bookkeeper and DonnaSue Peveto ("Peveto") was the overseer of art inventory at CMCI. After questioning witnesses regarding the complaint, Detective Trigg executed a search warrant at CMCI, including Mrs. Duhon's office, and at the Duhon residence. In executing the warrants, Detective Trigg seized various financial documents, ledgers, and a large amount of lottery tickets and other gambling related items. Detective Trigg further issued search warrants for casino records, and the bank records of the defendant, Mrs. Duhon, Peveto, and A-B-C Siding Company of Morgan City, Inc. ("A-B-C Siding"), a general contracting corporation owned by the defendant. The search warrants for bank records were specifically issued at MidSouth Bank, Whitney Bank, and Morgan City Bank, requesting records from 1999 through 2010, initially, and thereafter, warrants issued requesting records from 2011 through 2014. Detective Trigg further received records from Leah Guarisco McGriff (one of the members of the Guarisco family that owned CMCI) that were recovered from computers at CMCI.

         Based on his review of the documents and questioning of witnesses, Detective Trigg noted the following patterns of activity. In multiple instances, the amounts identified by Mrs. Duhon in the bank ledger differed from the amount written on the corresponding checks. Specifically, Detective Trigg noted that Mrs. Duhon would receive checks for around $14,000.00 and $9,500.00 that, under CMCI records, were documented as $1,000.00 or less. Detective Trigg testified that although the defendant was not an employee of CMCI, he and Mrs. Duhon opened a joint checking account at MidSouth Bank and ordered checks that indicated that the account belonged to CMCI. Detective Trigg testified that it was his understanding that Scott Tucker, ("Tucker") the owner of Nelson-Tucker, L.L.C. ("Nelson-Tucker"), secretary and shareholder of CMCI, and president of Hellenic, L.L.C. (a separate Guarisco holding), was authorized to write checks on CMCI's actual bank account. Detective Trigg reviewed W-2 statements filed by Mrs. Duhon and CMCI, signed by Mrs. Duhon, and Mrs. Duhon's bank records from 1999 through 2013. Detective Trigg noted that the income reported on the W-2 forms was far less than the amount of money that was diverted from CMCI to the Duhons.

         On July 7, 2010, a check for $50,000.00 was written to Mrs. Duhon out of CMCI's bank account. Further, there was a corresponding deposit of that amount into Mrs. Duhon's personal Whitney Bank account. The following day, July 8, 2010, the defendant purchased a 2010 Toyota Sequoia in his name, and in accordance with the title and registration, with Mrs. Duhon's personal check in the amount of $40,499.50. The Toyota Sequoia was later sold back to Courtesy Toyota for $26,000.00, in the form of a cashier's check made out to the defendant. Three years later, on October 17, 2013, the defendant similarly purchased a 2014 Ford-250 in his name, as indicated by the title and registration, with a check from his A-B-C Siding MidSouth Bank checking account. On the day the check was written, the A-B-C Siding account did not have sufficient funds to cover the check. The following day, October 18, 2013, a MidSouth Bank check for $30,000.00 made payable to "A-B-C Siding Co" was signed by Mrs. Duhon and deposited into the defendant's A-B-C Siding MidSouth Bank checking account. The check bore the following names as the payor: Capital Management Consultants, Inc., Armond Duhon, and Karen Duhon.[5]

         In February of 2014, the Guarisco family hired Mark Munson, a certified public accountant (CPA), to conduct a forensic analysis for CMCI. Munson testified at trial as an expert, and as a certified public accountant with an emphasis in audit and reviews and compilations. Munson was initially retained by the Guariscos after Tucker died to prepare the 2013 corporation tax returns. When he attempted to acquire the year-end working trial balance and general ledger, he learned that they were prepared by Tucker and Mrs. Duhon. Along with Laura Guarisco, Munson made several requests to Mrs. Duhon to obtain the information and received excuses in response for up to six weeks. Munson ultimately received a package from Mrs. Duhon, however, it did not contain the necessary financial documents, such as the working trial balance and the general ledger.

         In late February to early March of 2014, Munson met with some of the Guarisco siblings in Morgan City, and they searched Mrs. Duhon's office. They found the bank statements, check register, and documentation showing that she took steps to begin the bookkeeping for 2013, but did not actually make any significant progress. Munson took the information back to his office and prepared the books for 2013. He noted that the amount of income that Mrs. Duhon told Laura she was making did not coincide with the records. He stated that in comparing bank statements and check stubs, it became apparent that checks were being written for one amount and clearing the bank for substantially more. He noted that the amount reflected in the check register was often significantly less than the amount that cleared the bank for the corresponding check.

         The Guariscos asked Munson to examine the books for previous years to detect other discrepancies, and Munson prepared a written analysis of the checks and the discrepancies, showing how unauthorized funds were concealed. He noted patterns such as Mrs. Duhon writing herself a check and recording it as $1,000.00, but the check clearing for $14,000.00. Such discrepancies appeared for every month for the four years that Munson analyzed, from 2010 to 2013. Munson further noted that there was also a pattern of checks written to Peveto, which normally were written for a smaller amount between $100.00 and $400.00, but would clear for $9,000.00 plus the smaller amount. After completing his analysis, as stated in his report, Munson concluded that checks written to Mrs. Duhon and Peveto during the four-year period that cleared in excess of the amounts recorded on the book of the company were in the amount of $273,100.00 for 2010, $289,500.00 for 2011, $254,000.00 for 2012, and $249,000.00 for 2013. Munson further provided a detailed schedule of each of the understated and overstated checks comprising the stated totals for each year. Munson determined where the excess amount of the checks were recorded on the books by detecting the checks on the books that were recorded for significantly more than they actually cleared the bank. The total excess amount of the checks, which had a higher recording than their clearance amount, equaled the clearance total for the checks written to Mrs. Duhon and Peveto.[6]

         Munson further determined that during the same time period, working trial balance documents prepared by Tucker and Mrs. Duhon included journal entries that further concealed the transactions. He testified that in 2010, journal entries were made to write off accounts receivable charged to Tucker in the amount of $123,085.00 and a loan to Mrs. Duhon in the amount of $50,000.00 that was written off as an expense in the books. Additional loans to Mrs. Duhon were written off in 2011 in the amount of $22,000.00. Another tactic of concealing the overstated amounts included recording checks that never cleared the bank. For example, in 2010, the total for recorded checks that did not clear the bank was $273,100.00. Checks written to Mrs. Duhon were traced to a joint bank account with the defendant. The checks were deposited either the same day or the day following the written date reflected on the check. For nearly every month, there was, in addition, a transfer of funds from the joint account (one that includes CMCFs company name) into the A-B-C Siding account.

         He examined CMCI banking transactions signed by Mrs. Duhon and checks purportedly signed by Tucker. As to the CMCI-identified checks written on the Duhon account, Munson testified that based on his understanding, CMCI was not on the bank statement itself, although its name was on checks and deposit slips. As he was familiar with Tucker's program and style of preparation, Munson noted that, in his opinion, the working trial balance documents (retrieved from Tucker's computer and a file cabinet at Hellenic) were prepared by Tucker. He concluded that the monthly cash receipts, disbursement journal, and the general ledger trial balance, which were all maintained on Mrs. Duhon's computer, were prepared by Mrs. Duhon. In addition to the electronic items, Mrs. Duhon further kept a manual check register in her office. Munson referred the Guariscos to an accounting firm to conduct a forensic fraud analysis. Subsequently, a forensic analysis conducted by Joan Martin, the CPA retained by the Guariscos, further supported the charges of racketeering, money laundering, and theft in the instant case.

         SUFFICIENCY OF THE EVIDENCE

         (Assignment of Error No. 6)

         In assignment of error number six, the defendant argues that the State's evidence that he was a principal to the instant offenses was wholly insufficient. He argues that he was blinded by his love for his wife and completely relied upon and trusted her regarding business and family operations. The defendant claims that there is a "glaring lack of evidence" of his participation and awareness of what occurred, contending that the crimes are "all about Karen Duhon and her involvement with CMCI, Scott Tucker, and DonnaSue Provato [sic]." The defendant notes that his wife, who he claims had a gambling addiction, controlled what he knew about CMCI, family finances, and A-B-C- Siding, further stating that she performed all of the bookkeeping and banking.

         In addition to the claims regarding the lack of evidence that he was a principal to the instant offenses, the defendant raises the following arguments as to the crimes herein. As to the racketeering offense, the defendant contends that the State failed to prove beyond a reasonable doubt that there was a criminal enterprise existing separately from its alleged racketeering activity, that the defendant was a member of the group of individuals comprising the enterprise, or that he knowingly received proceeds. The defendant claims that he did not write, sign, deposit, or endorse any of the checks. He claims that he was not in the CMCI business and had no contact with Peveto or Tucker. The defendant further claims that the alliance between Tucker, Peveto, and Mrs. Duhon existed only for the purpose of fulfilling Tucker's plan for theft and money laundering. As to the counts of money laundering, the defendant contends that the State failed to prove beyond a reasonable doubt and to the exclusion of a reasonable hypothesis of innocence that he conducted the transaction regarding count 565, or that he knew the proceeds were from a criminal activity as to counts 565 and 754.

         Regarding the 221 counts of theft, the defendant argues that the State failed to prove beyond a reasonable doubt and to the exclusion of a reasonable hypothesis of innocence that there was a taking, that all of the checks belonged to another, that the checks were taken without authority or consent, and that the defendant specifically intended to commit theft. The defendant notes that Guarisco signed one of the first checks for $9,980.00 to Mrs. Duhon and Tucker signed the subsequent checks, contending that only Tucker and Mrs. Duhon could give consent or authority for CMCI. As to the group of checks written from the MidSouth Bank joint account to the defendant's A-B-C Siding account, he argues that the State failed to prove that the property involved in those counts belonged to another.[7] The defendant contends that the checks involved in counts 2, 510, 531, and 532 were under the sole control of Mrs. Duhon. He further contends that the State failed to prove a taking as to the checks in counts 6, 11, 13, 17, 20-22, 28, 34-37, 39, 41, 49-62, 64, 65, 67-81, 83, 84, 87, 347, 349, 372, 447, 451, 454, 457, 461, 466, 471, 475, 483, 487, 488, 493, 495, 496, 528, 622, 630, 635, 641, 646, 651, 655, 658, 682, and 711. Finally, as to the checks deposited into his joint account by Mrs. Duhon, regarding counts 65, 352, 354, 364, 366, 369, 378, 381, 386, 389, 393, 397, 401, 408, 411, 414, 417, 420, 427, 430, 435, 440, 498, 502, 503, 505, 508, 509, 511, 517, 526, 528, 534, 539, 607, 619, 648, 663, 668, 673, 680, 686, 693, 694, 700, 705, 708, 714, 718, 720, 722, 725, 727, 731, 733, 736, 739, 742, 747, 750, 760, 766, 770, and 774, the defendant argues that there was no evidence to show that he was aware of the deposits.

         When issues are raised on appeal contesting the sufficiency of the evidence and alleging one or more trial errors, the reviewing court should first determine the sufficiency of the evidence. State v. Hearold, 603 So. 2d 731');">603 So. 2d 731, 734 (La. 1992). The reason for reviewing sufficiency first is that the accused may be entitled to an acquittal under Hudson v. Louisiana, 450 U.S. 40, 43, 101 S. Ct. 970, 972, 67 L. Ed. 2d 30 (1981), if a rational trier of fact, viewing the evidence in accordance with Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979), in the light most favorable to the prosecution, could not reasonably conclude that all of the essential elements of the offense have been proven beyond a reasonable doubt. State v. Hearold, 603 So. 2d at 734. When the entirety of the evidence is insufficient to support the conviction, the accused must be discharged as to that crime, and any discussion of trial error issues as to that crime would be pure dicta since those issues are moot. However, when the entirety of the evidence is sufficient to support the conviction, the accused is not entitled to an acquittal, and the reviewing court must then consider the other assignments of error to determine whether the accused is entitled to a new trial. If the reviewing court determines that there has been trial error (which was not harmless) in cases in which the entirety of the evidence was sufficient to support the conviction, then the accused will be granted a new trial, but is not entitled to an acquittal. See State v. Hearold, 603 So. 2d at 734.

         A conviction based on insufficient evidence cannot stand as it violates Due Process. See U.S. Const, amend. XIV; La. Const, art. I, § 2. The constitutional standard for testing the sufficiency of the evidence, as enunciated in Jackson v. Virginia, requires that a conviction be based on proof sufficient for any rational trier of fact, viewing the evidence in the light most favorable to the prosecution, to find the essential elements of the crime beyond a reasonable doubt. See LSA-C.Cr.P. art. 821(B); State v. Ordodi, 2006-0207 (La. 11/29/06), 946 So. 2d 654');">946 So. 2d 654, 660. In conducting this review, we also must be expressly mindful of Louisiana's circumstantial evidence test, which states in part, "assuming every fact to be proved that the evidence tends to prove," every reasonable hypothesis of innocence is excluded. LSA-R.S. 15:438. State v. Wright, 98-0601 (La. App. 1st Cir. 2/19/99), 730 So. 2d 485, 486, wits denied, 99-0802 (La. 10/29/99), 748 So. 2d 1157 & 2000-0895 (La. 11/17/00), 773 So. 2d 732.

         All persons concerned in the commission of a crime, whether present or absent, and whether they directly commit the act constituting the offense, aid and abet in its commission, or directly or indirectly counsel or procure another to commit the crime, are principals. LSA-R.S. 14:24. However, a defendant's mere presence at the scene is not enough to "concern" him in the crime. Only those persons who knowingly participate in the planning or execution of a crime may be said to be "concerned" in its commission, thus making them liable as principals. A principal may be connected only to those crimes for which he has the requisite mental state. State v. Neal. 2000-0674 (La. 6/29/01), 796 So. 2d 649, 659, cert. denied, 535 U.S. 940, 122 S. Ct. 1323, 152 L. Ed. 2d 231 (2002).

         The trier of fact is free to accept or reject, in whole or in part, the testimony of any witness. State v. Richardson, 459 So. 2d 31, 38 (La. App. 1st Cir. 1984). Unless there is internal contradiction or irreconcilable conflict with the physical evidence, the testimony of a single witness, if believed by the trier of fact, is sufficient to support a factual conclusion. State v. Marshall, 2004-3139 (La. 11/29/06), 943 So. 2d 362');">943 So. 2d 362, 369, cert denied, 552 U.S. 905, 128 S. Ct. 239, 169 L. Ed. 2d 179 (2007). It is the trier of fact who weighs the respective credibilities of the witnesses, and this court generally will not second-guess those determinations. See State v. Hughes, 2005-0992 (La. 11/29/06), 943 So. 2d 1047, 1051.

         Racketeering

         The Louisiana Racketeering Act is contained in LSA-R.S. 15:1351-56. The activities prohibited by the act are set forth in LSA-R.S. 15:1353, and provide in pertinent part, as follows:

B. It is unlawful for any person, through a pattern of racketeering activity, knowingly to acquire or maintain, directly or indirectly, any interest in or control of any enterprise or immovable property.
C. It is unlawful for any person employed by, or associated with, any enterprise knowingly to conduct or participate in, directly or indirectly, such enterprise through a pattern of racketeering activity.

         In pertinent part, "racketeering activity" means committing, attempting to commit, conspiring to commit, or soliciting, coercing, or intimidating another person to commit money laundering (later defined herein), a crime that is punishable under LSA-R.S. 14:230. See LSA-R.S. 15:1352(A)(17). An "[e]nterprise" is defined as "any individual, sole proprietorship, partnership, corporation or other legal entity, or any unchartered association, or group of individuals associated in fact and includes unlawful as well as lawful enterprises and governmental as well as other entities." LSA-R.S. 15:1352(B). The term "[p]attern of racketeering activity" means "engaging in at least two incidents of racketeering activity that have the same or similar intents, results, principals, victims, or methods of commission or otherwise are interrelated by distinguishing characteristics and are not isolated incidents, provided at least one of such incidents occurs after August 21, 1992 and that the last of such incidents occurs within five years after a prior incident of racketeering activity." LSA-R.S. 15:1352(C).

         We note that there is limited jurisprudence regarding the Louisiana Racketeering Act. In State v. Touchet 99-1416 (La. App. 3rd Cir. 4/5/00), 759 So. 2d 194');">759 So. 2d 194, the Louisiana Third Circuit Court of Appeal noted that the Louisiana Drug Racketeering Statutes are modeled after the federal "RICO" legislation. In that regard, the court turned to federal interpretations for guidance in explaining the components of the state statutes. The court, in Touchet, 759 So. 2d at 197, stated as follows:

The enterprise is an entity ... a group of persons associated together for a common purpose of engaging in a course of conduct. The pattern of racketeering activity is, on the other hand, a series of criminal acts as defined by the statute. The former is proved by evidence of an ongoing organization, formal or informal, and by evidence that the various associates function as a continuing unit. The latter is proved by evidence of the requisite number of acts of racketeering committed by participants in the enterprise.... The 'enterprise' is not the 'pattern of racketeering activity'; it is an entity separate and apart from the pattern of activity in which it engages. The existence of an enterprise at all times remains a separate element which must be proved by the Government.... [quoting United States v. Turkette, 452 U.S. 576, 583, 101 S.Ct. 2524, 1528-29, 69 L.Ed.2d 246, (1981) ].
[A]n enterprise must be either a legal entity or an association-in-fact. Further, an association-in-fact enterprise must: (1) have an existence separate and apart from the pattern of racketeering, (2) be an ongoing organization, and (3) have members functioning as a continuing unit as shown by a decision-making structure. [Citations omitted.]

         In Touchet the State presented the "enterprise" as the group of co-defendants organized to transport marijuana. The separate "racketeering activity" consisted of the defendant's acts of selling the marijuana. As the court noted, they were essentially the same activity. Thus, the court found that the drug conspiracy was not an enterprise because the organization's existence was for the sole purpose of engaging in racketeering activity (i.e., distribution of controlled substances). On that basis, the court reversed the racketeering conviction therein. Touchet, 759 So. 2d at 199-201.

         In State v. Sarrio, 2001-0543 (La. App. 5th Cir. 11/27/01), 803 So. 2d 212');">803 So. 2d 212, 226-29, writ denied, 2002-0358 (La. 2/7/03), 836 So. 2d 86, the Louisiana Fifth Circuit Court of Appeal upheld a racketeering conviction, finding that the case was factually distinguishable from Touchet. The court noted in Sarrio that, in addition to the testimony of the undercover officer and his surveillance team, which illustrated the various drug transactions, the testimony of the principals to the operation at issue therein gave insight into the workings of the organization itself. Specifically, William Chauncey was a cab driver who became a courier for the head of the operation, Roy Sarrio. Chauncey, who initially transported people for Sarrio, later transported packages of marijuana for him in return for money. The court found that based on the evidence therein, it was clear that there was an enterprise that was separate and apart from the pattern of racketeering activity. Sarrio, 803 So. 2d at 226-27.

         In a discussion comparing Touchet and Sarrio, in Johnson v. Cain, 2008-30582, 347 Fed. Appx. 89, 91 (5th Cir. 2009), cert denied, 559 U.S. 995, 130 S. Ct. 1744, 176 L. Ed. 2d 218 (2010), the United States Court of Appeals for the Fifth Circuit noted that the Sarrio court seemingly applied a more lenient interpretation of the law. Specifically, the federal court stated, "Although purporting to apply a 'separate and apart' requirement, the Sarrio court as a practical matter found that the State had proven a violation of the statute even though the enterprise existed for no other purpose than drug dealing." Johnson, 347 Fed. Appx. at 92. The court noted that the Louisiana state courts could have interpreted Louisiana's racketeering statute as not requiring that the enterprise have a purpose separate and apart from the racketeering activity. Johnson, 347 Fed. Appx. at 93. In conducting a de novo review of the defendant's sufficiency of the evidence claim, the district court in Johnson found that the evidence presented by the State supported the jury's finding of guilt under either interpretation (the more lenient Sarrio interpretation or the more stringent Touchet interpretation). Johnson, 347 Fed. Appx. at 92. In affirming the judgment of the district court on a petition for a writ of habeas corpus, the federal appellate court found that the evidence introduced at Johnson's trial indisputably met the more lenient interpretation of an "enterprise." Johnson, 347 Fed. Appx. at 92-93. In the instant case, as further detailed herein, we find that the evidence presented by the State supports the trial court's finding of guilt under either interpretation of Louisiana's racketeering statute.

         Money Laundering

         Louisiana's money laundering statute provides that it is unlawful for any person knowingly to conduct, supervise, or facilitate a financial transaction involving proceeds known to be derived from criminal activity, when the transaction is designed in whole or in part to conceal or disguise the nature, location, source, ownership, or the control of proceeds known to be derived from such violation. LSA-R.S. 14:230(B)(1). Under LSA-R.S. 14:230(A)(4), "[p]roceeds" means "funds acquired or derived directly or indirectly from or produced or realized through an act."

         Because Louisiana's money laundering statute closely resembles 18 U.S.C. § l956(a)(1)(B)(i), the federal jurisprudence interpreting the latter statute is highly instructive. State v. Dudley, 2006-1087 (La. App. 1st Cir. 9/19/07), 984 So. 2d 11, 24, writ not considered, 2008-1285 (La. 11/20/09), 25 So. 3d 783. Under federal law, 18 U.S.C. § l956(a)(1)(B)(i) criminalizes conduct designed to conceal or disguise the source of proceeds of specified unlawful activity even if the defendant does not conceal his own identity in the process. See United States v. Hall, 434 F. 3d 42, 50-51 (1st Cir. 2006). Factors helpful in determining whether a transaction was designed to conceal include: statements by a defendant probative of intent to conceal; unusual secrecy surrounding the transaction; structuring the transaction in a way to avoid attention; depositing illegal profits in the bank account of a legitimate business; highly irregular features of the transaction; using third parties to conceal the real owner; a series of unusual financial moves cumulating in the transaction; or expert testimony on the practices of criminals. United States v. Magluta, 418 F. 3d 1166, 1176 (11th Cir. 2005), cert denied, 548 U.S. 903, 126 S. Ct. 2966, 165 L. Ed. 2d 949 (2006).

         While Louisiana's money laundering statute closely resembles the federal statute, we note that the Louisiana legislature has designated money laundering as a crime of general intent. In contrast, the federal money laundering statute exacts a higher burden of proof by requiring proof that a transaction was conducted with specific intent to promote the carrying on of unlawful activity. State v. Lemoine, 2015-1120 (La. 5/3/17), 222 So. 3d 688');">222 So. 3d 688, 692 (per curiam).

         The Louisiana Supreme Court in Lemoine rejected the notion that the Louisiana money laundering statute is susceptible to the "merger problem[,]" concluding that the statute is not drafted in such a way that the evidence necessary to prove the underlying or primary crime is sufficient to also prove a more serious secondary offense. Lemoine, 222 So. 3d at 693. As the court in Lemoine further noted, money launderers often mix the fruit of their crimes with legitimately-acquired assets, assuming detection of the dirty funds will be more difficult as a result. The Louisiana money laundering statute places no burden on the State to trace dirty money after it has been commingled with clean money. The statute only requires the State to prove that dirty money constituted a portion of the commingled funds that were maintained or deployed for a criminal purpose. Lemoine, 222 So. 3d at 694-95 (further ...


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