United States District Court, E.D. Louisiana
ORDER AND REASONS
ZAINEY, UNITED STATES DISTRICT JUDGE
following motions are before the Court:
to Dismiss Money Laundering Counts 9-22 (Rec. Doc. 126) filed
by defendant Ronald Markham.
for a Bill of Particulars (Rec. Doc. 124) filed by defendant
to Dismiss Counts 2-7 (18 U.S.C. § 1343-Wire Fraud)
(Rec. Doc. 125) filed by defendant Ronald Markham.
to Dismiss Counts 1, 9-18, 21 (Merger) (Rec. Doc. 127) filed
by defendant Ronald Markham.
Ronald Markham has requested oral argument. (Rec. Doc. 128).
The Court is not persuaded, however, that oral argument would
be helpful in light of the issues presented.
reasons that follow, the motions are denied.
December 14, 2017, a grand jury in the Eastern District of
Louisiana indicted Irvin Mayfield and Ronald Markham charging
conspiracy to commit wire fraud, mail fraud, and money
laundering, wire fraud, mail fraud, money laundering, and
obstruction of justice. (CR17-241). As charged in the
indictment, Mayfield founded New Orleans Jazz Orchestra
(“NOJO”) in 2002, and served as its Artistic
Director. NOJO was composed of 18 musicians who routinely
performed and toured, and it employed staff. (Rec. Doc. 78,
Superseding Indictment ¶ 3). Both Mayfield and Markham
received salaries from NOJO. Throughout NOJO's existence
the organization relied heavily on donations and charitable
grants to fund its operations. (Id. ¶ 5). In
February 2011, a significant source of NOJO's funding was
terminated. (Id. ¶ 6).
also served as a board member and later chairman of the board
of the New Orleans Public Library Foundation
(“NOPLF”), a nonprofit that maintained a
significant investment account. Markham also joined the board
and succeeded Mayfield as chair. (Id. ¶¶
8-11). The crux of the complaint is that when the funding for
NOJO dried up, from August 2011 until about November 2013,
Defendants transferred large sums of money from the NOPLF
account and used it to fund NOJO and enrich themselves.
(Id. ¶ 11). The indictment also charges
Defendants with creating false and misleading business
records in order to conceal their scheme from auditors,
investment managers, and other NOPLF board members. A
superseding indictment was returned on June 21, 2018. (Rec.
Doc. 78). A second superseding indictment (the
“SSI”) was returned on December 6, 2018, (Rec.
Doc. 113), and it constitutes the current charging document.
criminal trial in this matter is scheduled to commence on
April 29, 2019.
to Dismiss Money Laundering Counts 9-22 (Rec. Doc.
move to dismiss Count 9 (money laundering conspiracy) of the
SSI and Counts 10-22 (money laundering) of the SSI arguing
that the money laundering statute is unconstitutionally vague
as applied to them. Defendants argue that the statute is
vague as applied to them because it does not provide the
defendant with adequate notice that his conduct is
criminal. Specifically, Defendants argue that the
“derived from” element of the crime provides no
limitation on how attenuated the property can be from the
specified unlawful activity (in this case mail fraud and wire
fraud) before the criminal “taint” is erased. In
other words, how close must the connection be between the
criminal activity and the property arguably derived from the
activity before the statute is triggered? To demonstrate the
attenuation problem in this case, Defendants point out that
six substantive money laundering counts (10-15) have been
charged based on the funds transfers described in Overt Act
42, and that the same money is involved at least four times
in monetary transactions. Defendants point out a similar
issue with money laundering Counts 17-19, which concern the
transfer detailed in Overt Act 46.
criminal law so vague that it fails to give ordinary people
fair notice of the conduct it punishes, or one that is so
standardless that it invites arbitrary enforcement violates
due process. Johnson v. United States, 135 S.Ct.
2551, 2556 (2015) (citing Kolender v. Lawson, 461
U.S. 352, 357-58 (1983)). The prohibition of vagueness in
criminal statutes is “a well-recognized requirement,
consonant alike with ordinary notions of fair play and the
settled rules of law.” Id. (quoting
Connally v. Gen. Constr. Co., 269 U.S. 385, 391
the Court acknowledges that there could be circumstances in
which a money laundering charge presents a vagueness problem
due to attenuation, the Court is not persuaded that the
transactions alleged in this case suffer from that problem.
Simply put, the money laundering charges that target multiple
transactions with the same funds are not so removed from the
specified unlawful activity as to create a vagueness problem.
As the Government points out, the transfers are not
temporally distant from the criminal violations that are
alleged to have generated the property, and there are at most
three separate subsequent transfers involved. It follows then
that as to any “attenuated” transaction, if the
Government proves beyond a reasonable doubt that the
defendant knew that the monetary transaction involved
criminally derived property then per force there is no issue
with notice. In a situation where the attenuation is so
prevalent so as to arguably deprive the defendant of the
knowledge that the funds involved in the transaction were
derived from criminal activity, the Government would most
likely be unable to meet its burden of proof as to knowledge,
which is an essential element of the crime of money
laundering. In other words, in most cases the attenuation
problem is dealt with by holding the Government to its burden
of proof at trial.
Defendants' arguments are more theoretical and cast in
the abstract than as applied to this case-this is
particularly so before the Government has presented its case
at trial. Defendants' motion to dismiss the money
laundering counts is denied because the Court is not