Opinion
The panel unanimously finds this case suitable for decision without oral argument. See Fed. R.App. P. 34(a); 9th Cir. R. 34-4.
Editorial Note:
This opinion appears in the Federal reporter in a table titled "Table of Decisions Without Reported Opinions". (See FI CTA9 Rule 36-3 regarding use of unpublished opinions)
Appeal from the United States District Court for the Central District of California William D. Keller, District Judge, Presiding.
Before HUG, Chief Judge, SCHROEDER and KOZINSKI, Circuit Judges.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir. R. 36-3.
Lawrence J. Arden appeals his conviction and sentence, following a jury trial, for conspiracy (18 U.S.C. § 371), money laundering (18 U.S.C. § 1956(a)(B)(i)), and structuring transactions with domestic financial institutions (31 U.S.C. §§ 5324(3) and 5322). Pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), Arden's counsel submitted a brief stating that he finds no meritorious issues for review. Arden has filed a supplemental pro se brief.
Counsel identifies the following issue for review: Whether there is sufficient evidence to sustain Arden's conviction for conspiracy to launder money, money laundering, and structuring transactions. Because Arden did not move for acquittal at the close of the evidence, we review for plain error. See United States v. Carpenter, 95 F.3d 773, 775 (9th Cir.1996), cert. denied, 519 U.S. 1155, 117 S.Ct. 1094, 137 L.Ed.2d 227 (1997).
At trial, with regard to his conspiracy and underlying money laundering charges, Arden testified that he did not know that the checks at issue represented the proceeds of illegal activities and thus lacked the requisite intent for both charges. However, the jury could have reasonably found his testimony incredible, and instead inferred his guilty knowledge from the circumstantial evidence presented at trial. See United States v. Jackson, 72 F.3d 1370, 1381 (9th Cir.1995) (circumstantial evidence and inferences drawn from it may be sufficient to sustain conviction); see also Carpenter, 95 F.3d at 775 (setting out elements of conspiracy and money laundering).
The same holds true for his conviction for money structuring. While Arden testified that he did not know structuring was unlawful, the jury was free to reject his testimony and instead infer from his conduct that he structured his transactions with the specific intent to "disobey the law." Ratzlaf v. United States, 510 U.S. 135, 141, 114 S.Ct. 655, 126 L.Ed.2d 615 (1994) (explaining intent requirement of structuring statute); Jackson, 72 F.2d at 1381. Accordingly, we discern no plain error regarding the sufficiency of evidence to support Arden's conviction. See Carpenter, 95 F.3d at 775.
In his pro se supplemental brief, Arden contends his conviction for structuring must be reversed because the district court failed to correctly instruct the jury regarding the specific intent requirement. Because the government expressly concedes this issue, we vacate Arden's conviction for structuring transactions with domestic financial institutions and remand for resentencing. Because our independent review of the record pursuant to Penson v. Ohio, 488 U.S. 75, 83, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988) discloses no further issue for review, we affirm his conviction with regard to the remaining counts .
This court expresses no opinion on the actual merits of this claim.
Arden also contends that he was selectively prosecuted for structuring because the government did not indict the financial institutions or their employees. Besides his failure to raise this issue before the district court, Arden's factual allegations fail to state a claim of selective prosecution. See United States v. Armstrong, 517 U.S. 456, 470, 116 S.Ct. 1480, 134 L.Ed.2d 687 (1996) (setting out requirements for prima facie case for selective prosecution).
AFFIRMED in part; VACATED in part and REMANDED FOR RESENTENCING.
In light of our disposition of this appeal, counsel's motion to withdraw as counsel of record is denied.