United States Court of Appeals,

Eleventh Circuit.

No. 94-8239

Non-Argument Calendar.

UNITED STATES of America, Plaintiff-Appellee,

v.

Rodger Dale JENKINS; Ricky Edward Dyer, Defendants-Appellants.

July 19, 1995.

Appeals from the United States District Court for the Northern

District of Georgia. (No. 4:93-00003-CR-01-HLM), Harold L. Murphy,

Judge.

Before TJOFLAT, Chief Judge, KRAVITCH and ANDERSON, Circuit Judges.

PER CURIAM:

In this case, which arose out of an elaborate kickback scheme,

appellants were convicted on multiple counts of transporting stolen

and fraudulent securities in interstate commerce, of conspiring to

do so, and of engaging in money laundering. Appellant Dyer

challenges his convictions and sentences. Appellant Jenkins

challenges only his sentences.

Appellant Dyer contends that the district court erred: (1) in

denying his mid-trial motion to dismiss the indictment; (2) in

refusing to instruct the jury concerning the Government's alleged

destruction of evidence; and (3) in the comments it made (without

defense objection) in the presence of the jury in response to an

inappropriate argument Dyer's attorney was making to the jury.

Dyer's contentions are patently meritless; we therefore affirm his

convictions.

 Appellants argue that their sentences should be set aside for
two reasons. First, that the district court erred in declining to

group together counts 2-8 and 9-11. We are not persuaded.

The offenses charged in counts 2-8 and 9-11 were appropriately

grouped separately because transporting stolen goods (counts 2-8)

and engaging in illegal monetary transactions (counts 9-11) are not

the same type of offense or closely related under the facts.

First, the victims differed: the counts 2-8 victim is World

Carpet; the counts 9-11 victim is society. Second, different

conduct is criminalized: the elements of interstate transportation

of stolen securities or fraudulently taken goods differ from the

elements of money laundering. Third, the offense level for counts

2-8 does not determine the offense level for counts 9-11. Among

other things, the separate guidelines applicable to these two

groups of counts measure different harms (in addition to different

conduct). In sum, appellants' first argument is meritless.

 We are persuaded, however, by appellants' second argument

that the district court, in determining that the value of the funds

involved in counts 9-11 totalled more than $100,000, erred in

including kickbacks of less than $10,000. Each of those counts

charged a violation of 18 U.S.C. § 1957 and involved a check for

more than $10,000 that Jenkins caused Excaliber to issue to Data

Services and Supply (the entity Dyer established to launder the

kickbacks) in payment of a false invoice. Section 1957 is directed

at a person who "knowingly engages or attempts to engage in a

monetary transaction in criminally derived property that is of a

value greater than $10,000...." It is unclear whether section 1957

applies only to single transactions exceeding $10,000 or includes
a series of transactions that total more than $10,000. If the

former, the kickbacks that were less than $10,000 are not illegal,

and the court erred in considering them in calculating the amount

of the funds involved. When, as here, "a criminal statute is

ambiguous in its application to certain conduct, the rule of lenity

requires it to be construed narrowly." United States v. McLemore,

28 F.3d 1160, 1165 (11th Cir.1994). We therefore conclude that the

court erred in including in its calculation the transactions not in

excess of $10,000, and that the case must be remanded for

resentencing.

AFFIRMED, in part; VACATED, in part, and REMANDED.