The HONORABLE JAMES M. BURNS, United States District *

Judge for the District of Oregon, sitting by

designation.

__________

95-3597 

__________

United States of America, *

*

Appellee, *

* Appeal from the United States

v. * District Court for the

* Eastern District of Missouri

Louis Williams, *

*

Appellant. *

__________

Submitted: April 9, 1996

Filed: June 26, 1996 

__________

Before BEAM and MURPHY, Circuit Judges, and BURNS, District Judge. *

__________

MURPHY, Circuit Judge.

Louis Williams appeals from his convictions for conspiracy, 18 U.S.C.

§ 371, money laundering, 18 U.S.C. § 1956(a), forgery, 18 U.S.C. § 471 and

2, and stealing and receiving, 18 U.S.C. § 641 and 2. He and his

coconspirators were involved in a scheme to profit from 67 blank United

States Treasury checks stolen from a St. Louis postal center. We affirm.

Williams contends on appeal that: (1) the government's crossexamination of him created an improper inference of guilt; (2) the

admission of a coconspirator's statements violated the hearsay rule and his

right to confrontation; (3) there was insufficient evidence to support his

conviction of money laundering; (4) the district
 Williams has also submitted pro se materials which raised 1

additional issues. Since Williams is represented by counsel,

these pro se materials would not normally be considered. See

United States v. Blum, 65 F.3d 1436, 1443 n.2. (8th Cir. 1995),

cert. denied, 116 S.Ct. 1435 (1996). We have reviewed his

submissions, nevertheless, but find in them no meritorious issue

requiring our discussion. 

 Ellis and Reid both entered guilty pleas, received downward 2

departures for cooperation, and filed Rule 35 motions in exchange

for their testimony in Williams' trial.

2

court abused its discretion in giving certain exhibits to the jury during

its deliberation; and (5) the district court erred in giving two jury

instructions on possession of stolen property and the inferences permitted

to be drawn from that possession. 

1

I.

Sometime during the late summer of 1993, Tommie Penson, a St. Louis

resident, learned from a friend, Jobe Reid, that Joe Ellis had access to

blank United States Treasury checks through his employment at the St. Louis

post office. Penson told Reid he could cash the checks in Mexico. Reid

promptly contacted Ellis, who then stole seven blank Treasury checks,

beginning on October 1, 1993. Ellis understood from Reid that he would

receive a portion of the proceeds raised by the checks. 

2

At some point, Penson discussed the Treasury checks with Williams,

a longtime associate who lived in Texas. Penson and Williams had done

business before, partly through an entity owned by Penson called the Royal

Oaks Estates. After talking with Penson, Williams recruited a Mexican

citizen, Genaro Alvarez, to cash one of the checks in exchange for part of

the proceeds. Alvarez flew from Texas to Mexico City in October 1993, and

met Maria Nelda San Martin, an associate of Penson and Williams. On

October 29, Alvarez presented a Treasury check made payable to him in the

amount of $1,165,000 at a money exchange house in Mexico
3

City. He received a cashier's check for $50,000 in his name as an advance,

and the check was later paid in full by the Federal Reserve Bank in

Minneapolis, Minnesota. Williams spoke with Penson and told him to have

the "Treasuries" in place in Mexico. Williams then told his girlfriend,

Elena Cantu, that he had to conclude a deal in Mexico, and he arrived on

October 30 in Mexico City, where he met Penson and Nelda. 

During the first week of November 1993, Williams, Penson, and Nelda

agreed on the disbursement of the $1,165,000 check. Penson channeled most

of the funds into a Texas bank account maintained by Nelda's brother, Jose

San Martin. From that account, Penson directed the disbursement of

$400,000 to his St. Louis accounts and $95,000 to Nelda's account in Mexico

City. On behalf of Williams, Penson made a series of wire transfers into

bank accounts maintained by Williams, Elena Cantu, and Williams' ex-wife.

On November 15, 1993, Penson flew back to St. Louis after arranging

for Williams to become a signatory on his Royal Oaks Estates account at the

Banco Mexicano in Mexico City. Penson then transferred $10,000 of the

stolen money from his St. Louis account to the Royal Oaks account the

following day. Penson and Williams communicated some twelve times by phone

and fax during this period.

Prior to Penson's departure from Mexico, he agreed with Williams and

Nelda to obtain more stolen Treasury checks. Penson contacted Reid, who

persuaded Ellis to steal approximately 60 blank checks on November 12,

1993. Nelda received the checks on November 14 and collaborated with

Williams, Penson, and Alvarez to make six of the checks payable to Emilio

Sanchez Martinez in amounts ranging from eight to eleven million dollars,

the proceeds of which they agreed to share. On November 15, Alvarez

unsuccessfully tried to pass two of these checks in Mexico. 

On November 17, 1993, the St. Louis postal center received a
 Penson and Alvarez were convicted in 1994 for their 3

activities; the convictions were affirmed in 1995. United States

v. Penson, 62 F.3d 242 (8th Cir. 1995). Williams was not tried

until July 1995. 

4

copy of one check for $10,000,000. Postal inspectors immediately began an

investigation. They interviewed Alvarez on November 21, who told them

about cashing the $1,165,000 check. Penson was arrested in St. Louis

shortly thereafter on November 24. He told postal inspectors that he had 3

no knowledge of the stolen Treasury checks, and he did not mention his

association with Williams or Nelda. 

Following his arrest, Penson remained in contact with Williams

through his friend, Eddie Walker. Williams, who was staying at Nelda's

residence in Mexico City during November and December 1993, spoke to Penson

and Walker some 90 times. Penson and Williams continued to disburse the

funds from the $1,165,000 check and persuaded Jose San Martin to pay

$12,000 of the stolen money to Penson's wife on December 1, 1993. They

also attempted to cash another stolen check. Williams told Walker in

December 1993 that Penson and Alvarez were his partners in an ongoing

"deal." Around December 20, 1993, Penson had Walker contact Williams in

New York about that deal. At that time, one of the stolen checks in the

amount of $9,980,000 was being processed at the Banco Mexicano's New York

office after having been presented at the bank in Mexico. Williams called

the Banco Mexicano from New York several times, but the check did not

clear. 

Williams was arrested over a year later, on January 9, 1995, as he

attempted to enter the United States in San Diego. He was carrying a check

written to his Mexico City landlord on the Royal Oaks Estates account, a

hotel bill listing him as a representative of Royal Oaks, and other papers

linking him to the conspirators in this case. 
 Rule 801(d)(2)(B) provides that a statement is not hearsay 4

if it is offered against a party and is "a statement of which the

party has manifested an adoption or belief in its truth." 

5

At trial, Williams denied knowledge of, or participation in, any

activity related to the stolen Treasury checks and their proceeds. He was

found guilty on all counts (except one that had been dismissed). Since

most of the issues that Williams raises on appeal pertain to events at

trial, the relevant facts are incorporated in our discussion. 

II.

Williams first argues that the government improperly created an

inference of guilty silence by cross-examining him about his failure to

call Postal Inspector Ted Orona about the Treasury checks. Elena Cantu had

testified at trial that after Penson's arrest she asked Williams to contact

Orona concerning the Treasury checks, but that Williams became upset and

denied knowledge of them. Jose San Martin had also testified that he told

Williams in December 1993 to contact Orona and that Williams said he would.

Orona then testified that he had asked Cantu and San Martin to tell

Williams to call him, but he never did. There was no objection to any of

this testimony.

Later, during his cross-examination, Williams testified that he could

not remember being told to contact Inspector Orona and that he had not

called him. Defense counsel objected to this line of questioning, stating

that: "[Williams] has absolutely no obligation to answer questions, call

an agent, and give statements about some case." The district court

overruled his objection. Williams now asserts that his cross-examination

testimony was improperly admitted as an adoptive admission under

Fed.R.Evid. 801(d)(2)(B) because Orona had not accused him of anything. 4
6

A criminal defendant who takes the stand in his own behalf "cannot

avoid testifying fully." See Jenkins v. Anderson, 447 U.S. 231, 236 n.3

(1980). Once the choice to testify is made, "[t]he interests of the other

party and regard for the function of the courts of justice to ascertain the

truth become relevant . . . ." Id. at 238. Here, Williams testified that

he did not conspire with Penson to cash stolen treasury checks and that his

presence in New York during the time a stolen check was being processed was

merely coincidental. The government's questioning on cross-examination

about Williams' alleged failure to call Inspector Orona was related to his

denial on direct examination of any involvement in a conspiracy or attempt

to conceal a conspiracy. The prosecution thus "did no more than utilize

the traditional truth-testing devices of the adversary process." Id. The

district court did not abuse its discretion in determining the proper scope

of cross-examination. See United States v. NB, 59 F.3d 771, 777 (8th Cir.

1995) (standard of review). 

Williams next contends that certain statements of Penson were

improperly admitted as an exception to the hearsay rule and that this

violated his Sixth Amendment right to confrontation. Following his arrest,

Tommie Penson told investigators that he had funded wire transfers with

money borrowed from an unidentified source, that he did not know about any

stolen Treasury checks, and that he was not in Mexico when the $1,165,000

stolen check had been presented. Penson did not mention Williams or other

conspirators. Although Penson did not testify at trial, his statements

were admitted as those of a coconspirator under Fed.R.Evid. 801(d)(2)(E).

Williams argues that Penson's statements were not made in furtherance of

the conspiracy since he had already been arrested, and that he was

therefore entitled to a cautionary instruction under the Sixth Amendment.

Fed.R.Evid. 801(d)(2)(E) permits the admission, as nonhearsay, of

statements made "by a coconspirator of a party during the course
7

and in furtherance of the conspiracy." Under this rule, the government

must prove, by a preponderance of the evidence, that a conspiracy existed,

that the defendant and declarant were members of the conspiracy, and that

the statements were made during and in furtherance of the conspiracy.

United States v. Lewis, 759 F.2d 1316, 1342 (8th Cir.), cert. denied sub

nom. Milburn v. United States, 474 U.S. 994 (1985). The district court's

preliminary factual determinations regarding these elements are reviewed

for clear error. United States v. Alonzo, 991 F.2d 1422, 1425 (8th Cir.

1993). 

The arrest of one coconspirator does not necessarily terminate the

conspiracy. United States v. Smith, 600 F.2d 149, 153 (8th Cir. 1979)

(citation omitted). Rather, a conspiracy is presumed to exist until there

has been an affirmative showing that it has been terminated so long as

there is "a continuity of purpose and a continued performance of acts."

Lewis, 759 F.2d at 1343. 

Statements made during the concealment phase of the conspiracy may

also be admissible under Rule 801(d)(2)(E). Id. In making this

determination, courts must be careful to ensure that the statements

occurred during an ongoing conspiracy and were made in furtherance of it.

Id. A conspiracy is ongoing where "acts of concealment were undertaken to

preserve the conspiracy and foil attempts at detection." Id. Such a case

generally exists where the conspiracy is a continuing arrangement with a

series of objectives, and concealment is essential to and in furtherance

of the survival of its operation. Id. Post-arrest confessions or

statements incriminating others by one coconspirator are generally not made

in furtherance of a conspiracy. See Alonzo, 991 F.2d at 1425-26

(coconspirator's in-custody identification of cocaine source not admissible

against other conspirators under Rule 801(d)(2)(E)). 

 

The purposes of the charged conspiracy in this case included
 Even if Penson's statements were hearsay, their admission 5

would have been harmless error in light of all the evidence. See

Alonzo, 991 F.2d at 1427 n.7. The statements did not implicate

Williams or acknowledge any criminal activity. A number of 

witnesses testified during the seven day trial about Williams'

participation in the conspiracy, and the government introduced

more than eighty exhibits. 

8

the theft, receipt, forgery, and concealment of U.S. Treasury checks and

the receipt and concealment of fraudulently obtained money. Williams was

also charged with being a fugitive and communicating with other

conspirators in an effort to conceal his involvement in the conspiracy and

avoid detection by law enforcement authorities. Although Penson's

statements to authorities were made after his arrest in November 1993, he

did not confess to stealing the checks or to a conspiracy, nor did he

incriminate any of his fellow conspirators. Rather, his denial of

knowledge of the checks and his failure to mention Williams or other

conspirators enabled the coconspirators to continue to pursue their common

objectives. For example, on December 1, 1993, Penson and Williams

persuaded Jose San Martin to pay $12,000 of the stolen funds to Penson's

wife in an effort to conceal the money. Williams also attempted to cash

a stolen Treasury check in New York in the amount of $9,980,000 nearly

three weeks after Penson's arrest, and Williams told one of Penson's

associates that Penson and Alvarez were also involved in that deal. 

These actions demonstrate that the conspiracy was continuing to

function actively at the time of Penson's statements, and that the

statements were made in furtherance of the conspiracy's objectives to

profit from the stolen checks and continue functioning without discovery.

See Lewis, 759 F.2d at 1343; Smith, 600 F.2d at 153. The district court

did not err in admitting the challenged statements pursuant to Rule

801(d)(2)(E), and Williams' Sixth Amendment right of confrontation was not

violated. See Bourjaily v. U.S., 483 U.S. 171, 182-85 (1987)

5

(Confrontation
9

Clause not violated if evidence falls within coconspirator exception to the

hearsay rule); United States v. Morgan, 997 F.2d 433, 437 (8th Cir. 1993).

Williams' third argument is that there was insufficient evidence to

support his conviction for money laundering. Count VI of the indictment

charged a violation of 18 U.S.C. § 1956(a) based on a $10,000 wire transfer

on November 16, 1993, from Tommie Penson's bank account in St. Louis to the

Royal Oaks Estates account in Mexico City. Williams acknowledges that he

became a signatory on the Royal Oaks account in November 1993 at Penson's

request. He contends, however, that his mere association with that account

is not enough to prove he aided or abetted Penson in the charged transfer.

A challenge to the sufficiency of the evidence requires a review of

the evidence in the light most favorable to the verdict. United States v.

Jenkins, 78 F.3d 1283, 1287 (8th Cir. 1996). We cannot reverse unless "a

reasonable factfinder must have entertained a reasonable doubt about the

government's proof of one of the offense's essential elements." Id. The

required elements of money laundering in this case are:

(1) that the defendant conducted a financial transaction which

involved the proceeds of unlawful activity; (2) that he knew that the

property involved in the transaction was proceeds of some form of

specified unlawful activity; and (3) that he intended to promote the

carrying on of specified unlawful activity.

Id. (citation omitted). 

 The evidence at trial established that Williams' share of the

proceeds from the $1,165,000 check cashed in October 1993 had been

transferred into his Texas bank account. He expected even bigger proceeds

from the theft of 60 more blank Treasury checks in mid-
10

November 1993, but unlike Maria Nelda, he did not have a bank account in

Mexico to receive any funds. He testified at trial that Penson asked him

around this time to open an account in Mexico so that he "would be able to

some things for him in his absence." Williams obliged by becoming a

signatory on the Royal Oaks Estates account at the Banco Mexicano in Mexico

City. After Penson left Mexico City on November 15, 1993, $10,000 was

transferred the next day from his St. Louis account to the Royal Oaks

Estates account. Penson and Williams communicated some twelve times by

phone and fax during the two days surrounding the transfer. Two months

after this transfer, Williams wrote a check purporting to be drawn on that

account. At the time of his arrest over a year later, Williams was

carrying a check written to his landlord on the Royal Oaks account and a

hotel bill listing him as a representative of Royal Oaks. 

The jury could have reasonably concluded from this evidence that

Williams intentionally and knowingly helped bring about the wire transfer

involving proceeds from the stolen Treasury checks. See id. at 1288.

There was thus sufficient evidence to support each element of the money

laundering offense and the district court did not err in overruling

Williams' motion for a judgment of acquittal. 

Williams' fourth contention is that the district court abused its

discretion in sending to the jury certain exhibits related to the Royal

Oaks Estates account. During the second day of deliberation, the jury

requested a copy of the $10,000 wire transfer to Royal Oaks, the "names of

persons on card file for the Royal Oaks Estate account," and "any records

of money taken out of account after transfer" of the $10,000. Materials

related to the latter two requests were not in evidence as the trial judge

noted on the request form. In response to the first request, the court

sent to the jury all of the documents admitted into evidence which related

to the Royal Oaks account (apparently thirteen). Williams
 Instruction 47 provided that possession includes actual, as 6

well as constructive possession, and also sole as well as joint

possession. Actual possession occurred when a person "knowingly

has direct physical control over a thing," while constructive

possession referred to "power and the intention at a given time

to exercise dominion or control over a thing, either directly or

through another person or persons." 

11

argues that this evidence was not relevant on the money laundering count,

that it was an inappropriate comment on the evidence, a summary of the

prosecution's theory, and a mere suggestion "that these things [must] mean

something." Appellant's Brief at 19. 

Generally, jurors may examine any document properly admitted in

evidence. United States v. DeCoito, 764 F.2d 690, 695 (8th Cir. 1985).

The trial court has "considerable discretion" to send exhibits to the jury

during its deliberation, and the court's determination will not be reversed

on appeal unless it has abused its discretion. United States v. Venerable,

807 F.2d 745, 747 (8th Cir. 1986); United States v. Robinson, 774 F.2d 261,

275 (8th Cir. 1985). 

It was not an abuse of discretion to send these exhibits into the

jury. All of the requested items pertained to the Royal Oaks Estates

account, and all of the documents concerning that account were sent back

without comment on the evidence. Each document was properly admitted in

evidence, and the court appropriately exercised its discretion in

responding to the jury request. See DeCoito, 764 F.2d at 695. 

 

Finally, Williams asserts that the district court erred in overruling

his objections to two jury instructions on possession of stolen property.

Instruction 47 defined actual, constructive, and joint possession, and

6

instruction 46 provided that, if the jury found beyond a reasonable doubt

that Williams' possessed the stolen Treasury checks or government money,

it could infer that the property was stolen and that he "participated in

some way in the
12

theft of the property." Williams claims that he was only charged with

stealing the proceeds from the checks, not the actual checks. He therefore

argues that instruction 47 impermissibly allowed the jury to infer that he

constructively possessed the checks, and that instruction 46 allowed the

jury to infer that he was guilty of stealing the checks.

So long as an instruction correctly states the law, and relates to

issues in the case and facts developed by the evidence, it is not

erroneous. United States v. Nazarenus, 983 F.2d 1480, 1487 (8th Cir.

1993). Both instructions correctly stated the law. See United States v.

Ali, 63 F.3d 710, 716 (8th Cir. 1995) (upholding similar instruction on

definition of possession); United States v. Clark, 45 F.3d 1247, 1250 (8th

Cir. 1995) (upholding similar instruction on inferences to be drawn from

possession of stolen property). The issues and evidence also warranted the

giving of these instructions. Contrary to Williams' contention, his

alleged participation was not limited to stealing the proceeds. He was

also charged in Count I with causing blank Treasury checks to be stolen and

forged. Ample testimony and documents indicated Williams possessed the

stolen checks and proceeds, and participated in their theft and forgery.

Both instructions were therefore well within the district court's

discretion. See Nazarenus, 983 F.2d at 1487. 

For the reasons stated above, the judgment in Williams' case is

affirmed. 

A true copy.

 Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.