### 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), fo rgery, 18 U.S.C. § 471 and 2, and steali ng and receiving, 18 U.S.C. § 641 and 2. He and hi s coconspirators were involved in a scheme to profit from 67 blank Unite d States Treasury check s stolen from a St. Louis postal center. We affirm.

Williams contends on appeal that: (1) the government's cross

examinat ion of him created an improper inference of guilt; (2) th e admission of a coconspirator's statements violated the hearsay rule and hi s right to confrontation; (3) there was insufficie nt 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 disc retion in giving certain exhibits to the jury during its delibe ration; and (5) the district court erred in giving two jur y instructions on possession of stolen property an d 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. Loui s post office. Penson told Reid he could cash the checks in Mexico. Reid prompt ly contacted Ellis, who then stole seven blank Treasury checks , begin ning on October 1, 1993. Ellis understood from Reid that he woul d 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 don e business before, partly through an entity owned by Penson called the Royal Oaks Estates. After talking with Penson, Williams recruited a Mexica n citizen, Genaro Alvarez, to cash one of the chec ks in exchange for part of the proceeds. Alvarez flew from Texas to Mexico City in October 1993, and met Ma ria Nelda San Martin, an associate of Penson and Williams. O n October 29, Alvarez p resented a Treasury check made payable to him in the amount of $1,165,000 at a money exchange house in Mexico

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City. He received a cashier's check for $50,000 in his name as an advance , and the che ck was later paid in full by the Federal Reserve Bank i n 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 th e first week of November 1993, Williams, Penson, and Nelda agreed on the disbursement of the $1,165,000 che ck. Penson channeled most of the funds into a Texas bank account maintaine d by Nelda's brother, Jose San Martin. From that account, Penson directed the disbursement o f $400,000 to his St. Louis accounts and $95,000 to Nelda's account in Mexic o City. On behalf of W illiams, Penson made a series of wire transfers into bank accounts maintai ned by Williams, Elena Cantu, and Williams' ex-wife.

On Novemb er 15, 1993, Penson flew back to St. Louis after arranging for Williams to become a signatory on his Royal Oaks Estates account at th e Banco Mexicano in Mexico City. Penson then transferred $10,000 of th e sto len money from his St. Louis account to the Royal Oaks account th e following day. Penson and Williams communicated some twelve times by phon e and fax during this period.
Prior to Penson's departure from Mex ico, 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. Nel da received the checks on November 14 and collaborated wit h Williams, Penson, and Alvarez to make six of the checks payable to Emilio Sanchez Martinez in a mounts ranging from eight to eleven million dollars, the pr oceeds of which they agreed to share. On November 15, Alvare z 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 inspe ctors immediately began an investigation. They interviewed Alvarez on November 21, who told the m about cash ing the $1,165,000 check. Penson was arrested in St. Loui s 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 hi s association with Williams or Nelda.

Follow ing his arrest, Penson remained in contact with William s through his friend, Eddie Walker. Williams, who was staying at Nelda' s residence in Mexico City during November and December 1993, spoke to Penso n and Walker some 90 ti mes. Penson and Williams continued to disburse the fund s from the $1,165,000 check and persuaded Jose San Martin to pa y $12,000 of the stolen money to Penson's wife on December 1, 1993. The y also attem pted to cash another stolen check. Williams told Walker i n December 1 993 that Penson and Alvarez were his partners in an ongoin g "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 i n Mexico. Williams called the Banco Mexicano from New York several times, but the check did no t clear.

Willia ms was arrested over a year later, on January 9, 1995, as h e attempted to enter the United States in San Diego. He was carrying a chec k written to his Mexico City landlord on the Royal Oaks Estates account, a hotel bill listing him as a representative of Ro yal 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, an y activity related to the stolen Treasury checks a nd their proceeds. He was found gui lty on all counts (except one that had been dismissed). Sinc e most of the issues that Williams raises on appeal pertain to events a t trial, the relevant facts are incorporated in our discussion.

II.

Wil liams first argues that the government improperly created a n inf erence of guilty silence by cross-examining him about his failure t o call Postal Inspector Ted Orona about the Treasury checks. Elena Cantu ha d testified at trial that after Penson's arrest she asked Williams to contac t Orona concerning the Treasury checks, but that Williams became upset and denied knowledge of them. Jose San Martin had a lso testified that he told Williams in December 1993 to contact Orona and that Williams said he would

. Orona the n testified that he had asked Cantu and San Martin to tel l 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 no t called him. Defense counsel objected to this li ne of questioning, stating that: "[Williams] ha s absolutely no obligation to answer questions, call
an agent, and give statements about some case." The district cour t overruled his objecti on. Williams now asserts that his cross-examination testim ony was improperly admitted as an adoptive admission unde r Fed.R.Evid. 801(d)(2)(B) because Orona had not accused him of anything. 4

### 6 A crimi nal defendant who takes the stand in his own behalf "canno t 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 th e truth become relevant . . . ." Id. at 238. Her e, Williams testified that he did not conspire with Penson to cash stolen treasury checks and that hi s presence in New York during the time a stolen check was being processed wa s merel y coincidental. The government's questioning on cross-examinatio n about Williams' alleged failure to call Inspecto r 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 adv ersary process." Id. The district court did not abuse its discretion in determining the proper scop e 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 wer e improperly admitted as an exception to the hearsay rule and that thi s violated his Sixth Amendment right to confrontation. Following his arrest , Tom mie Penson told investigators that he had funded wire transfers wit h money borrowed from an unidentified source, that he did not know about any stolen Treasury check s, and that he was not in Mexico when the $1,165,000 stolen check had been presented. Penson did not mention Williams or other
con spirators. Although Penson did not testify at trial, his statement s were admitted as thos e 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 wa s therefore entitled to a cautionary instruction under the Sixth Amendment.

Fed .R.Evid. 801(d)(2)(E) permits the admission, as nonhearsay, o f statements made "by a coconspirator of a party during the course

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and in furtherance of the conspiracy." Under this rule, the governmen t must prove, by a preponderance of the evidence, that a conspiracy existed, that the defendant an d declarant were members of the conspiracy, and that the sta tements 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. Unite d 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 th e conspiracy. United States v. Smith , 600 F.2d 149, 153 (8th Cir. 1979 ) (citation omitted). Rather, a conspiracy is pre sumed to exist until there has been an affirmative showing that it has been terminated so long a s 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 ma y al so be admissible under Rule 801(d)(2)(E). Id. In making thi s determ ination, courts must be careful to ensure that the statement s occurred during an on going conspiracy and were made in furtherance of it. Id. A conspiracy is ongoing where "acts of conc ealment were undertaken to preserve the conspiracy and foil attempts at det ection." 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 o r statements incriminating others by one coconspirator are generally not mad e in furtherance of a conspiracy. See Alonzo , 991 F.2d at 1425-2 6 (coconspirator's in-custody identification of cocaine source not admissibl e 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 conce alment of fraudulently obtained money. Williams was also c harged with being a fugitive and communicating with othe r conspirators in an effort to conceal his involve ment in the conspiracy and avoid detection by law enforcement authorities. Although Penson' s statements to authori ties were made after his arrest in November 1993, he did not c onfess to stealing the checks or to a conspiracy, nor did h e incrimin ate any of his fellow conspirators. Rather, his denial o f know ledge of the checks and his failure to mention Williams or othe r conspirators enabled the coconspirators to conti nue to pursue their common objectiv es. For example, on December 1, 1993, Penson and William s 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 nearl y thre e weeks after Penson's arrest, and Williams told one of Penson' s associates that Penson and Alvarez were also involved in that deal.

The se actions demonstrate that the conspiracy was continuing t o function actively at the time of Penson's statements, and that th e statem ents were made in furtherance of the conspiracy's objectives t o profit from the stole n 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 Rul e 801(d)(2)(E), and Williams' Sixth Amendment righ t of confrontation was not violate d. 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 th e 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 transfe r
on November 16, 1993, from Tommie Penson's bank account in St. Louis to th e Royal Oaks Estates ac count 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 accoun t is not enough to prove he aided or abetted Penso n in the charged transfer.

A challen ge 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) th at the defendant conducted a financial transaction whic h involved the proceeds of unlawful activity; (2) that he knew th at the prope rty involved in the transaction was proceeds of some form o f specified unlawful activity; and (3) that he intended to promote the carrying on of specified unlawful activity.

Id. (citation omitted).

The e vidence at trial established that Williams' share of th e proceeds from the $1,165,000 check cashed in October 1993 had bee n transferred into his Texas bank account. He exp ected 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 t hings for him in his absence." Williams obliged by becoming a signatory on the Royal Oaks Estates account at the Banco Mexicano in Mexic o City. After Penson left Mexico City on November 15, 1993, $10,000 wa s tra nsferred the next day from his St. Louis account to the Royal Oak s Est ates account. Penson and Williams communicated some twelve times b y phone and fax during the two days surrounding the transfer. Two month s after this transfer, Williams wrote a check purp orting to be drawn on that account. A t the time of his arrest over a year later, Williams wa s 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 tha t Williams intentionall y 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 mone y laundering offense and the district court did not err in overrulin g Williams' motion for a judgment of acquittal.

Williams' fourth contention is that the district court abused it s discretion in sending to the jury certain exhibits related to the Roya l Oaks Estates account. During the second day of deliberation, the jur y 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 e vidence as the trial judge noted o n the request form. In response to the first request, the cour t sent to the jury all of the documents admitted i nto 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 evid ence was not relevant on the money laundering count, that it was an inappropriate comment on the evidence, a summary of th e prosecution's theory, and a mere suggestion "tha t these things [must] mean something." Appellant's Brief at 19. Gen erally, jurors may examine any document properly admitted i n 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 reverse d
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 no t an abuse of discretion to send these exhibits into th e jur y. All of the requested items pertained to the Royal Oaks Estate s account, and all of the documents concerning that account were sent back without comment on the evidence. Each document was properly admitted in evi dence, and the court appropriately exercised its discretion i n responding to the jury request. See DeCoito , 764 F.2d at 695.
Finally, Williams asserts that the district court erred in over ruling his objections to two jury instructions on possession of stolen property. Inst ruction 47 defined actual, constructive, and joint possession, an d 6 instruction 46 provid ed 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 wit h stealing the proceeds from the checks, not the actual checks. He therefor e 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 t o iss ues in the case and facts developed by the evidence, it is no t
erroneous. United States v. Nazarenus , 983 F.2d 1480, 1487 (8th Cir

. 1993). Both instruct ions correctly stated the law. See United States v. Ali , 63 F.3d 710, 716 (8th Cir. 1995) (upholding similar instruction o n definition of possession); United States v. Clark , 45 F.3d 1247, 1250 (8t h Cir. 1995) (upholding similar instruction on inferences to be drawn from possession of stolen property). The issues and evidence also warranted th e giving of these instructions. Contrary to Williams' contention, hi s alleged participation was not limited to stealing the proceeds. He wa s also charged in Count I with causing blank Treasury checks to be stolen an d forged

. Ample testimony and documents indicated Williams possessed th e stolen checks and proceeds, and participated in their theft and forgery. Bot h instructions were therefore well within the district court' s discretion. See Nazarenus , 983 F.2d at 1487.

For the r easons stated above, the judgment in Williams' case i s affirmed.

A true copy.

Attest:

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