2000 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

9-25-2000

United States v. Bockius

Precedential or Non-Precedential:

Docket 99-1973

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Recommended Citation

"United States v. Bockius" (2000). 2000 Decisions. Paper 204.

http://digitalcommons.law.villanova.edu/thirdcircuit_2000/204
Filed September 25, 2000 

UNITED STATES COURT OF APPEALS 

FOR THE THIRD CIRCUIT 

No. 99-1973 

UNITED STATES OF AMERICA, 

 Appellant 

v. 

DAVID G. BOCKIUS 

On Appeal from the United States District Court 

for the Eastern District of Pennsylvania 

D.C. Criminal No. 97-cr-00250-1 

(Honorable Herbert J. Hutton) 

Argued July 10, 2000 

Before: SCIRICA, ALITO and FUENTES, Circuit Ju dges

(Filed: September 25, 2000) 

 RICHARD W. GOLDBERG, ESQUIRE 

 (ARGUED) 

 WALTER S. BATTY, JR., ESQUIRE 

 Office of United States Attorney 

 615 Chestnut Street, Suite 1250 

 Philadelphia, Pennsylvania 19106 

 Attorneys for Appellant 
 EDWARD C. MEEHAN, JR., 

 ESQUIRE (ARGUED) 

 Hetznecker & Meehan 

 1420 Walnut Street, Suite 911 

 Philadelphia, Pennsylvania 19102 

 Attorney for Appellee 

OPINION OF THE COURT 

SCIRICA, Circuit Judge. 

In this appeal of a criminal sentence, we again address 

the heartland of cases covered by U.S.S.G. S 2S1.1 

(Laundering of Monetary Instruments). 

David G. Bockius pled guilty to wire fraud, foreign

transportation of stolen funds, money laundering and 

forfeiture. Citing United States v. Smith, 186 F.3d 290 (3d 

Cir. 1999), the District Court declined to sentence Bockius 

under the money laundering guideline U.S.S.G. S 2S1.1 

because it believed the S 2S1.1 heartland includes only 

money laundering associated with extensive drug trafficking 

and serious crime. The government appeals, contending the 

District Court misinterpreted Smith and adopted too narrow 

a view of the heartland. Because Smith made clear the 

heartland includes typical money laundering as well as the 

money laundering activities connected with extensive drug 

trafficking and serious crime, we will vacate the sentence 

and remand. 

I 

The facts are undisputed. Bockius was the president and 

one of four principals of Asset Protection Management, an 

insurance brokerage firm in Blue Bell, Pennsylvania, when, 

in the summer of 1995, he stole $600,000 from the 

brokerage and its clients and fled to the Cayman Islands.1 

_________________________________________________________________ 

1. The exact amount is unclear. Bockius' Pre-Sentence Report states "the 

total amount of money taken is this case is approximately $751,444.31." 

P 13. At his original sentencing, the government contended the actual 

loss was $800,000. The District Court sentenced him to pay restitution 

of $581,500. Because the transactions described in record show that 

Bockius took $600,500 from the Asset Protection Management account, 

we will use the figure of $600,000 as an approximation of the "proceeds." 

 2 
Asset Protection Management sold insurance to business 

clients. After collecting its clients' insurance premiums, it 

deposited them in an escrow, or "premium," account for 

payment to the insurance carriers. Most of Asset Protection 

Management's clients pay most of their premiums at the 

end of July. 

On July 31 and August 2, 1995, Bockius wired $220,500 

from the Asset Protection Management escrow "premium" 

account in Pennsylvania to his personal account at 

PaineWebber in New York. He then wired those funds to 

gambling casinos in Atlantic City, New Jersey. Bockius 

traveled to Atlantic City, lost some of the money gambling, 

and carried the rest of the cash back to Pennsylvania. On 

August 10, 1995, Bockius withdrew $380,000 in cash from 

the Asset Protection Management escrow "premium" 

account. 

The next day, traveling under the name Louis Middleton, 

Bockius flew to the Cayman Islands with more than 

$500,000 in cash stashed in secret compartments in his 

suit cases. There, he formed a corporation called Little 

Mermaid Holdings and bought a house in the name of the 

corporation with part of the cash. Bockius intended to 

deposit the rest of the funds in Canadian banks in the 

Cayman Islands in deposits less than $10,000 to avoid 

reporting requirements, but asserts instead he formed a 

partnership with Claudio Helvester who soon stole the rest 

of his money.2 

Asset Protection Management filed for bankruptcy. None 

of the money has been recovered. 

Never far ahead of the authorities, but ostensibly willing 

to cooperate, Bockius turned himself in to the F.B.I. On 

July 16, 1997, Bockius pled guilty to three substantive 

charges: wire fraud, in violation of 18 U.S.C. S 1343; 

transporting the proceeds of fraud and theft between the 

United States and the Cayman Islands, in violation of 18 

U.S.C. S 2314; and money laundering, in violation of 18 

U.S.C. S 1956(a)(2)(B).3 He conceded the stolen money was 

_________________________________________________________________ 

2. Helvester's role is not undisputed. 

3. 18 U.S.C. S 1956(a)(2)(B) provides 

 Whoever transports, transmits, or transfers, or attempts to 

 3 
subject to forfeiture as a result of his money laundering 

under 18 U.S.C. S 982(a) and (b)(1). 

The Pre-Sentence Report calculated Bockius' sentence 

using the money laundering guideline U.S.S.G. S 2S1.1. At 

his sentencing on March 25, 1998, Bockius objected that 

his behavior fell outside the heartland of S 2S1.1. Denying 

his motion for a downward departure, the District Court 

sentenced Bockius to 48 months incarceration followed by 

four years supervised release, restitution of $581,500, and 

a special assessment in the amount of $150. 

No appeal was filed but, on September 24, 1998, having 

retained new counsel, Bockius filed a petition for habeas 

corpus under 28 U.S.C. S 2255 alleging, among other

things, ineffective assistance of counsel for failure to file an 

appeal on the heartland issue. See United States v. Bockius, 

No. 98-CV-5130 (E.D. Pa. June 25, 1999). On the 

recommendation of a Magistrate Judge, Bockius was 

resentenced on November 8, 1999. 

At resentencing, the District Court held, under Smith, 

that Bockius' actions fell outside the heartland of the 

money laundering guideline and declined to sentence him 

under S 2S1.1. Employing the fraud guideline instead, the 

court sentenced Bockius to 36 months incarceration.

_________________________________________________________________ 

 transport, transmit, or transfer a monetary instrument or funds 

 from a place in the United States to or through a place outside the 

 United States or to a place in the United States from or through a 

 place outside the United States . . . (B) knowing that the monetary 

 instrument or funds involved in the transportation, transmission, 

or 

 transfer represent the proceeds of some form of unlawful activity 

 and knowing that such transportation, transmission, or transfer is 

 designed in whole or in part -- 

 (i) to conceal or disguise the nature, the location, the source, 

the 

 ownership, or the control of the proceeds of specified unlawful 

 activity; or 

 (ii) to avoid a transaction reporting requirement under State or 

 Federal law, [commits a criminal offense.] 

 4 
Contending the money laundering guideline is appropriate, 

the government appeals.4 

II 

The District Court had jurisdiction under 28 U.S.C.

S 2255. We have jurisdiction under 28 U.S.C.SS 1291 and 

2253. The government was not required to seek a certificate 

of appealability in bringing its appeal. See Fed. R. App. P. 

22(b)(3); Lambert v. Blackwell, 134 F.3d 506, 512 n.15 (3d 

Cir. 1998). We review the District Court's legal conclusions 

de novo. See United States v. Thomas, 221 F.3d 430, 433- 

34 (3d Cir. 2000). Application of the guidelines is a 

question of law reviewed under a plenary standard. See 

Smith, 186 F.3d at 297. 

III 

After hearing argument on the heartland issue, the 

District Court held: 

 [Smith's] instruction to the district court . . . is best 

 capsulized in page 10, next to the last paragraph there. 

 It says and I quote from the opinion: 

 "To use the money laundering guideline in this 

 routine fraud case would let the tail wag the dog. Strict 

 focus on the technicalities of the sentencing process 

 obscures the over-arching directive to match the 

 guidelines to the offense conduct which formed the 

 basis of the underlying conviction." 

 And they [the Third Circuit Court of Appeals] go on 

 to say: 

 "We are convinced that this case presents one of 

 those anomalies that Congress intended the courts to 

 deal with fairly. To fulfill this obligation--that 

 obligation--we direct the use of the fraud guideline, 

 rather than that for money laundering. Ultimately, we 

 conclude that the sentencing Commission itself, has 

 indicated that the heartland of the United States 

_________________________________________________________________ 

4. The court's decision to resentence Bockius has not been challenged. 

 5 
 Sentencing Guideline Section 2S1.1, is the money- 

 laundering activity connected with extensive drug 

 trafficking and serious crime." 

 And in that case of Smith, I conclude here, that that 

 is not the type of conduct implicated here. 

Tr. of Sentencing, App. 66-67 (quoting Smith, 186 F.3d at 

300). 

The government argues, and Bockius does not dispute, 

that the District Court declined to apply S 2S1.1 because it 

found that Bockius' conduct did not involve drug trafficking 

or serious crime. The government presents three arguments 

for the application of S 2S1.1 in this case: (1) under Smith, 

the heartland of S 2S1.1 includes typical money laundering; 

(2) Smith applies only to "atypical cases" and this is not an 

"atypical" case of money laundering; and (3) Bockius' 

international transportation of one half million dollars of 

embezzled funds is a serious crime. 

Because we agree with the government's first argument, 

we need not reach its other two. The District Court read 

Smith to create a narrower heartland than warranted. Smith 

clearly contemplates applying S 2S1.1 to typical money 

laundering as well as to those activities "connected with 

extensive drug trafficking and serious crime." 5 

_________________________________________________________________ 

5. S 2S1.1. Laundering of Monetary Instruments 

 (a) Base Offense Level: 

 (1) 23, if convicted under 18 U.S.C. SS 1956(a)(1)(A), (a)(2)(A), 

or 

 (a)(3)(A); 

 (2) 20, otherwise. 

 (b) Specific Offense Characteristics 

 (1) If the defendant knew or believed that the funds were the 

 proceeds of an unlawful activity involving the manufacture, 

 importation, or distribution of narcotics or other controlled 

 substances, increase by 3 levels. 

 (2) If the value of the funds exceeded $100,000, increase the 

 offense level as follows . . . . 

 6 
A 

Money Laundering is a criminal offense under 18 U.S.C. 

SS 1956 and 1957. 

 Whoever, knowing that the property involved in a 

 financial transaction represents the proceeds of some 

 form of unlawful activity, conducts or attempts to 

 conduct such a financial transaction which in fact 

 involves the proceeds of specified unlawful activity . . . 

 knowing that the transaction is designed in whole or in 

 part . . . to conceal or disguise the nature, the location, 

 the source, the ownership, or the control of the 

 proceeds of specified unlawful activity, [violates 

 S 1956(a)(1)(B)(i)]. 

Subsections (a)(2)(B), and (a)(3)(B) similarly forbid 

transactions aimed at concealing or disguising proceeds. 

Subsections 1956(a)(1)(A), (a)(2)(A) and (a)(3)(A) prohibit 

promoting criminal activities. 

Congress passed sections 1956 and 1957 as part of the 

Money Laundering Control Act of 1986, Pub. L. No. 99-570, 

100 Stat. 3207 (codified as amended at 18 U.S.C.SS 1956, 

1957), "to `fill the gap in the criminal law with respect to 

the post-crime hiding of ill-gotten gains.' " United States v. 

LeBlanc, 24 F.3d 340, 346 (1st Cir. 1994) (quoting United 

States v. Johnson, 971 F.2d 562, 569 (10th Cir. 1992). 

Undoubtedly, Congress was intent on combating organized 

crime.6 But that was not the sole purpose of the statute.7 

_________________________________________________________________ 

6. See, e.g., 132 Cong. Rec. S9626-04 (Senator Thurman stating 

"[c]reation of a money laundering offense is imperative if our law 

enforcement agencies are to be effective against the organized criminal 

groups which reap profits" through money laundering); id. (Senator 

DeConcini stating "[w]ithout the means to launder money . . . organized 

crime could not flourish as it does now"). 

7. Senator DeConcini went on to observe "Money laundering techniques 

are used by large legitimate businesses as well. The President's 

commission discovered that American corporations, such as Gulf Oil, 

Lockheed Aircraft, and McDonnell Douglas, have engaged in illegal 

money laundering. Each corporation was involved in schemes to make 

illegal payments to foreign government officials in order to win lucrative 

overseas contracts. The broad array of groups participating in money 

laundering illustrates how widespread the problem has become." Id. 

 7 
By its text, S 1956 covers a broad array of behavior. 

Initiating, concluding or participating in the disposition of 

funds with the intent of concealing or disguising the nature 

of the funds or of promoting criminal activity may subject 

a person to prosecution if the funds are derived from any of 

a wide range of criminal activities. See 18 U.S.C. S 1956(c). 

We have previously noted that Congress intended to punish 

this use of criminally derived proceeds separately from and 

in addition to the criminal conduct which produced them. 

See United States v. Conley, 37 F.3d 970, 980 (3d Cir. 1994).8 

In United States v. Smith, we recognized that the 

government's use of the money laundering statutes to 

sustain additional charges in criminal indictments,

combined with the sentencing guidelines' penalties, created 

the possibility that money laundering could become a"dogwagging tail." See 186 F.3d at 300. In Smith, use of the 

money laundering guideline, U.S.S.G. S 2S1.1, rendered a 

base offense level of twenty while use of the fraud guideline, 

U.S.S.G. S 2F1.1, would have rendered a base offense level 

of six. Where the gravamen of the conduct was fraud, we 

stated this disparity obscured "the overarching directive to 

match the guideline to the offense conduct which formed 

the basis of the underlying conviction." Smith, 186 F.3d at 

_________________________________________________________________ 

8. We have held that S 1956's prohibition on laundering proceeds 

obtained from a criminal offense applies only to funds from completed 

offenses, or completed phases of ongoing offenses. See Conley, 37 F.3d 

at 980. We have also held that crime is not "promoted" by depositing 

criminally derived proceeds in a personal account and using the money 

for personal needs. See id. at 979. When funds become "proceeds" and 

when they are used to "promote" may at times be difficult questions. In 

United States v. Paramo, 998 F.2d 1212 (3d Cir. 1993) (cited as 

consistent by Conley, 37 F.3d at 980), we upheld a verdict for violating 

S 1956(a)(1)(A)(i) by cashing checks received through mail fraud. The 

checks were made out to fictitious individuals. Because the violation of 

18 U.S.C. S 1341 was completed when the checks were mailed, we held 

Paramo could reasonably be found to have promoted the antecedent 

fraud by "creating value out of an otherwise unremunerative enterprise." 

Id. at 1218. Therefore, although we have limited the scope of S 1956 to 

the proceeds of completed offenses (or phases of offenses), we have 

construed "promotion" and "completion" broadly. We understand the 

scope of U.S.S.G. S 2S1.1 to be less expansive. 

 8 
300 (quoting United States v. Kuku, 129 F.3d 1435, 1440 

(11th Cir. 1997)). 

As noted in Smith, the Sentencing Commission has 

articulated similar concerns. In 1995, the Sentencing 

Commission concluded money-laundering sentences were 

being imposed for a broader scope of offense conduct than 

originally anticipated. See United States Sentencing 

Commission, Report to the Congress: Sentencing Policy for 

Money Laundering Offenses, including Comments on 

Department of Justice Report at 1, 5 (Sept. 18, 1997) 

("Commission Report"). 

To address what it saw as sentencing disparities, the 

Sentencing Commission proposed amended "guideline 

penalties for money laundering offenses that were more 

proportionate to both the seriousness of the underlying 

criminal conduct . . . and to the nature and seriousness of 

the conduct itself." Id. at 1. But Congress rejected the 

amendments fearing their adoption would send a message 

"that money laundering associated with drug and other 

serious crimes is not viewed as the grave offense it once 

was." H.R. Rep. No. 104-272, at 14-15 (1995), reprinted in 

1995 U.S.C.C.A.N. 335, 348-49. Despite rejecting the 

proposed amendments, Congress recognized "the 

application of the current guidelines to receipt-and-deposit 

cases, as well as to certain other cases that do not involve 

aggravated money laundering activity, may be problematic." 

Id. 

Although Congress did not define "aggravated money 

laundering activity," the Sentencing Commission has

described the guidelines' target conduct succinctly: 

 1) situations in which the `laundered' funds derived 

 from serious underlying criminal conduct such as a 

 significant drug trafficking operation or organized 

 crime; and, 2) situations in which the financial 

 transaction was separate from the underlying crime 

 and was undertaken to either: a) make it appear that 

 the funds were legitimate, or b) promote additional 

 criminal conduct by reinvesting the proceeds in 

 additional criminal conduct. 

Commission Report at 4. 

 9 
Congress also solicited a report from the Department of 

Justice on money laundering enforcement practices. The 

report noted money laundering statutes are not appropriate 

"in cases where the money laundering activity is minimal or 

incidental to the underlying crime," but specifically stated 

the statutes should be used against white collar criminals. 

See Department of Justice Report for the Senate and House 

Judiciary Committees on the Charging and Plea Practices of 

Federal Prosecutors with Respect to the Offense of Money 

Laundering, at 2, 15 (June 17, 1996) (DOJ Report). 

The foregoing discussion reinforces the view that, 

although Congress was concerned the guidelines might be 

too severe in punishing defendants who deposit or 

withdraw the proceeds of their crimes in or from banks, 

S 2S1.1 is intended to apply to defendants who knowingly 

conduct financial transactions apart from an underlying 

criminal offense to conceal that the proceeds involved are 

tainted. We held no differently in Smith. 

B 

Smith held that under Appendix A to the Guidelines 

manual, a sentencing court must engage in a two-step 

inquiry before applying a particular guideline section. 

 1. Does the designated guideline apply or is the 

 conduct "atypical" in comparison to that usually 

 punished by the statute of conviction; and 

 2. If the conduct is "atypical," which guideline is more 

 appropriate? 

Smith, 186 F.3d at 297 (citing United States v. Voss, 956 

F.2d 1007, 1009 (10th Cir. 1992), superseded in part on 

other grounds by amendment to U.S.S.G. S 2D1.1)). 

Atypical money laundering conduct is conduct outside 

the heartland of S 2S1.1. See Smith, 186 F.3d at 297-98. 

When deciding whether to apply the guideline, a court must 

undertake a heartland analysis "identical" to that employed 

when evaluating downward departures under U.S.S.G. Ch. 

1, Pt. A, intro. comment. 4(b). Id. at 298. 

Because at one point in the opinion Smith recited: 

"[u]ltimately, we conclude that the Sentencing Commission 

 10 
itself has indicated that the heartland of U.S.S.G.S 2S1.1 is 

the money laundering activity connected with extensive 

drug trafficking and serious crime," Bockius contends his 

conduct falls outside the heartland of S 2S1.1. Id. at 300. 

This is a misinterpretation of Smith. 

Analyzing the S 2S1.1 heartland, Smith reiterated the 

guideline targets set forth by the Sentencing Commission. 

Id. at 298. Smith also discussed the DOJ report, the 

proposed amendments and Congress's rejection of those 

amendments. See id. at 299. Smith makes clear that a 

court's S 2S1.1 heartland analysis should address whether 

defendants engaged in money laundering in which"the

`laundered' funds derived from serious underlying criminal 

conduct such as a significant drug trafficking operation or 

organized crime' " or in typical money laundering in which 

a defendant knowingly conducted a financial transaction to 

conceal tainted funds or funnel them into additional 

criminal conduct. Id. at 298. 

Smith concluded the defendants should not have been

sentenced under S 2S1.1 because neither the source of the 

funds nor the nature of the money laundering brought the 

defendants' conduct within the heartland of that guideline. 

The defendants "left a paper trail, conduct inconsistent with 

planned concealment"; the "money laundering activity . . . 

was an `incidental by-product' of the kickback scheme" and 

"Smith's disingenuous efforts towards a cover-up[fell] far 

short of the large scale drug money laundering or serious 

crime contemplated by the Sentencing Commission." Id. at 

300. 

Other Courts of Appeals have drawn similar distinctions 

-- establishing the heartland of the money laundering 

guidelines is narrower than the inclusive scope of the 

money laundering statutes but declining to limit the 

guidelines' scope to drug trafficking and organized crime.9 

See United States v. Ross, 210 F.3d 916, 928 (8th Cir. 

2000) (reversing departure but allowing that on remand, 

"court may find Ross' case presents additional unique or 

_________________________________________________________________ 

9. But see United States v. Adams, 74 F.3d 1093, 1101 (11th Cir. 1996) 

(where defendants found guilty of violating 18 U.S.C. S 1956, U.S.S.G. 

S 2S1.1 must be applied). 

 11 
atypical features that take it outside the money laundering 

guideline heartland similar to those in [Smith]"); United 

States v. Prince, 214 F.3d 740, 768 (6th Cir. 2000)

(application of S 2S1.1 proper where defendants attempted 

to conceal proceeds of wire fraud); United States v. Ford, 

184 F.3d 566, 587-88 (6th Cir. 1999) (affirming refusal to 

depart from U.S.S.G. S 2S1.2 but noting other courts had 

affirmed departures "based in part on the fact that the 

underlying offenses, though literally within the statute, 

were not drug-trafficking, `organized crime',`serious moneylaundering', or `unusually severe fraud,' " and implying 

departure might be appropriate where money laundering 

created no additional societal harm); United States v. 

Woods, 159 F.3d 1132, 1136 (8th Cir. 1998) (affirming 

heartland departure from S 2S1.2 because depositing funds 

in a personal account and obtaining cashier's checks to pay 

personal bills did not constitute "serious money-laundering 

conduct"); United States v. Hemmingson, 157 F.3d 347, 363 

(5th Cir. 1998) (acknowledging S 2S1.1 may be applicable 

outside of organized crime and drug trafficking but

affirming heartland departure because "defendants were 

not seeking to legitimize a stream of illegal income into the 

mainstream economy [nor to launder] . . . drug proceeds, or 

proceeds from some other unlawful activity."); United States 

v. Skinner, 946 F.2d 176, 177 (2d Cir. 1991) (holding 

district court could depart from the guideline whereS 1956 

violation rested solely on payments by drug dealer to her 

supplier because payments did not "conceal a serious 

crime" and promotion of the sale was de minimus (as the 

transaction represented only completion of the sale)); see 

also United States v. Caba, 911 F. Supp. 630, 636 (E.D.N.Y. 

1996), aff 'd, 104 F.3d 354 (table) (if defendant's "actions 

were part of a classic money laundering scheme designed to 

conceal . . . sullied monies, . . . the more punitive money 

laundering guideline would be appropriately used to

determine punishment," but absent such a finding 

downward departure was required where funds were not 

from drug trafficking). 

C 

In view of this discussion, we will vacate Bockius'

sentence and remand for resentencing. After embezzling 

 12 
$600,000, Bockius admitted engaging in several acts to 

conceal the illegal source of the money and his ownership. 

After wiring funds from Asset Protection Management's 

escrow "premium" account to an account in New York, he 

wired them a second time to casinos where he converted 

them into cash. In violation of 18 U.S.C. S 1956(a)(2)(B), he 

secretly carried the cash or proceeds to the Cayman Islands 

where he formed a corporation under a false name, planned 

on depositing the money in bank accounts under different 

names in amounts calculated to avoid reporting 

requirements and bought a house in the name of the Little 

Mermaid corporation. Moreover, he claims the remainder of 

the funds was stolen by a person to whom he planned to 

give his money in an attempt to make it untraceable. These 

actions appear to constitute typical money laundering. 

IV 

As noted in Smith, on remand the District Court should 

engage in a heartland analysis before applying the money 

laundering guideline. Where money laundering is not

"minimal or incidental," and is "separate from the 

underlying crime" and intended to "make it appear that the 

funds were legitimate" or to funnel the money into further 

criminal activities, S 2S1.1 is an applicable guideline. The 

guideline may also be applicable if there is evidence that 

the activities which fulfilled the broad statutory 

requirements for money laundering were connected with 

extensive drug trafficking or other serious crime. Although 

the application of the correct guideline is a question of law, 

the District Court may be required to make factualfindings 

to resolve these underlying issues. 

V 

Here, the District Court found Bockius was not involved 

with extensive drug trafficking nor other serious crime. 

Because the court did not address Bockius' typical money 

laundering, we will vacate the judgment of the District 

Court and remand for resentencing. 

 13 
A True Copy: 

Teste: 

 Clerk of the United States Court of Appeals 

 for the Third Circuit 

 14