                              Supreme Court of Louisiana
FOR IMMEDIATE NEWS RELEASE                                         NEWS RELEASE #026

FROM: CLERK OF SUPREME COURT OF LOUISIANA

The Opinions handed down on the 3rd day of May, 2017, are as follows:



PER CURIAM(S):


2015-K-1120       STATE OF LOUISIANA v. MARTIN G. LEMOINE (Parish of Pointe Coupee)

                  Judge James T. Genovese, assigned as Justice ad hoc, sitting for
                  Knoll, J. for oral argument. He now sits as an elected Justice at
                  the time this opinion is rendered.

                  For the foregoing reasons, jurors rationally found that defendant
                  knowingly gave, transferred, maintained an interest in, and/or
                  otherwise made available things of value which he knew to be for
                  the purpose of committing or furthering the commission of the
                  criminal overbilling scheme. We therefore reverse and vacate the
                  First Circuit's ruling and remand to that court for consideration
                  of the two remaining grounds in defendant's motion for post-
                  judgment verdict of acquittal.
                  REVERSED AND REMANDED.

                  CRICHTON, J., dissents and assigns reasons.
                  GENOVESE, J., dissents for the reasons assigned by J. Crichton.




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03/03/2017
                         SUPREME COURT OF LOUISIANA

                                       No. 2015-K-1120

                                 STATE OF LOUISIANA

                                            VERSUS

                                  MARTIN G. LEMOINE

         ON WRIT OF CERTIORARI TO THE COURT OF APPEAL,
             FIRST CIRCUIT, PARISH OF POINTE COUPEE


Per Curiam∗

       We granted writs to examine whether the court of appeal correctly found the

evidence insufficient to support the jury’s determination that defendant committed

money laundering pursuant to R.S. 14:230(B)(2), in conjunction with his scheme

to fraudulently overbill Union Pacific Railroad (hereinafter “Union Pacific”) for

diesel fuel. We find that the jury rationally concluded that defendant knowingly

gave, transferred, maintained an interest in, and/or otherwise made available things

of value which he knew to be for the purpose of committing or furthering the

commission of the criminal overbilling scheme. We therefore vacate the First

Circuit’s ruling and remand to the court of appeal for consideration of the two

remaining grounds in the motion for post-judgment verdict of acquittal. 1

       After the trial in this matter, jurors returned a unanimous verdict finding

defendant guilty as charged of money laundering, pursuant to R.S. 14:230(B)(2), in

the amount of $20,001. Defendant filed a motion for post-verdict judgment of

acquittal, contending the evidence was insufficient to support the verdict because:
∗Judge James T. Genovese, assigned as Justice ad hoc, sitting for Knoll, J. for oral argument. He
now sits as an elected Justice at the time this opinion is rendered.

1 As the First Circuit framed the scope of its decision: “We agree with the defendant regarding
the second issue. The evidence as a matter of law was insufficient to convict because the State
failed to prove every element of the offense. Specifically, the State failed to prove the defendant
knowingly acted in a way for the purpose of committing or furthering the commission of any
criminal activity. Because the foregoing analysis disposes of the sufficiency issue in its entirety,
we do not address the other arguments raised by the defendant.” Lemoine, 14-1158, p. 11, 174
So.3d at 38.
                                                 1
(1) the state failed to prove that any fraudulent invoices were sent to Union Pacific

during the 46-day period charged; (2) the state failed to prove that defendant acted

for the purpose of committing or furthering the commission of any criminal

activity; and (3), in the alternative, the state had only proven misdemeanor grade

money laundering because the “things of value” were checks, rather than cash. The

trial court granted the motion on all three grounds, after which a divided First

Circuit panel affirmed. State v. Lemoine, 14-1158 (La. App. 1 Cir. 5/6/15), 174

So.3d 31 (Welch, J., dissenting with reasons).

       A motion for post-verdict judgment of acquittal shall be granted only if the

evidence viewed in a light most favorable to the state does not reasonably permit a

finding of guilt. La.C.Cr.P. art. 821(B). A comment to Art. 821 clarifies that the

test to be applied in ruling on such a motion is “whether a reasonable fact finder

must have a reasonable doubt” under the well-settled standard of Jackson v.

Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

       The section of the money laundering statute under which defendant was

found guilty, R.S. 14:230(B)(2), makes it unlawful to knowingly: “Give, sell,

transfer, trade, invest, conceal, transport, maintain an interest in, or otherwise make

available anything of value known to be for the purpose of committing or

furthering the commission of any criminal activity.” 2 The issue before us is

whether, viewing the evidence in the light most favorable to the prosecution, any

rational fact-finder could have found these essential elements proven beyond a

reasonable doubt. See Jackson, 443 U.S. at 319, 99 S.Ct. at 2789.



2 The Louisiana money laundering law prohibits transactions involving the proceeds of criminal
activity. During the 46-day period charged, from January 20, 1998 to March 6, 1998, the
definition of “funds” had been construed as not including checks. Because Union Pacific paid
defendant for the inflated invoices by issuing checks, the state prosecuted him under Section
(B)(2), under the theory that those checks were nonetheless things of value. Notably, in response
to the jurisprudence finding checks not “funds” (nor by extension “proceeds”) for purposes of
R.S. 14:230, see State v. Odom, 07-0516 (La. App. 1 Cir. 7/31/08), 993 So.2d 662, the legislature
expanded the definition of funds to include electronic and written checks, Section (A)(2)(d), and
investment securities and negotiable instruments, Section (A)(2)(e). See 2010 La. Acts. 608.
                                               2
       The evidence at trial showed that defendant, as president of Morel G.

Lemoine Distributors, Inc. (“Morel”), concocted and executed a scheme by which

he routinely defrauded Union Pacific by billing the railroad for more fuel than was

dispensed to it. Union Pacific’s payments of the inflated invoices came in the form

of checks which were deposited into Morel’s business checking account.3 This

scheme flourished during 1995, 1996, and 1997, until Morel’s lead driver, Keith

Glaser, who had been a key figure in inflating the fuel sales at defendant’s

direction, left employment at Morel. Thereafter, the scheme was adjusted to further

obscure the overbilling 4 and, later, to overcome checks and balances Union Pacific

put in place; yet continued nonetheless at defendant’s direction and through the

efforts of his wife, Veronica Lemoine (who scratched out fuel totals on manifests),

and Morel’s truck dispatcher, Rex Averill (who inflated invoices sent to Union

Pacific to add “phantom gallons” not dispensed). Though the scheme ultimately

ceased by March 6, 1998, when Union Pacific’s own fueling facility became

operational, the illegal activity did not come to light until 2002, when Averill was

terminated by Morel, hired by Union Pacific, and disclosed the scheme’s existence

to its long-standing target.

       In affirming the trial court’s post-verdict judgment of acquittal, the First

Circuit noted the dearth of jurisprudence interpreting the money laundering statute5



3 The evidence also showed that defendant directed his employees to dispose of excess fuel
inventory (that is, the gallons that Union Pacific paid for but never received) by making
discounted off-the-books cash sales to farmers.

4 At some point, Morel’s drivers ceased handwriting the gallons of fuel dispensed on their
manifests so that it was no longer necessary to scratch out the discrepancies. Morel also ceased
using field tickets and instead drivers kept track of gallons dispensed on scrap paper, which were
discarded after the inflated invoices were generated.

5 Aside from this case, there are only two appellate decisions addressing R.S. 14:230. The case of
State v. Dudley, 06-1087 (La. App. 1 Cir. 9/19/07), 984 So.2d 11 involved laundering by
concealment and is therefore inapposite here; in State v. Odom, supra, the First Circuit
considered whether checks amounted to “proceeds” as envisioned in R.S. 14:230 subsections
other than (B)(2). Notably, the First Circuit in Odom took the opposite view of the similarities
(or lack thereof) between the state and federal money laundering laws, observing in part:


                                                3
and, having perceived similarities between R.S. 14:230 and the federal money

laundering law, see 18 U.S.C.A. § 1956, the First Circuit majority analogized to

federal money laundering jurisprudence6 before ultimately concluding that the trial

court correctly granted an acquittal. See Lemoine, 14-1158, pp. 11, 13–25, 174

So.3d at 38–47.

       The First Circuit majority erred to the extent it conflated the federal law and

related jurisprudence with the Louisiana statute at issue. The Louisiana legislature

has designated money laundering as a crime of “general intent.” 7 In contrast, the

federal money laundering statute exacts a higher burden of proof by requiring that

a transaction was conducted with specific intent to promote the carrying on of



       We reject the argument that the federal statute offers guidance to determine the
       issue presented. . . . Our state statute is obviously not as broad as the federal
       statute. [And because] the federal statute predates the enactment of this state’s
       statute in 1994, [] if the legislature had intended to include the more expansive
       definitions, it could have done so. A criminal statute must be given a genuine
       construction consistent with the plain meaning of the language in light of its
       context and with reference to the purpose of the provision. La. R.S. 14:3.

Odom, 07-0516, p. 11, 993 So.2d at 671. Thus, in contrast with the First Circuit majority here,
the court in Odom adopted a view more compatible with our view and with Judge Welch’s
dissent here, emphasizing the substantial differences between the state and federal laws. Cf.
Lemoine, 14-1158, p. 12, 174 So.3d at 55 (“Essentially, the majority reasons that La. R.S.
14:230(B)(2) is similar to 18 USCA 1956 A(a)A(i); therefore, we should look to federal
jurisprudence to get the proper [perspective] on Louisiana Law, although it concedes that the
statutes differs on the intent element, i.e., state law requires general intent whereas federal law
required specific intent. However, we do not need to resolve this case by resorting to federal
jurisprudence, but rather, by evaluating the language of the statute itself and its legislative
intent.”) (Welch, J., dissenting).

6 In particular, the First Circuit majority equated the requirement of Section (B)(2) that a
defendant engage in an enumerated act with something of value “for the purpose of committing
or furthering the commission of any criminal act” with the federal prohibition against using
criminal proceeds “with the intent to promote the carrying on of specified unlawful activity,”
(see § 1956(a)(1)(A)(i)), which is known as the “promotion” method of money laundering (as
opposed to the “concealment” method as provided in § 1956(a)(1)(B)(i))).

7 The Louisiana legislature has declared that, “in the absence of qualifying provisions, the terms
‘intent’ and ‘intentional’ have reference to ‘general criminal intent.’” R.S. 14:11. Because the
statute here bears no qualifiers, but rather makes it unlawful to “knowingly” do any of the
enumerated acts, defendant was prosecuted for and found guilty of a general intent crime. Cf.
State v. Bernard, 441 So.2d 817, 820 (La. App. 3 Cir. 12/14/83) (“In spite of the words that ‘it
shall be unlawful for any person knowingly or intentionally ...’ to do the prohibited acts, the
statute requires no more than general criminal intent. A distribution offense is a crime requiring
only general criminal intent. Such intent is established by mere proof of voluntary distribution.”)
(citing R.S. 14:11 and State v. Banks, 307 So.2d 594 (La. 1975), writ denied, 445 So.2d 439 (La.
1984)).

                                                4
unlawful activity. 8 In this regard, as Judge Welch’s dissent observed, the majority

overstated any similarities between the state and federal provisions. See Lemoine,

14-1158, pp. 4–5, 174 So.3d at 51 (Welch, J., dissenting).

       The First Circuit majority further blurred the lines between the state and

federal statutes, and their various subsections, when it imported a requirement that

the state must prove that the defendant here specifically sought to conceal his ill-

gotten gains. Though concealment is among the several prohibited acts listed in

Section (B)(2), it is but one way in which this particular method of money

laundering may be committed. The act of concealing proceeds of criminal activity

is also found within other subsections of the Louisiana statute and is likewise a

separate means of establishing money laundering under federal law. See R.S.

14:230(B)(1) and (B)(5); 18 U.S.C. § 1956(a)(1)(B)(i).

       We are also unpersuaded by the First Circuit majority’s view that the

Louisiana money laundering statute is susceptible to the “merger problem;” a

concept according to which a statute is drafted in such a way that the evidence

necessary to prove the underlying or primary crime (here, theft from Union

Pacific) is sufficient to also prove a more serious secondary offense (here, money

laundering). Evidence of defendant’s fraudulent billing alone, i.e., the thefts for

which he was not prosecuted, could not, without more, serve as a basis for a money

laundering prosecution. Rather, Section (B)(2) of the money laundering statute

applies here because the evidence shows, not only that defendant repeatedly stole

from Union Pacific, but that he was depositing those ill-gotten gains into his

business account, in which he maintained an interest and from which he routinely

transferred money to perpetuate and further his business operations, which


8 See 18 U.S.C. § 1956(a)(1)(A)(i) (“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 with the intent to promote the carrying on of specified unlawful activity [shall be
punished for money laundering].”).
                                              5
functions involved the recurring thefts. Put another way, this is not a “garden

variety” theft case, as defendant asks us to find, but rather, in light of the use of

stolen money to finance future thefts, a prototypical money laundering case.

       Moreover, related concerns that Section (B)(2) is open-ended, because it

applies to “anything of value,” overlook the purpose of the money laundering

statute, which is not to enable prosecutors to latch onto most any crime and, on a

whim, elevate the charges to the offense of money laundering, but rather as the

statute’s title announces, to prohibit “transactions involving proceeds of criminal

activity.” See R.S. 14:230.9 For this reason, defendant was subject to prosecution

for and ultimately found guilty of the more serious offense of money laundering.10

See Lemoine, 14-1158, pp. 7–8, 174 So.3d at 52–53 (Welch, J., dissenting) (“It sets

a dangerous precedent to judicially legislate in accordance with federal law and

federal jurisprudence without attempting to ascertain the Louisiana legislative

intent. . . . The clear legislative intent was to prohibit transactions involving the

proceeds of criminal activity.”).

       Setting aside issues of interpretation, we turn now to the sufficiency of the

evidence and conclude that the First Circuit and trial court erred in finding that the

state failed to prove defendant acted for the purpose of committing or furthering

the commission of any criminal activity.



9 Notably, though the title of an act is not a part of the statute, it can be used to resolve doubt as
to legislative intent as to a specific provision. See, e.g., State v. Williams, 10-1514, p. 7 (La.
3/15/11), 60 So.3d 1189, 1192; Authement v. Shappert Engineering, 02-1631, p. 8 (La. 2003),
840 So.2d 1181, 1186 (title of an act “may be instructive in determining legislative intent”);
State v. Madere, 352 So.2d 666, 668 (La. 1977) (same); see also Schimpf v. Thomas, 204 La.
541, 559, 15 So.2d 880, 886 (1943) (“A title is no part of a statute, but it may be considered in
determining the legislative intent where doubt exists.”). Here, simply revisiting the statute’s title
settles any doubt generated by use of the phrase “anything of value” to describe thing(s) being
laundered in a Section (B)(2) case. Cf. Williams, 10-1514, p. 8, 60 So.3d at 1193.

10 Under the law at the time of the instant offense, defendant would have faced up to 10 years
imprisonment (with or without hard labor) for theft of $500 or more, plus a fine of up to $3,000.
Under R.S. 14:230(E)(3), however, based the evidence that he laundered at least $20,000 (but
less than $100,000), defendant faced a sentence of between two and 20 years imprisonment at
hard labor, plus a fine of up to $20,000.


                                                  6
       First, the state was not required to prove that any actual tainted or “dirty”11

dollars were used during the charged period. Defendant contends that “because

money is fungible and the checks from the railroad commingled [with] legitimate

payments,” the state was required to show that “the ‘dirty’ portion of the money

was necessarily used for the criminal purpose.” In defendant’s appreciation, this

Court should adopt what he sees as the preferred approach when funds have been

commingled in a money laundering case, which is to require proof that the

expenditures from the commingled account exceeded the amount of clean money

therein. In advocating for this approach, he points to a case from the Federal Fifth

Circuit in which that standard was applied. See United States v. Loe, 248 F.3d 449,

466–67 (5th Cir. 2001). 12

       After careful consideration, we find that the Louisiana money laundering

law places no such burden on the state to trace dirty money after it has been

commingled with clean money. Money launderers often mix the fruit of their

crimes with legitimately-acquired assets, assuming detection of the dirty funds will

be more difficult as a result. Mindful of this reality, courts have found that

commingling can itself be evidence of money laundering13 and have found that the

purpose of money laundering statutes indicates direct tracing is not required. See,

e.g., United States v. Ward, 197 F.3d 1076, 1082–83 (11th Cir. 2000) (requiring

11 As used in the court below, the ill-gotten or tainted money at issue in a money laundering case
is often referred to colloquially as “dirty” money. We use this term here in keeping with legal
nomenclature. See Lemoine, 14-1158, p. 23, 174 So.3d at 46 (citing federal law); see also, e.g.,
United States v. Santos, 553 U.S. 507, 536, 128 S.Ct. 2020, 2038, 170 L.Ed.2d 912 (2008);
People v. Gutman, 959 N.E.2d 621, 632 (Ill. 2011).

12 As discussed below, see n.14, the case of Loe was not a money laundering case under the same
statute the First Circuit majority found analogous here, 18 U.S.C. § 1956, but rather a
prosecution for engaging in illegal transactions brought under the distinct provisions of § 1957,
which have been distinguished and treated differently as to the prosecution’s burden of proof.

13See, e.g., United States v. Phythian, 529 F.3d 807, 813 (8th Cir. 2008) (“Where a defendant
commingles illegal proceeds with the identity or the funds of a legitimate and usually preexisting
business . . . [s]uch commingling effectively conceals the nature, source, ownership, and/or
control of the unlawful proceeds”) (citation and quotation marks omitted); United States v.
Sutera, 933 F.2d 641, 648 (8th Cir. 1991) (tainted funds “might have been better hidden if [they]
had been mixed with [legitimate] receipts”).


                                                7
prosecution to “trace the origins of the funds and ascertain ‘exactly which funds

were used for what transaction”’ is unnecessary and contrary to congressional

intent).14 We agree that requiring the state to trace dirty money once it has been

commingled would be inconsistent with the legislative intent of the money

laundering law and would serve only to incentivize criminals’ efforts to obscure

ill-gotten gains. Thus, at least in a money laundering case, the law only requires the

state to prove that dirty money constituted a portion of the commingled funds that

were maintained or deployed for a criminal purpose. 15 Accordingly, even accepting

that the evidence in this case showed the dirty money made up less than six percent

of the balance of defendant’s business account, the state carried its burden of proof

in this regard.




14 We note that 18 U.S.C. § 1956 money laundering prosecutions and § 1957 prohibited
monetary transaction prosecutions have been treated differently with regard to the government’s
burden of proof regarding commingling. While there is consensus that § 1956 cases do not
require the prosecution to trace dirty funds, there has been disagreement in § 1957 cases. See
United States v. Rutgard, 116 F.3d 1270, 1292 (9th Cir. 1997) (“[The fungibility of money
destroys the specific identity of any particular dollar and makes commingling an obvious way to
hide criminal funds.] If § 1956 required tracing of specific funds, it could be wholly frustrated by
commingling. . . . Neither the same reasoning nor the same language is present in § 1957.”). In
any event, a majority of circuits has found that the government is not required to trace
criminally-derived funds once they have been put into commingled accounts. For an expanded
discussion, see Joseph R. Miller, Federal Money Laundering Crimes—Should Direct Tracing of
Funds Be Required?, 90 Ky. L.J. 441, 449 (2002).

15 See United States v. Nickson, 127 Fed. Appx. 770, 773 (6th Cir. 2005) (“[T]he government
need not trace funds garnered illegally to their use in a money-laundering scheme on a dollar-for-
dollar basis on the theory that money-launderers would be permitted to evade sanctions
by commingling illegal assets with legitimate earnings.”); United States v. Huber, 404 F.3d
1047, 1058 (8th Cir. 2005) (“The presence of legitimate funds made the transactions no more
lawful because the transactions still involved the illegitimate proceeds.”); United States v. Baker,
227 F.3d 955, 965–66 (7th Cir. 2000) (government’s evidence need not isolate income from
prostitution from income from legitimate massage services when money from both was
commingled in one account); United States v. Tencer, 107 F.3d 1120, 1131 (5th Cir.
1997) (government must only show that part of the money in the account represented ill-gotten
proceeds); United States v. Jackson, 935 F.2d 832, 840 (7th Cir. 1991) (“[W]e cannot believe
that Congress intended that participants in unlawful activities could prevent their own
convictions under the money laundering statute simply by commingling funds derived from both
“specified unlawful activities” and other activities. Indeed, the commingling in this case is itself
suggestive of a design to hide the source of ill-gotten gains.”); United States v. Bencs, 28 F.3d
555, 562 (6th Cir. 1994) (rejecting argument that the government must trace funds to specific
drug sales to prove money laundering: “Like the Seventh Circuit, we refuse to read the statute in
a manner that would reward the more creative money-launderer by allowing him to escape
liability altogether by commingling assets or otherwise disguising the source of his funds.”).


                                                 8
      In addition, the state was required to show that defendant took a prohibited

action with the account with a known purpose of committing or furthering the

commission of criminal activity. The First Circuit majority conceded the illegality

of defendant’s actions before the charged period because the evidence showed that

defendant paid Keith Glaser to routinely inflate the fuel tickets. But, because the

majority could find no evidence that anything illegal was done with money from

the account during the charged timeframe, it found the state failed to prove its case.

It was material in the First Circuit’s view that while Glaser had been paid extra to

manipulate fuel tickets, Averill only received regular wages; and because Averill,

but not Glaser, was employed during the charged period, defendant had made no

illegitimate use of the money during the critical time.

      We find this conclusion in error in light of the evidence, which jurors were

entitled to credit, that Averill played a pivotal role in the scheme, at defendant’s

direction, both before and during the charged period. It is immaterial that Averill’s

wages did not include “extra” pay to further the scheme because nothing in Section

(B)(2) justifies drawing such a distinction. To the contrary, though Averill was not

paid extra to inflate the numbers, testimony showed that during the 46 days at issue

he was paid on a weekly basis in exchange for performing the duties of his

employment—which included the continued overbilling of Union Pacific. See

Lemoine, 14-1158, p. 9, 174 So.3d at 53–54 (Welch, J., dissenting) (“Averill[’s]

continued employment required that he continue his participation in the over

billing scheme. He was being paid with some portion of the illegally billed money

by the corporation in order to continue the illegal overbilling scheme. No doubt

this was true, because when he was fired in 2002, he reported the scheme.”).

      More broadly, defendant’s assertion that the account was used only for

legitimate business purposes rings hollow in a case in which the evidence showed

that his business was routinely committing theft and thereby operating as a

                                          9
criminal enterprise. It appears plain that when an enterprise engages in crime, its

operating expenses may be reasonably be characterized as illegitimate, i.e., for the

known purpose of furthering the criminal activity.

       Loretta Robillard, whom defendant employed as a bookkeeper from 1995–

2010, including during the charged period, testified that she deposited checks from

Union Pacific into defendant’s checking account at Guaranty Bank, generated

invoices based on the sales numbers Averill logged, and that money in the account

was used to pay the bills and expenses of running the business. She also testified

that she shared invoicing duties with Averill. Averill testified that he worked as a

truck dispatcher for Morel from 1995 until he was terminated in 2002. He

explained that his duties included a variety of tasks, ranging from managerial to

janitorial, and that he did “all the things that [defendant] didn’t wanna do,” to keep

operations going. Averill facilitated the scheme by including “phantom gallons” on

invoices prepared for Union Pacific and Averill’s testimony verified that defendant

knew as much. As part of his work duties, Averill also kept an overage report—for

defendant and with defendant’s knowledge—tracking the number of phantom

gallons for which Union Pacific was being fraudulently billed. Defendant came to

Averill routinely to see “where [they stood] on the overage report,” that is, to

gauge how many gallons they had overbilled. 16 Averill confirmed that the scheme

was ongoing during the charged period, at defendant’s direction, and that Averill

personally generated and sent inflated invoices during that time, and further, that

checks from Union Pacific paying inflated invoices were received during that time.

Averill’s description of the scheme was corroborated by Union Pacific Special




16 Averill also explained the means by which defendant directed him to reduce the excess fuel
inventories that accumulated as a result of Union Pacific not being given all of the gallons they
bought. According to this aspect of the scheme, Averill periodically contacted local farmers and
sold them the excess fuel for cash at a rate of just “a penny a gallon, a penny above cost.” The
cash proceeds of these sales went to defendant.
                                               10
Agent Stephen Paddy, who presented examples of inflated invoices received and

paid by Union Pacific.

      Jurors were entitled to credit this testimony, and to conclude based thereon

that defendant was guilty of laundering money during the charged period. Jurors

were similarly justified in finding, based on the bookkeeper’s testimony, that the

account into which the Union Pacific checks were deposited was the same account

that defendant used to pay Averill’s wages (and other business operating expenses,

including defendant’s own salary), knowing that the business operations would

include continued overbilling of Union Pacific during the charged period. See State

v. Mussall, 523 So.2d 1305, 1310 (La. 1988) (fact-finder makes credibility

determinations and may, within the bounds of rationality, accept or reject the

testimony of any witness; thus, a reviewing court may impinge on the “fact

finder’s discretion only to the extent necessary to guarantee the fundamental due

process of law.”). Based on the evidence presented, jurors rationally found that

defendant knowingly gave, transferred, maintained an interest in, and/or otherwise

made available the value of the checks from Union Pacific with a known purpose

of committing or furthering the commission of the overbilling scheme. The crime

of money laundering is, for all practical purposes, a process by which ill-gotten

gains are commingled with clean funds and used to perpetuate criminal activity.

The notion that the circumstances in this case constitute anything other than money

laundering is plainly belied by the record.

      For the foregoing reasons, jurors rationally found that defendant knowingly

gave, transferred, maintained an interest in, and/or otherwise made available things

of value which he knew to be for the purpose of committing or furthering the

commission of the criminal overbilling scheme. We therefore reverse and vacate

the First Circuit’s ruling and remand to that court for consideration of the two

remaining grounds in defendant’s motion for post-judgment verdict of acquittal.

                                         11
REVERSED AND REMANDED.




                     12
05/03/2017
                      SUPREME COURT OF LOUISIANA

                                 No. 2015-K-1120

                             STATE OF LOUISIANA

                                     VERSUS

                             MARTIN G. LEMOINE

         ON WRIT OF CERTIORARI TO THE COURT OF APPEAL,
             FIRST CIRCUIT, PARISH OF POINTE COUPEE

CRICHTON, J., dissents and assigns reasons:

      I respectfully dissent. To be clear, I believe defendant’s conduct was

wrong—the evidence at trial appears to prove the crime of theft. Nonetheless,

defendant was charged with money laundering under La. R.S. 14:230(B)(2), not

theft under La. R.S. 14:67(A). And because I believe La. R.S. 14:230(B)(2) is

subject to multiple reasonable interpretations, the rule of construction is to resolve

any doubt in favor of lenity. See State v. Freeman, 411 So.2d 1068, 1072 (La.

1982).

      As Justice Scalia—writing for a plurality of the United States Supreme

Court—instructs:

      This venerable rule not only vindicates the fundamental principle that
      no citizen should be held accountable for a violation of a statute
      whose commands are uncertain, or subjected to punishment that is not
      clearly prescribed. It also places the weight of inertia upon the party
      that can best induce [the Legislature] to speak more clearly and keeps
      courts from making criminal law in [the Legislature’s] stead.

United States v. Santos, 553 U.S. 507, 514, 128 S.Ct. 2020, 2025, 170 L.Ed.2d 912

(2008) (applying the rule of lenity to affirm a lower court’s vacating of a money-

laundering conviction). Therefore, I would construe La. R.S. 14:230(B)(2) in a

manner that favors defendant in this case and affirm the lower courts’

determinations that no reasonable juror could find beyond a reasonable doubt that
the State proved this defendant committed the crime of money laundering under

La. R.S. 14:230(B)(2).
05/03/2017

                   SUPREME COURT OF LOUISIANA

                             No. 2015-K-1120

                         STATE OF LOUISIANA

                                 VERSUS

                          MARTIN G. LEMOINE

       ON WRIT OF CERTIORARI TO THE COURT OF APPEAL,
           FIRST CIRCUIT, PARISH OF POINTE COUPEE



GENOVESE, JUSTICE, dissents for the reasons assigned by Justice Crichton.
