                                      __________

                                       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   cross-
examination 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




     *
      The HONORABLE JAMES M. BURNS, United States District
     Judge for the District of Oregon, sitting by
     designation.
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




     1
      Williams has also submitted pro se materials which raised
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.
     2
      Ellis and Reid both entered guilty pleas, received downward
departures for cooperation, and filed Rule 35 motions in exchange
for their testimony in Williams' trial.

                                     2
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




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




     3
      Penson and Alvarez were convicted in 1994 for their
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
        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
                             4
Fed.R.Evid. 801(d)(2)(B) because Orona had not accused him of anything.




        4
      Rule 801(d)(2)(B) provides that a statement is not hearsay
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
     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




                                          6
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




                                            7
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.5         See    Bourjaily       v.   U.S.,   483   U.S.   171,   182-85     (1987)
(Confrontation




        5
      Even if Penson's statements were hearsay, their admission
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
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-




                                     9
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




                                     10
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,6 and
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




        6
      Instruction 47 provided that possession includes actual, as
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
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.




                                           12
