Moldova, Receiving Stolen Property and Resisting Arrest

After Joyce A. Cappello was convicted of third-degree receiving stolen property in violation of New Jersey Statutes § 2C:20–7 and resisting arrest in violation of New Jersey Statutes § 2C:29–2(a)(1) and sentenced to “three years of probation and restitution in the amount of $13,331.90”, she appealed.  State v. Capello, 2012 WL 2811535 (Superior Court of New Jersey – Appellate Division 2012).

This, according to the appellate court’s opinion, is how the case began:

In 2007, Cappello posted her resume on a career website. . . . [and] received an email from someone calling himself George Hilbert. He represented himself as affiliated with MCM Group (MCM), a company in Washington, D.C. Hilbert told her about a job as a penny shares manager.

Hilbert told her the job would require her to open a bank account, which need not be a business account. MCM would then transfer funds to her account and instruct her how to transfer the funds to others. Cappello would receive a percentage for each transaction she facilitated. She understood she would earn about $3,000 per month.

Cappello received and signed a confidentiality agreement. In contrast to the duties described during email exchanges, the terms of the confidentiality agreement outlined duties that included `consulting potential investors about our investment program’ and `processing orders.

State v. Cappello, supra.

Cappello opened a personal account “in her own name at a local bank”, but instead of using “her own address, she used the business and residential addresses of a friend.”  State v. Cappello, supra. She “completed four transactions for MCM”:

Between November 18, and December 7, 2007, someone made three electronic transfers into Cappello's account: (1) $2,870.30 on November 14, (2) $3,820.60 on November 20, and (3) $8,000 on November 28. At the direction of MCM, Cappello issued four checks drawn on her account to payees located in Moldova.

Those checks, signed by Cappello, were issued as follows: (1) $2,726.30 on November 17, (2) $3,514.16 on November 24, (3) $3,492 on December 3, and (4) $3,600 on December 1. Cappello's bank subsequently became suspicious of the transfers and froze her account.

State v. Cappello, supra.

In November, 2007, East Greenwich Township Police Department Sergeant Charles Barone got a call from Wachovia Bank about “unauthorized transactions in which funds” were “transferred from the account of one of its customers without authorization” and  “wound up in Cappello's account.”  State v. Cappello, supra.  Barone went to the business address Cappello gave her bank when she opened the account, but and found it “belonged to a commercial business with which Cappello had no affiliation.”  State v. Cappello, supra. He then went to the address Cappello had given the bank, “which was her friend's residence.”  State v. Cappello, supra.

Eventually, Barone obtained Cappello’s real address in Gibbstown.  State v. Cappello, supra. Early on June 12, 2008, he went to her home, along with “other members of the East Greenwich Police.” Barone knocked on the door, Cappello opened it and he told her that he had “`a warrant for her arrest’” and that she was under arrest. State v. Cappello, supra.

According to Barone, she “reacted angrily,} mentioning something “`about another case that she was involved in that she thought [he] was there for.’” State v. Cappello, supra. Barone said she “yelled at the officers, saying they did not have the authority to be there.”  State v. Cappello, supra. When Cappello “demanded to see the arrest warrant”, Barone sent an officer to retrieve it. State v. Cappello, supra.

Barone told Cappello to put on her shoes, but she “did not comply.”  State v. Cappello, supra. Instead, she “picked up a large bag and `attempted to push past’ Barone toward the front door.”  State v. Cappello, supra. In so doing, she “bumped into the right side of Barone's body with the left side” of hers.  State v. Cappello, supra.

Barone “responded by attempting to handcuff her, but Cappello pulled away.”  State v. Cappello, supra. While she “continued to struggle with Barone, the other officers returned and assisted Barone in handcuffing her.”  State v. Cappello, supra.

Cappello was subsequently indicted for receiving stolen property and resisting arrest.  State v. Cappello, supra.  The jury convicted her of both crimes and, as noted above, she was sentenced to three years’ probation and ordered to pay restitution of $13,331.90.  State v. Cappello, supra.

Cappello’s first argument on appeal was that her conviction for receiving stolen property was “against the weight of the evidence.”  State v. Cappello, supra.  The Appellate Division began its analysis of that issue by noting that in addressing a weight of the evidence argument, it applies the same standard as a trial judge in ruling on a motion for acquittal at the end of the prosecution’s evidence, i.e., the judge must grant the motion to acquit if “`the evidence is insufficient to warrant a conviction.’” State v. Cappello, supra (quoting New Jersey Rules of Criminal Procedure Rule 3:18-1).

The Appellate Division then explained that New Jersey Statutes § 2C:20–7(a) defines

a receiver of stolen property as one who `knowingly receives or brings into this State movable property of another knowing that it has been stolen, or believing it is probably stolen. . . . ‘Receiving’ means acquiring possession, control or title, or lending on the security of the property.’ The statute creates a presumption of the `requisite knowledge or belief’ for a person who

(1) Is found in possession or control of two or more items of property stolen on two or more separate occasions; or

(2) Has received stolen property in another transaction within the year preceding the transaction charged. . . .

State v. Cappello, supra (quoting New Jersey Statutes § 2C:20-7(b)).

Cappello claimed the prosecution did not “present any evidence to show she knew the victim's account had been unlawfully accessed”, i.e., she argued that the prosecution did not prove she knew the funds were stolen. State v. Cappello, supra.  The Appellate Division explained that there was

more than enough evidence in the record from which a jury could find beyond a reasonable doubt that the funds transferred to Cappello's account had been stolen. There was also more than enough evidence to demonstrate that Cappello knew or believed that she was engaged in some sort of criminal activity.

Nevertheless, we are constrained to find that there was no factual basis for a finding, beyond a reasonable doubt, that Cappello knew or believed that the funds had been stolen, which is the key element of the offense for which she was convicted.

State v. Cappello, supra. 

It also explained that funds are

fungible. This is not a case in which a defendant is reselling automobiles, works of art, or other items under suspicious circumstances, in which there would be a strong inference, especially from repeated transactions, that the defendant knew or believed the items were stolen. . . .

The State produced no evidence that Cappello actually knew the source of the funds. The facts that she was engaging in conduct inconsistent with the written terms of her employment, could not contact her `employer’ directly, opened a personal rather than a business account, gave false addresses to the bank, and sent the money out of the country simply do not support a finding, beyond a reasonable doubt, that the funds were or probably were stolen.

The funds could just as easily have been the proceeds of other illegal activities, such as the sale of illegal drugs or illegal gambling, or efforts to avoid taxes or laws concerning the transfer of funds out of the country. Under the facts of this case, the conclusion that the funds were stolen, although in fact accurate, is, in terms of Cappello's knowledge of that fact, necessarily based on speculation rather than proof beyond a reasonable doubt.

State v. Cappello, supra. 

The prosecution noted that, when she was interrogated by Barone, Cappello said “`everyone kept telling [her she was] money laundering and that what [she] was doing was illegal sending money overseas.’” State v. Cappello, supra. I assume the prosecution argued it was reasonable to infer, from these statements, that she knew she was receiving stolen property. Cappello addressed that issue when she testified at trial:

`I had two people say you better watch, that could be money laundering. I'm like how would I know that and how do I ask an employer that. Where are you getting your money from to pay me?”

`I just don't know of anybody who would do that. If I'm wrong, I'm more naïve than I thought. I mean I have no way of knowing that.’

State v. Cappello, supra. 

The Appellate Division also explained that money laundering, “unlike receiving stolen property, does not of necessity involve the receipt of stolen funds. In fact, a defendant charged with that offense does not even need to know the source of the funds or the precise nature of the criminal activity involved.”  State v. Cappello, supra.  It also noted

that, in contrast to the receiving [stolen property] statute's requirement that the defendant knew or believed the funds were stolen, the State need only prove that `a reasonable person would believe’ the funds laundered by the defendant were derived from criminal activity. The prosecutor in this case argued to the jury that Cappello `should have known’ that the funds were stolen, which is a clear misstatement of the law.

State v. Cappello, supra. 

It therefore assumed, “without deciding, that the facts adduced at Cappello's trial would support a conviction for money laundering”, but held that they “do not, however, support a conviction for receiving stolen property, for the reasons outlined above.”  State v. Cappello, supra.  The court therefore reversed the conviction.  State v. Cappello, supra. 

The court then rather cursorily rejected Capello’s appealing her conviction for resisting arrest.  State v. Cappello, supra.  It found that “most” of her arguments on this issue were “not directly applicable to the resisting charge” and that the others were “without merit and not warranting extended discussion in a written opinion.”  State v. Cappello, supra. 

So, since the court reversed Capello’s receiving stolen property conviction, it vacated the two-year sentence of probation imposed on that conviction and also vacated the order to pay restitution.  State v. Cappello, supra.  That means Cappello was (only) convicted of resisting arrest and must serve the one period of probation imposed for that crime.  State v. Cappello, supra.