United States v. William McCray

MEMORANDUM *

William F. McCray appeals the district court’s denial of his 28 U.S.C. § 2255 motion to vacate his convictions for promotional money laundering. We have jurisdiction under 28 U.S.C. § 2253 (a), and we reverse.

1. The district court erred in concluding that McCray’s promotional money laundering counts, counts 23 and 24 of the Indictment, did not merge with his wire fraud counts, counts 16 and 17. The core of McCray’s fraudulent scheme was to churn the funds in his investors’ accounts to drive up commissions. Unlike a traditional Ponzi scheme, McCray actually used investor capital to trade foreign currency from which he profited by receiving commissions. His trading scheme was a fraud, however, because he misrepresented his returns. The $5.8 million wire transfers to *687 International Forex Limited’s account at the Bank of Bermuda (hereafter the “Bermuda Transfers”) were a “central component of the scheme to defraud.” United States v. Van Alstyne, 584 F.3d 803, 815 (9th Cir.2009). Indeed, after the $5.8 million was transferred to the Bank of Bermuda, subsequent trading in that account generated commissions of over $640,000. As in Van Alstyne , where distribution…

dissenting:

I respectfully dissent. In contrast to the payments to winners and employees of the illegal gambling scheme in United States v. Santos, 553 U.S. 507 , 128 S.Ct. 2020 , 170 L.Ed.2d 912 (2008), the 1999 wire transfers were not critical to McCray’s foreign currency currency trading scheme. Although more than half of the commissions generated by the scheme in 1999 were due to trading from McCray’s Bank of Bermuda account, the amount of commissions from that account, about $641,000, is less than 10% of the overall total of $6.7 million in commissions generated by the scheme over four years. Furthermore, in 1998, the scheme generated $3.9 million in commissions without any trading from the Bank of Bermuda account. Thus, while McCray’s scheme required that he transfer money to trading desks, he did not have to engage in wire transfers to the Bank of Bermuda. Contrary to the majority’s determination, the transfers were not necessary to “perpetuate the scheme’s continued viability.” See Majority at 687.

Since the transfers were not central to the scheme, “proceeds” is defined as gross receipts. See United States v. Grasso, 724 F.3d 1077, 1095 (9th Cir.2013). There is…

FILED

NOT FOR PUBLICATION AUG 27 2014

MOLLY C. DWYER, CLERK

UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 10-56466

Plaintiff - Appellee, D.C. Nos. 3:09-cv-00614-MMA 3:00-cr-02580-MMA- v.

WILLIAM F. MCCRAY, MEMORANDUM*

Defendant - Appellant.

Appeal from the United States District Court for the Southern District of California Michael M. Anello, District Judge, Presiding

Argued and Submitted August 6, 2014 Pasadena, California

Before: REINHARDT, WARDLAW, and CALLAHAN, Circuit Judges.

William F. McCray appeals the district court’s denial of his 28 U.S.C.

§ 2255 motion to vacate his convictions for promotional money laundering. We

have jurisdiction under 28 U.S.C. § 2253(a), and we reverse.

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. 1. The district court erred in concluding that McCray’s promotional

money laundering counts, counts 23 and 24 of the Indictment, did not merge with

his wire fraud counts, counts…