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State v. Marias
State v. Marias
A-2145-19T1
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION
State v. Marias
463 N.J. Super. 526 (N.J. Super. 2020) • 233 A.3d 581
Decided May 19, 2020
1
State v. Marias 463 N.J. Super. 526 (N.J. Super. 2020)
We summarize the pertinent allegations against presumptive term of fifteen years' imprisonment,
defendant, with a caveat that the State has yet to including a period of one-third to one-half of the
present its proofs at a trial. term that is not eligible for parole. N.J.S.A. 2C:21-
27(a) ; N.J.S.A. 2C:44-1. The sentences for the
The State alleges that defendant Ian W. Marias
underlying crime and for the money laundering
stole merchandise from the warehouse of his next-
must be served consecutively. N.J.S.A. 2C:21-
door neighbor and employer, who is in the
27(c). A conviction of first-degree money
business of selling doors and door supplies, with
laundering includes a fine of $500,000, N.J.S.A.
the assistance of an accomplice named Adam
2C:21-27.2(a), whereas the lesser grades of the
Edwards (who later cooperated with the State
offense have lower prescribed fines.1
pursuant to a plea bargain). The stolen goods had
been obtained by the employer at a cost of about 1 Under all three grades of the offense, the
$878,000 but were estimated to have a retail value sentencing judge is authorized to impose
of about $4 million. various other monetary sanctions and
remedies, which are not at issue at this time
According to the indictment, Marias sold a portion in this interlocutory appeal. See N.J.S.A.
584 of the stolen merchandise for *584 about $63,000 2C:21-27(b) ; N.J.S.A. 2C:21-27.1 to
531 to a buyer in New Hampshire. The *531 buyer paid -27.6; N.J.S.A. 2C:21-28.
that money to a fictitious company created by
Marias. The rest of the merchandise defendant The indictment charged Marias with a first-degree
kept at his grandmother's house. money laundering offense, under a theory that the
"amount involved" exceeded $500,000. Marias
Among other offenses, the indictment charged moved to amend the indictment to charge only a
Marias with engaging in a money laundering third-degree offense, arguing that the $63,000 he
transaction prohibited under N.J.S.A. 2C:21-25(b) received for the merchandise he was able to sell
(2)(a). That provision, in pertinent part, makes a constituted the "amount involved." The State
person guilty of a crime if he or she: opposed the motion, arguing that the amount
involved should include the unsold merchandise
(b) engages in a transaction involving
that was stolen, which it says was clearly worth
property known or which a reasonable
532 more than $500,000.*532 The motion judge, sua
person would believe to be derived from
sponte, conceived of and applied a mathematical
criminal activity
formula to calculate the "amount involved" for
grading purposes. The judge found that, if the
....
State's proofs at trial were believed, the amount
defendant had laundered was $283,500. The judge
(2) knowing that the transaction is
accordingly modified count three of the indictment
designed in whole or in part:
from a first-degree to a second-degree money
laundering offense.
(a) to conceal or disguise the nature,
location, source, ownership or control of The judge arrived at this figure by dividing the
the property derived from criminal claimed retail value of the goods that defendant
activity; stole from the warehouse (approximately $4
million) by what the owner had paid for those
A conviction for money laundering carries with it
goods ($878,000). By this calculation, the judge
a host of significant penal consequences. For
determined that the retail cost was 4.5 times what
example, a first-degree money laundering
he regarded as the "wholesale" cost. The judge
conviction requires the defendant to serve a
then multiplied the amount defendant realized on
2
State v. Marias 463 N.J. Super. 526 (N.J. Super. 2020)
the sale of the goods (approximately $63,000) by For grading purposes, our State's money
4.5 to arrive at a fair market value of $283,500. laundering statute uses the term "amount[s]
That calculated sum would place the "amount involved" but does not define that term within its
involved" within the second-degree range, above text. N.J.S.A. 2C:21-27. The four definitional
the third-degree cutoff of $75,000 but below the provisions expressed in the statute at N.J.S.A.
$500,000 first-degree threshold. 2C:21-24 2 do not include it. The statute does
instruct at N.J.S.A. 2C:21-27(a) that "[a]mounts
On appeal, the State contends the trial court's
involved in transactions conducted pursuant to one
method calculated the maximum amount involved
scheme or course of conduct may be aggregated"
too low, while defendant argues the court set the
to determine the degree of the offense (emphasis
585 maximum too high.*585 II.
added). Apart from that aggregation principle, the
A. statute is otherwise silent about the term's
meaning.
In State v. Harris, 373 N.J. Super. 253, 263, 861
A.2d 165 (App. Div. 2004), we explained that our 2 Defining, respectively, the terms "Attorney
money laundering statute in N.J.S.A. 2C:21-25 General," "derived from," "person", and
activities.
The legislative history does not enlighten us as to
First, N.J.S.A. 2C:21-25(a) criminalizes the what the New Jersey Legislature exactly meant by
possession or transportation of property that a the term "amount[s] involved." The legislative
reasonable person would believe to be derived findings and declarations associated with the Act
from criminal activity. Defendant in this case was and codified in N.J.S.A. 2C:21-23 are
not indicted under this provision. 534 uninformative in this regard.3 *534 Some guidance
of a more generic nature is supplied by N.J.S.A.
Next, N.J.S.A. 2C:21-25(b) criminalizes two types
2C:1-14. Those general definitional provisions
of transactions involving property known to be
cover all portions of our Criminal Code, unless a
533 derived from criminal activity. *533 N.J.S.A.
different meaning is prescribed by a particular
2C:21-25(b)(1) prohibits transactions intended to
statute. Within those general definitions,
facilitate or promote the criminal activity. N.J.S.A.
subsection (m) of N.J.S.A. 2C:1-14 instructs:
2C:21-25(b)(2), meanwhile, bars transactions that
3 Among other things, the legislative
attempt to conceal or disguise the nature, location,
source, ownership, or control of the property findings declare that:
3
State v. Marias 463 N.J. Super. 526 (N.J. Super. 2020)
In order to safeguard the public The Model Criminal Jury Charge for money
interest and stop the conversion laundering includes the same principles. The
of ill-gotten criminal profits, charge instructs that "property means anything of
effective criminal and civil
value ... [and] includes any benefit or interest
sanctions are needed to deter and
without reduction for expenses incurred .... Value
punish those who are converting
means the fair market value of the property at the
the illegal profits, those who are
time and place of the alleged operative act ....
providing a method of hiding the
Amounts involved in transactions conducted
true source of the funds, and
those who facilitate such
pursuant to one scheme or course of conduct may
activities. It is in the public be aggregated in determining the amount
interest to make such conduct involved." Model Jury Charges (Criminal),
subject to strict criminal and civil "Financial Facilitation of Criminal Activity
penalties because of a need to (Money Laundering) ( N.J.S.A. 2C:21-25(b)(2) )"
deter individuals and business 535 (approved June 2009) (emphasis *535 added).
entities from assisting in the However, the model charge does not instruct how
"legitimizing" of proceeds of a jury is to calculate the amount(s) involved in
illegal activity. such transactions.
the time of the wrongdoing. Hence, the L.Ed.2d 912 (2008), Congress amended the
Act to clarify that "proceeds" includes
defendant's conduct in Cetnar in returning the
"gross receipts" and not just profits. See,
funds he had embezzled did not limit the "amount
e.g., United States v. Stoddard, 892 F.3d
involved" to the interest he could have earned on
1203, 1214 n.2 (D.C. Cir. 2018).
the funds while he possessed them. Id. at 263-64,
775 A.2d 198. Rather, the amount involved We are cognizant the term "amount involved"
consisted of the value of the funds at the time they happens to be used in the federal Money
were stolen. Id. at 263, 775 A.2d 198. Laundering Control Act of 1986, 18 U.S.C. §§
4
State v. Marias 463 N.J. Super. 526 (N.J. Super. 2020)
981 - 982, which addresses forfeiture of property include the fair market value of the unsold stolen
involved in money laundering. Under that federal goods that Marias was keeping in his
forfeiture statute, property "involved in" a grandmother's garage.
transaction that violates the money laundering
Notably, Marias was indicted under the
statutes is defined as property with a "substantial
"transactional" provision of the money laundering
connection" to the alleged unlawful activity. See,
statute, N.J.S.A. 2C:21-25(b), not the
e.g., United States v. $3,000 in Cash, 906 F. Supp.
"transportation/possession" portion, N.J.S.A.
1061, 1065 (E.D. Va. 1995) ; see also George
2C:21-25(a). We do not understand why the
Chamberlin, Annotation, What is Considered
indictment was framed in that limited way. Be that
Property "Involved In" Money Laundering
as it may, we do not reach here the hypothetical
Offense, and thus Subject to Civil or Criminal
question of what the "amount involved" would be
Forfeiture, for Purposes of Money Laundering
if defendant had been charged with a "subsection
Control Act (18 U.S.C.A. § 981(a)(1)(A) and
(a)" offense under N.J.S.A. 2C:21-25 rather than,
982(a)(1)), 135 A.L.R. Fed. 367 (1996). But we
or in addition to, the "subsection (b)" transactional
have no express indication that the New Jersey
offense.
Legislature intended to adopt such a definition
when enacting our own State's money laundering We do not conceive of the "transaction" under
536
587 statute.*587 *536 subsection (b) to encompass the mere holding or
movement of goods with an intent to launder
Comparatively, the money laundering statutes of
them. If we were to do so, it would impermissibly
several other states we have located do not use the
render the transportation/possession language
term "amounts involved" for grading the offense,
within subsection (a) redundant and superfluous.
but instead employ other terms.5 We have been
See Harris, 373 N.J. Super. at 263, 861 A.2d 165
unable to find other states that use the precise
(holding that N.J.S.A. 2C:21-25 "criminalizes
terminology used for grading money laundering in
537 three *537 distinct types of conduct"). We must
N.J.S.A. 2C:21-27.
construe the statute in a manner that imbues
5 See, e.g., (Illinois) "property of a value not meaning to all of its terms. See State v. Regis, 208
exceeding," 720 Ill. Comp. Stat. Ann. N.J. 439, 449-50, 32 A.3d 1109 (reiterating the
5/29B-1 (2020) ; (Indiana) "if the value of well-established principle that statutes should be
the proceeds or funds is at least," Ind. Code construed to give "meaning to all of the statute's
Ann. § 35-45-15-5 (West) ; (California) language").
"value of the transaction or transactions
exceeds," Cal. Penal Code § 186.10 (West) We recognize that in State v. Diorio, 216 N.J. 598,
; and (Texas) "if the value of the funds is," 625, 83 A.3d 831 (2014), our Supreme Court held
Tex. Penal Code Ann. § 34.02 (West). that the money laundering statute is a continuing
-------- offense for purposes of the statute of limitations
when a defendant's successive actions bespeak a
B.
common scheme to defraud. But unlike the present
Having considered these authorities and indictment's description of Marias's conduct
conceptual principles, we agree with the State that interacting with one buyer, the defendant in Diorio
the trial court erred in amending the indictment undertook a series of transactions, bank deposits,
from a first-degree to a second-degree money and withdrawals, and the fabrication of company
laundering offense. However, in reaching that records, all in an effort to perpetuate and disguise
determination, we do not adopt the State's his continuing scheme. Id. at 603-07, 83 A.3d 831.
argument that the "amount involved" should
5
State v. Marias 463 N.J. Super. 526 (N.J. Super. 2020)
As best as we can tell from the limited record $63,000 price was an exceptionally discounted
here, the only "transaction" committed by Marias bargain below wholesale cost. There appears to be
was his sale of a portion of the stolen goods. Had some indication that the defendant portrayed the
he been charged under subsection (a) with goods to the buyer as such by allegedly suggesting
illegally possessing the remainder of the stolen he was liquidating his grandfather's business.
goods in his grandmother's garage, the "amount
Although we appreciate the judge's creativity, the
involved" arguably may have been greater. Again,
assumptions underlying his formula might not be
we need not resolve that question in the abstract
adopted by the jurors. As N.J.S.A. 2C:21-27
here.
instructs, the "amount involved ... shall be
Hence, on the money laundering count, Marias is determined by the trier of fact." The judge was
culpable under subsection (b) of N.J.S.A. 2C:21- correct, however, in rejecting defense counsel's
25 for what he transacted, not for what he own claim that the "amount involved" must be
otherwise possessed or transported. By equal to or capped at the $63,000 sale price. The
588 comparison, the separate *588 count in the jury is entitled to arrive at a higher (or, for that
indictment for theft under N.J.S.A. 2C:20-3 more matter, lower) figure, so long as it has reasonable
broadly covers all of the goods, including the support in the trial evidence.
goods Marias stole but did not sell.
For these reasons, we affirm the trial court in its
That said, subject to the ultimate proofs at trial, denial of defendant's motion but modify its ruling
there are reasonable grounds here for a jury to to reinstate the first-degree charge.
decide that the fair market value of the goods that
Modified and remanded. We do not retain
Marias was able to sell exceeded the $500,000
jurisdiction.
first-degree threshold. The present record indicates
the owner of the warehouse stated that the total
replacement cost of the entire stolen inventory was
538 $1.946 million. Investigators noted *538 that the
replacement cost of the items remaining in the
garage was approximately $1.4 million. The
victim has apparently stated that Marias sold the
goods for "pennies on the dollar" because the fair
value of the items far exceeded what Marias
charged for them.
6
State v. Marias 463 N.J. Super. 526 (N.J. Super. 2020)