Petition for Writ of Certiorari — Temne Adah Hardaway, Petitioner v. United States

Supreme Court briefNov 2, 2021

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Supreme Court, U.S.

FILED

NOV 0 2 2021

OFFICE OF THE CLFRK

No.

IN THE SUPREME COURT OF THE UNITED STATES

TEMNE HARDAWAY

Petitioner

UNITED STATES

Respondent

PETITION FOR WRIT OF CERTIORARI TO THE

EIGHTH CIRCUIT COURT OF APPEALS

Temne Hardaway

Filing Pro Se

livelonginoringa@vahoo.com

(213)984-0542

QUESTION PRESENTED

In United States v. Cabrales,524 U.S. 1, 2 (1998) this Court and the Eighth Circuit

held in a substantive money laundering charge that venue is improper in the

jurisdiction that generated proceeds or of the specified unlawful activity,

emphasizing the statutes prohibited conduct “ interdict only the financial

transactions (acts located entirely in, not the anterior criminal conduct that yielded

the funds allegedly laundered” United States v. Cabrales, 524 U.S. 1, 2 (1998).The

court left open the question as to where venue would be appropriate in a conspiracy

to money launder. The appellate courts assert that in a money laundering

conspiracy, United States v Cabrales is not applicable.

1.Whether a person who obtains proceeds and makes a separate and distinct

agreement from the anterior criminal conduct, to engage in a financial transaction

in a different jurisdiction from where only the alleged proceeds from specified

unlawful activity took place, confer venue to the specified underlying activity

district in a conspiracy to money launder 1956(h) in violation of 18 U.S.C. §

1956(a)(l)(B)(i)

2.Whether the Constitution Sixth Amendment right, that guarantees The Trial of

all Crimes * * * shall be held in the State where the said Crimes shall have been

committed, expands venue in conspiracy criminal trials to those places where the

“essential elements,” the anterior criminal conduct of a predicate crime took place

■s,

but no “essential conduct elements,” or acts in furtherance of the subsequent

charged conspiracy was committed by any conspirators for that conspiracy?

RELATED PROCEEDINGS

United States District Court (E.D. Missouri): United States v. Hardaway, No. A'-llcr-00198-JAR (May 28, 2019) (Report and recommendation)

United States v. Hardaway, No. 19-3448 (United States Eighth Circuit of appeals,

June 7,2021)

iii

TABLE OF CONTENTS

QUESTION PRESENTED

RELATED PROCEEDINGS

iii

TABLE OF CONTENTS

TABLE OF AUTHORITIES

Cases.

Statutes

vii

OPINION BELOW,

JURISDICTION

CONSTITUTIONAL AND STATUTORY PROVISIONS

INVOLVED

Introduction

STATEMENTS OF THE CASE

ARGUMENT

Acts in furtherance...........

Motion Hearing................

Interview with DEA agent

Financial Transactions.....

REASONS TO GRANT THE WRIT

The Eighth Circuit’s decision is incorrect..

Conditional Plea Agreement....................

Circuit Courts Divided.............................

The 7th circuit is not in accord with the Eighth Circuit

Sixth Circuit is in accord with the Eighth Circuit..............................

Fifth Circuit is in accord with the Eighth Circuit..............................

C. This case is the right vehicle for resolving the conflict..................

.29

CONCLUSION..............................................................................

Appendix A Opinion of the U.S. Court of Appeals for the Eighth

Circuit..........................................................................................

Appendix B Report and Recommendation..................................

Appendix C Final Recommendation.................................................

Appendix D Motion Hearing Exceipts.............................................

TABLE OF AUTHORITIES

Cases

‘United States v. Santos, 553 U.S. 507, 518 (2008).........................................

Baldwin v. New York, 399 U.S. 66,73 (1970)...................................................

Barber v. Thomas, 130 S. Ct. 2499, 2517 (2010)..............................................

Cuellar v. United States, 553 U.S. 550, 556 (2008)..........................................

Cuellar v. United States, 553 U.S. 550, 563 (2008).........................................

Duncan v. Louisiana, 391 U.S. 145, 156 (1965)...............................................

Menna, 423 U. S.................................................................................................

Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306 (1950)...........

Prosper v. U.S., 218 F.3d 883 (8th Cir. 2000)...................................................

Singer v. United States, 380 U.S. 24, 31 (1965)...............................................

U.S. v. Bolden, 325 F.3d 471, 491 (4th Cir. 2003)............................................

U.S. v. Mikell, 163 F. Supp. 2d 720, 738 (E.D. Mich. 2001)............................

U.S. v. Perez, 223 F. App'x 336, 340 (5th Cir. 2007).......................................

U.S. v. Perez, 223 F. App’x 336, 343 (5th Cir. 2007).......................................

U.S. v. Villarini, 238 F.3d 530, 535 (4th Cir. 2001)..........................................

United States v. Adefehinti, 510 F.3d 319, 324 (D.C. Cir. 2007);...................

United States v. Baxter, 761 F.3d 17, 31 (D.C. Cir. 2014)..............................

United States v. Bowens,224 F.3d 302, 308 (4th Cir. 2000)............................

United States v. Bundy, 392 F.3d 641, 645 (4th Cir. 2004).............................

United States v. Butler, 211 F.3d 826, 830 (4th Cir.2000).............................

United States v. Cabrales 524 U.S. at 9...........................................................

United States v. Cabrales, 524 U.S. 1 (1998)...................................................

United States v. Cabrales, 524 U.S. 1, 118 S.Ct. 1772, 141 L.Ed.2d 1 (1998)

United States v. Cabrales, 524 U.S. 1, 2 (1998)...............................................

United States v. Cabrales, 524 U.S. 1, 6 (1998)...............................................

United States v. Cabrales, 524 U.S. 1, 7 (1998)...............................................

United States v. Cores, 356 U.S. 405, 407, (1958)...........................................

United States v. Gibson, 875 F.3d 179 (5th Cir. 2017)....................................

United States v. Hamilton, 332 F.3d 1144, 1149 (8th Cir.2003)....................

United States v. Huff, 641 F.3d 1228, 1233 (10th Cir. 2011).........................

14, 26

3,6

*■

United States v. Johnson, 323 U.S. 273, 276 (1944)...........................................................

United States v. Johnson, 323 U.S. 273, 276 (1944)............................................................

United States v. King, 259 F. Supp. 3d 1267, 1269 (W.D. Okla. 2014)..........................

United States v. King, 259 F. Supp. 3d 1267, 1283 (W.D. Okla. 2014)..........................

United States v. Logan, 542 F. App'x 484, 10 (6th Cir. 2013)..........................................

United States v. MacDonald, 435 U.S. 850, 861, 98 S.Ct. 1547, 56 L.Ed.2d 18 (1978)

United States v. Santos, 553 U.S. 507, 512 (2008)..............................................................

United States v. Santos, 553 U.S. 507, 519 (2008)..............................................................

United States v. Savage, 67 F.3d 1435, 1441 (9th Cir. 1995)............................................

United States v. Seward, 272 F.3d 831, 836 (7th Cir.200l).............................................

United States v. Shoff, 151 F.3d 889, 891 (8th Cir.1998)...................................................

United States v. Stewart, 256 F.3d 231 (4th Cir. 2001).....................................................

United States v. Vonn, 535 U. S. 55, 64, n. 6 (2002............................................................

Whitfield v. United States, 543 U.S. 209, 210 (2005).........................................................

Whitfield v. United States, 543 U.S. 209, 215 (2005).........................................................

Whitfield v. United States, 543 U.S. 209, 218 (2005).........................................................

.27

Statutes

18 U.S.C § 1956(a)(2)(B)(i)

,27,31

18 U.S.C § 1956(i)(l)

6,30,31,9,16

18 U.S.C. § 1956(h)

18 U.S.C. § 1956(i)(l)(B)

10, 27

18 U.S.C. § 1956(i)(2)

5,7,24

18 U.S.C. § 3237.

18 U.S.C. §1956(a)(l)(B)(i).

3,6,11

18 U.S.C. § 1956(a)( 1 )(B)(ii)

9,16,26

2,8,10,12,14,19,20

18 U.S.C. §1956(i),

18 U.S.C. §371,

vii

OPINION BELOW

The opinion of the United States Court of Appeals for the Eight Circuit

No. 19-3448 is reprinted at Appendix A .

JURISDICTION

The court of appeals entered judgment on June 7, 2021. On July 19,2021

this court ordered that, in any case in which the relevant lower court judgment,

order denying discretionary review, or order denying a timely petition for rehearing

was issued prior to July 19, 2021, the deadline to file a petition for a writ of

certiorari remains extended to 150 days from the date of that judgment or order.

This Court has jurisdiction under 28 U.S.C. § 1254(l).

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

Article III, Section 2, Clause 3 of the United States Constitution provides

in relevant part: The Trial of all Crimes ★ * * shall be held in the State where the

said Crimes shall have been committed. The Sixth Amendment to the United States

Constitution states in relevant part: In all criminal prosecutions, the accused shall

enjoy the right to a speedy and public trial, by an impartial jury of the State and

district wherein the crime shall have been committed, which district shall have

been previously ascertained by law.

Venue in a 1956(h) or 1957 violation is set forth in 18 U.S.C. 1956(i),

which provides in part as follows: (i) Venue. (2) A prosecution for an attempt or

conspiracy offense under this section or section 1957 may be brought in the district

where venue would lie for the completed offense under paragraph (l), or in any

other district where an act in furtherance of the attempt or conspiracy took place.

18 U.S.C. § 1956

Introduction

When a paramour, straw buyer or any other individual who makes an

agreement to engage in a financial transaction and obtains proceeds in a separate

jurisdiction from suspected, specified unlawful activity jurisdictions, give

prosecutors the power to charge them in a district that violates their Sixth

Amendment right, that guarantees The Trial of all Crimes * * * shall be held in the

State where the said Crimes shall have been committed?

The answer to this Petition has sweeping implications. Everyday millions of

people use money in financial transactions, unaware of where it was generated, nor

Participating in the transfer of the proceeds, from the jurisdiction in which the unlawful

proceeds were generated. If, as some Circuits hold, the generation of proceeds is an act in

furtherance of a separate and distinct money laundering crime, than any person who

engages in financial transactions, with proceeds generated from specified unlawful activity

is subject to stand trial in a location that bears no connection to where the financial

transaction took place.

This case presents a recurring question about the interpretation of these

provisions, on which the courts of appeals are openly divided on venue, specifically,

the place appropriate for trial on charges of 1956(h)conspiracy to money laundering

in violation of 18 U.S.C. § 1956(a)(l)(B)(i) , defined in statutory proscriptions, 18

U.S.C. § 1956(a)(l)(B)(i), “that interdict only the financial transactions” United

States v. Cabrales, 524 U.S. 1, 7 (1998), (acts located entirely in California), “not the

anterior criminal conduct that yielded the funds allegedly laundered.” United States

v. Cabrales, 524 U.S. 1, 7 (1998).

Although this court addressed and made it clear where venue is

appropriate in substantive money laundering cases United States v. Cabrales, 524

U.S. 1, 6 (1998), the appellate courts have consistently held that it is not applicable

in conspiracy to money launder cases. The interpretation becomes complex when it’s

a conspiracy to money launder. In cases similar to Cabrales, where the financial

transaction occurred in a separate district than the specified unlawful activity but

distinguishable from Cabrales, where an agreement was made, outside the charging

district, with someone who is a defendant to the underlying unlawful activity. When

conspiracies are not intertwined, nor charged as such, there needs to be clarity on

where venue can be held.

The government contends, and the Eighth Circuit held, that the

commission of the suspected underlying activity, standing alone is an act in

furtherance of a separate distinct agreement. “The money laundering offense and

the underlying offense that generated the money to be laundered must be distinct to

be separately punishable. “United States v. Santos, 553 U.S. 507, 518 (2008). With

the government having no identifiable financial transactions to show, and no

agreement, from the charging district to the district where the financial transaction

took place, this ruling allows prosecutors to charge defendants in jurisdictions that

have no nexus to where the crime was committed.

The government's position finds no support in this Court's precedents. It

is instead, an unconstitutional power grab that would permit exploratory conspiracy

to money launder indictments. Which in many cases are defendants, whom are

women, and minorities that have been subjected to crimes of circumstances and

have no part in the underlying specified activity but are instead charged with the

subsequent act of conspiring to money launderer.

This conclusion that the anterior criminal conduct of a predicate crime, is

an act in furtherance of a subsequent conspiracy, that the Eight Circuit upheld is

not consistent with the principle that the commission of the Specified Unlawful

Activity is a “circumstance element” and not “an essential conduct element” of the

money laundering offense, and therefore is a violation of the Constitution. “In

performing our venue inquiry, we must be careful to separate “essential conduct

elements” from “circumstance elements.” Rodriguez-Moreno, 526 U.S. at 280 & n.4.

STATEMENTS OF THE CASE

On 7/17/18 Petitioner was sleeping in her home when DEA agents from

St. Louis Missouri flew to California and performed a no-knock search warrant, in

hopes that they would find, petitioners fugitive, paramour, Gerald Hunter (who

didn’t live there) residing there. She was arrested and indicted for 1956(h)

conspiracy to money launder. After the judge granted her bail in California, the

government in St. Louis Missouri objected to her bond and remanded her to the

Eastern District of Missouri. She was then denied bond by the district judge and

remained incarcerated. All the while wondering why she was being held with no

bond, in St. Louis Missouri, when she had never been to Missouri or had no

connection to Missouri.

After speaking with her attorneys, she later discovered that because it

was alleged that she had obtained money to purchase real estate with drug proceeds

that were generated in the Eastern District of Missouri, she would now have to bear

the burden of going to trial, to prove her innocence, in a place where she knows no

one, has never been, and has no ties to. A far place from her witnesses and in a

different location than where the acts were committed.

The Constitution makes it clear that determination of proper venue in a

criminal case requires determination of where the crime was committed. * * * The

provision for trial in the vicinity of the crime is a safeguard against the unfairness

and hardship involved when an accused is prosecuted in a remote place. (Citing

United States v. Cores, 356 U.S. 405, 407, (1958)) 376 U.S. 240, 245

The Supreme Court was emphasizing the principle that the issue of of

venue is more than just a rule of criminal procedure, but rather a Constitutional

guarantee preserved in both Article III of the Constitution as well as the Sixth

Amendment. The two provisions are read together to create one constitutional right

compelling trial in the proper judicial district for any crime charged. See United

States v. Cabrales, 524 U.S. 1, 6 (1998). It’s recognized that the first issue to

consider in a venue case is whether a defendant’s constitutional right to be tried in

a district where the crime was committed is being violated.

In a five-count indictment returned in the United States District Court

for the Eastern District of Missouri, Hardaway, a sole defendant, was charged with

the following offense^ 18 U.S.C. § 1956(h), conspiracy in violation of 1956(a)(l)(B)(i)

(Count IV).The indictment alleged that, petitioner and her co-defendant conducted a

financial transaction designed to conceal the source of the funds - proceeds of

Fentanyl and Cocaine distribution. The Indictment does not specifically allege

where the money laundering occurred, where the narcotics distribution took place,

the nature of the financial transaction, the manner and means of carrying out the

conspiracy nor specification of any overt acts. However, written and oral judicial

admissions by the government revealed that the only money laundering event

contended by the government to have been engaged in by petitioner is the purchase

of a residential property at 3931 West 58th Place, Los Angeles, California 90043.

During the course of the underlying investigation, investigators assumed

that Petitioner engaged in financial transactions involving drug proceeds that were

generated in Missouri. Specifically, on or about February 21, 2017, Petitioner

purchased real property located at 3931 W. 58th Place, Los Angeles, CA 90043 for

$650,000. The investigation revealed that any agreements and all financial

transactions occurred in California. One individual gifted $350,000 of the purchase

price to Petitioner. The remaining money was deposited into escrow by means of

cashier’s checks and wire transfers.

Petitioner moved to dismiss the indictment in its entirety for improper

venue. On recommendation of the Magistrate, the District Court denied the motion

as to Count IV, the conspiracy count, based on the Government's assertions that the

generation of proceeds, the commission of the specified unlawful activity, standing

alone is an act in furtherance of the money laundering conspiracy.

ARGUMENT

I. Venue Lies

In the present case, the requirements for venue in a 1956 or 1957 violation

is set forth in 18 U.S.C. 1956(0, which provides as follows: (i) Venue, (l) Except as

provided in paragraph (2), a prosecution for an offense under this section or section

1957 may be brought in— (A) any district in which the financial or monetary

transaction is conducted; or (B) any district where a prosecution for the underlying

specified unlawful activity could be brought, if the petitioner participated in the

transfer of the proceeds of the specified unlawful activity from that district to the

district where the financial or monetary transaction is conducted. (2) A prosecution

for an attempt or conspiracy offense under this section or section 1957 may be

brought in the district where venue would lie for the completed offense under

paragraph (l), or in any other district where an act in furtherance of the attempt or

conspiracy took place. For purposes of this section, a transfer of funds from 1 place

to another, by wire or any other means, shall constitute a single, continuing

transaction. Any person who conducts (as that term is defined in subsection (c)(2))

any portion of the transaction may be charged in any district in which the

transaction takes place. 18 U.S.C. § 1956.

On the face of the statute, Venue lies where it would lie if the object of the

conspiracy were completed as the co-conspirators planned it, or an act in

furtherance of the conspiracy Whitfield v. United States, 543 U.S. 209 (2005). In

most cases, the facts fall within one or both prongs of section 1956(i), but if no

agreement is reached nor any part of the financial transaction occurred in the

specified unlawful activity district except the alleged underlying crime, venue, as

the Supreme Court stated in Cabrales, would be improper where the anterior

criminal conduct occurred. If the crime is the agreement, or an act in furtherance of

the conspiracy is required, then venue must be available in the district where the

agreement was reached or an act in furtherance of the conspiracy, not where prior

acts were committed in a distinct predicate crime.

The Supreme Court has recognized for decades that “questions of venue

in criminal cases . . . are not merely matters of formal legal procedure. They raise

deep issues of public policy” and implicate “the fair administration of criminal

justice and the public confidence in it. United States v. Johnson, 323 U.S. 273, 276

(1944).

A split in the circuits as to whether the district in which the unlawful

proceeds were obtained, had venue to hear a money laundering case when the

financial transaction occurred totally in a separate district was resolved by the

Supreme Court in United States v. Cabrales, 524 U.S. 1 (1998). In Cabrales,

petitioner was charged with money laundering in violation of 18 U.S.C.

1956(a)(l)(B)(ii) in Missouri. However, all acts pertaining to the money laundering

offense occurred in Florida. The government argued, in conflict with the Eighth

Circuit, that the Supreme Court should follow other Courts of Appeals which had

held that venue for money laundering offenses is proper in the district in which the

funds were unlawfully generated, even if the financial transaction that constitutes

the laundering occurred wholly within another district. The Supreme Court rejected

the government’s position and held: We adhere to the general guide invoked and

applied by the Eighth Circuit: “The locus delicti must be determined from the

nature of the crime alleged and the location of the act or acts constituting it.” 524

U.S. at 6-7.

The money-laundering statute permits venue in "any district where a

prosecution for the underlying specified unlawful activity could be brought, if the

petitioner participated in the transfer of the proceeds of the specified unlawful

activity from that district to the district where the financial or monetary

transaction is conducted." 18 U.S.C. § 1956(i)(l)(B). Consistent with the holding in

Cabrales, all of petitioner’s alleged money laundering conduct occurred in California

and the alleged underlying unlawful activity, and proceeds derived therefrom,

occurred in Missouri. “It was of no moment that the money came from Missouri, the

court explained, because Cabrales dealt with it only in Florida, the money

laundering counts alleged no act committed by Cabrales in Missouri, and the

Government did not assert that Cabrales transported the money from Missouri to

Florida.” United States v. Cabrales, 524 U.S. 1, 2 (1998) Similarly, no allegations

have been made and no evidence has revealed that Petitioner acquired any of the

laundered funds in Missouri and transported them to California, nor participated in

any transfers outside of California.

Not specifically addressed in Cabrales is the issue of a conspiracy charge

and its impact on venue. Statute 18 U.S.C. 1956(i)(2)(2) provides that a prosecution

for an attempt or conspiracy offense under this section or section 1957 may be

brought in the district where venue would lie for the completed offense under

paragraph (l), or in any other district where an act in furtherance of the attempt or

conspiracy took place. On the other hand, the Supreme Court observed- “If Cabrales

is in fact linked to the drug-trafficking activity, the Government is not disarmed

from showing that is the case. She can be, and indeed has been, charged with

conspiring with the drug dealers in Missouri. If the Government can prove the

agreement it has alleged, Cabrales can be prosecuted in Missouri for that

confederacy, and her money laundering in Florida could be shown as overt acts in

furtherance of the conspiracy.” United States v. Cabrales 524 U.S. at 9.

In the present case, Petitioner and co-defendant are charged together only

with conspiracy to commit money laundering in violation of 18 U.S.C.

1956(a)(l)(B)(i). The conspiracy charged is not a general conspiracy pursuant to 18

U.S.C. 371, but the statute 18 U.S.C. 1956(h), that deals with conspiracies for

specific unlawful acts involving financial transactions. “The federal money

laundering statute, 18 U.S.C. § 1956, prohibits specified transfers of money derived

from unlawful activities. Subsection (a)(l) makes it unlawful to engage in certain

financial transactions,” Cuellar v. United States, 553 U.S. 550, 556 (2008). The

government acknowledged that all financial transactions took place in California.

Standing alone, only the generation of proceeds happened in Missouri. “We have

observed that "the core of money laundering ... is the laundering transaction

itself," and that "details about the nature of the unlawful activity underlying the

character of the proceeds need not be alleged.” U.S. v. Bolden, 325 F.3d 471, 491

(4th Cir. 2003)

The single money laundering transaction, in question, revealed by the

government, is the purchase of a residence in Los Angeles, California which was

consummated in a single day in California. By the very nature of the alleged money

laundering conspiracy, nothing in furtherance of the Section 1956(h)conspiracy,

could have happened in Missouri.

A. Acts in furtherance

The indictment did not allege that the money laundering was an act in

furtherance of the drug conspiracy. These are two separate conspiracies that were

not intertwined. The plain meaning of “furtherance” is “the act of furthering,

advancing or helping forward.” Webster’s II New College Dictionary 454 (1999).

United States v. Hamilton, 332 F.3d 1144, 1149 (8th Cir.2003). Conduct from a

predicate crime can't be an act in furtherance of a crime that has not yet happened.

It's not an act that furthers the money laundering conspiracy. As the objective of 18

U.S.C. § 1956, is to conceal the nature of the funds, it's an act that proceeds after

obtaining the tainted funds. The statute is not defined in the terms of causing a

drug Enterprise to continue. The generation of proceeds from illegal narcotics sales

does nothing to further the objectives, of concealment money laundering. The crime

of concealment money laundering begins after the proceeds have been obtained. The

generation of proceeds already exist whether the money will be used in a financial

transaction to conceal the funds or not. "The act must occur after the formation of

the conspiracy agreement and prior to or in completion of the conspiratorial

objective. It also must have been done in furtherance of the accomplishment of that

objective.” U.S. v. Perez, 223 F. App'x 336, 340 (5th Cir. 2007). The generation of

proceeds, as the government would have it, is prohibited conduct that violates the

money laundering statute, when in fact it violates the statute of the crime that is

generating the proceeds.

Although the government charged multiple counts on the indictment,

Venue is to be proper for each count. ‘When multiple counts are alleged in an

indictment, venue must be proper on each count.” United States v. Bowens,224

F.3d 302, 308 (4th Cir. 2000).

What the government is trying to do in the case before us is to piggyback

off the drug conspiracy charges that are properly before them. A conspiracy under

21 U.S.C. 846, and a conspiracy under 1956(h) have different prohibited conduct.

“Mere use of the word "conspires" surely is not enough to establish the necessary

link between these two separate statutes. In short, if Congress had intended to

create the scheme petitioners envision, it would have done so in clearer terms.”

Whitfield v. United States, 543 U.S. 209, 215 (2005).The Supreme Court made it

clear, just because the word conspiracy is used doesn't mean that it establishes the

necessary link to be applied in the same context for different statutes.

The Court distinguished Cabrales by observing that in Cabrales, the

"existence of criminally generated proceeds" was only a "circumstance element" of

money laundering in that it was established by proof of a crime that preceded the

money laundering conduct. Id. at 280 n. 4, 119 S.Ct. 1239. Accordingly, both

Cabrales and Rodriguez-Moreno clearly establish that the mere fact that proceeds

were criminally generated in a particular district is not sufficient, standing alone, to

establish proper venue in that district for a charge of laundering the money. U.S. v.

Villarini, 238 F.3d 530, 535 (4th Cir. 2001). Whenever a defendant acts "after the

fact" to conceal a crime, it might be said, as the Government urges, that the first

crime is an essential element of the second, and that the second facilitated the first

or made it profitable by impeding its detection. But the question here is the place

appropriate to try the "after the fact" actor. It is immaterial whether that actor

knew where the first crime was committed. The money launderer must know she is

dealing with funds derived from specified unlawful activity, here, drug trafficking,

but the Missouri venue of that activity is, at the eight-circuit said, “of no moment.

“United States v. Cabrales, 524 U.S. 1, 2 (1998)

The only reason the government asserted jurisdiction over this separate

distinct charge is because it was attached to an asset/real property that the

government sought to forfeit. They are willing and showing that they will go

through unscrupulous measures and have no reverence for the justice system or the

Constitution.

B. Motion Hearing

Indeed, the government did not even argue to the district court or to the

court of appeals that any proceeds were transferred or transported from Missouri to

California and used for the real property purchase. Based on judicial admissions by

the government and inquiry by the Court, we now know that the unlawful activity

took place in Missouri, Defendant did not participate in that activity and never

traveled to St. Louis to aid or abet the unlawful activity. We also now know that the

proceeds allegedly laundered were generated in Missouri and the financial

transaction giving rise to the money laundering conspiracy occurred completely in

California. No allegation of either Defendant or Hunter transporting proceeds from

Missouri to California is set forth in the indictment nor was any evidence presented

in that regard at the hearing. Every transaction performed to purchase the real

property occurred in California. Nothing was ever alleged nor is there any evidence

that shows to have been initiated or attempted from Missouri. The government

believed the proceeds were acquired from narcotic sales in Eastern Missouri.

“In this case, Your Honor, we have a drug conspiracy that is occurring in

the Eastern District of Missouri.

The Courts But let's -- let's — let's focus on what acts in furtherance of the

money laundering conspiracy happened here. MS. Granger- The -- Okay. The -- The

money is generated from the Eastern District.”

The Courts “The Government has to prove that the funds came from here.

And if they can't do that, it's going to have -- it's going to be a problem for more than

just venue. So that's -- that's, you know, that's the case.” The Magistrate recognized

that many of Petitioner's constitutional rights had been violated during the “Due

Process.” From obtaining a search warrant to holding her with no bail.

However, no evidence of money was ever presented or alleged to have

been transferred from Missouri and used in the same transaction to purchase real

property in California. The government did not become aware of the purchase of the

property until they started doing an investigation in California and followed

someone to the property. There was no nexus between the drug conspiracy and the

property purchased in California. It was two separate conspiracies in two different

places. Ultimately the government succeeded, and the lower court stated that, since

the government alleged in the indictment that “in the Eastern District of Missouri.”

C. Interview with DEA agent

The government acknowledged that all financial transactions took place in

California. Standing alone, only the generation of proceeds happened in Missouri.

“To your knowledge, was Temne Petitioner ever with Gerald Hunter in the

Eastern District of Missouri? Answer: No. Question: To your knowledge, was she

ever by herself in the Eastern District of Missouri? Answer Not that I'm aware of.

■$

Other than the generation of the proceeds of the drug sales, was there any other

aspect of the purchase of the house that occurred here? Answer No.

D. Financial Transactions

There has never been any proof that showed Petitioner obtained any

money from Missouri. There was no transfer of proceeds used to purchase real

property from Missouri to California. The government was unable to show that the

charged defendants participated in “the transfer” the particular transfer from

Missouri (or any other place outside of California) of “the proceeds” the proceeds

involved in those transactions, as required by section 1956(i)(l)(B).

As said in United States v King 259 F. Supp. 3d 1267 (W.D. Okla.

2014)For purposes of section 1956(i)(3), “if there is no identifiable transfer of tainted

funds discernibly connected with the charged laundering transaction from one place

to another place, there can be no ‘continuing transaction’ for purposes of this

provision.” the focus is on identifiable transactions, ” United States v. King, 259 F.

Supp. 3d 1267, 1276 (W.D. Okla. 2014).“It is important in this case to bear in mind

that the defendant's activities, if any, that created the taint in the first place must

not be confused with—or equated with—defendant's participation in the transfer of

the tainted funds. "[A] money-laundering transaction must be separate and apart

from the completed predicate offense generating the proceeds used in the money-

laundering transaction." United States v. Huff, 641 F.3d 1228, 1233 (10th Cir. 2011)

United States v. King, 259 F. Supp. 3d 1267, 1283 (W.D. Okla. 2014).

During the motion to dismiss hearing the government stated “This case

involves individuals distributing fentanyl from California to the Eastern District of

Missouri and money going back to California. There is fentanyl within the time

frame being moved from California to the Eastern District of Missouri.” Thus,

generating drug proceeds, the government in the present case contends, is an overt

act in furtherance of the money laundering conspiracy that creates venue in the

Eastern District of Missouri. However, “obtaining money (generating proceeds) and

concealing it are two different activities.” United States v. Adefehinti, 510 F.3d 319,

324 (D.C. Cir. 2007); United States v. Baxter, 761 F.3d 17, 31 (D.C. Cir. 2014)

(reciting language from Adefehinti); United States v. Seward, 272 F.3d 831, 836

(7th Cir.200l).The government contends that because this is a conspiracy and

Petitioner’s co-conspirator is charged with the Specified Unlawful Activity, that in

Cabrales, the Supreme Court recognized the limits of its holding and cautioned that

“notably, the counts at issue do not charge Cabrales with conspiracy; they do not

link her to, or assert her responsibility for, acts done by others” and “the counts

here at issue allege no conspiracy, but describe activity in which Cabrales alone

engaged.” Id. at 3*7.The Government asserts that, therefore, Cabrales is not

applicable and cites United States v. Romero for the proposition that Cabrales does

not alter a court’s determination regarding venue in a conspiracy case because

“Cabrales simply does not address the issue...” 150 F.3d 821, 826 (8th Cir. 2017).

(Ref.App.B 6a)

The government also cited Prosper v. U.S., 218 F.3d 883 (8th Cir. 2000)

and referenced when you're charging a money laundering conspiracy under a

1956(h), a multi-state offense may be inquired and prosecuted in any district in

which such an offense begun, continued or completed. Venue is proper in conspiracy

cases in any jurisdiction in which an overt act in furtherance of the conspiracy was

committed by any of the conspirators.

“Nevertheless, money laundering crimes are not continuing offenses

simply because "all the actions are interwoven," as asserted by the Government.

Instead, they are continuing offenses, if at all, because the financial transactions (l)

were begun in one district and completed in another or (2) committed in more than

one district. 18U.S.C. § 3237.

U.S. v. Mikell, 163 F. Supp. 2d 720, 738 (E.D. Mich. 2001) . This is tellingly

not the case in this petition, all financial transactions occurred in California, not

Missouri.

E. Report and Recommendation

Although it was established during the motion hearing that an agreement was

never made in Missouri, and none of the financial transactions pertaining to the

single transaction that was the overt act. The magistrate allowed the government to

continue to violate Petitioner's Constitutional claims. “Applying the relevant

principles articulated in Cabrales, the Eighth Circuit cases analyzing proper venue

in money laundering conspiracies, as well as the venue provisions of Section 1956(i),

it is clear that the indictment provides an adequate basis for venue in the Eastern

District of Missouri. Although it is apparently undisputed that Defendant was

never present in the Eastern District of Missouri, it appears to be equally

undisputed that Defendant Hunter, Defendant’s alleged co-conspirator, was present

in the Eastern District of Missouri and the underlying activity, drug distribution,

and proceeds derived therefrom, arguably occurred in the Eastern District of

Missouri. [ECF No. 535]. More importantly, the indictment alleges that Defendant

and Defendant Hunter agreed to conduct a financial transaction involving proceeds

derived from Fentanyl and cocaine distribution in the Eastern District of Missouri

designed to conceal the nature and source, among other things, of the proceeds.”

(Ref.App.B 7a)

REASONS TO GRANT THE WRIT

A. The Eighth Circuit’s decision is incorrect

The extent of permissible criminal venue is an important question that

warrants prompt resolution. To begin with, there is no disputing that the Founders

regarded venue protections as essential to individual liberty. The selection of venue

for a criminal trial is more than a “mere matter of formal legal procedure.” United

States v. Johnson, 323 U.S. 273, 276 (1944). However, while “the concept of a right

to trial in the vicinage was so highly regarded as to appear twice in the

Constitution,” this Court did not specifically address in United states v.

Cabrales,

US. 1, 6 (1998) the issue of a conspiracy charge and its impact on

venue. “Notably, the counts at issue do not charge Cabrales with conspiracy; they do

not link her to, or assert her responsibility for, acts done by others. If the

Government can prove the agreement it has alleged, Cabrales can be prosecuted in

Missouri for that confederacy, and her money laundering in Florida could be shown

as overt acts in furtherance of the conspiracy.”

The high court regarded her deposits that were done in Florida as overt

acts in furtherance of the conspiracy. The specified unlawful activity was not

considered an act in furtherance. Because the high court alluded to what perhaps

would be the case if there was a conspiracy, it has left the lower courts in disarray,

as to the question presented, given the absence of concrete guidance. The results are

injustices, manufactured venues, and abhorrent actions from the disregard of the

original understanding of constitutional protections.

United States eighth circuit court of appeals has decided an important

question of federal law that conflicts with relevant decisions of this Court. This is

the exact case for the high court to clarify and resolve this question that has been

lingering since United States v Cab rales in 1998. Answering this question now, will

prevent deprivation of Constitutional rights in the future. “The prospect of

imprisonment for however short a time will seldom be viewed ... as a trivial or

‘petty’ matter and may well result in quite serious repercussions affecting [a

defendant’s career and his reputation.” Baldwin v. New York, 399 U.S. 66,73 (1970).

Nor “[t]o a prisoner,” is “time behind bars ... some theoretical or mathematical

concept. It is something real, even terrifying.” Barber v. Thomas, 130 S. Ct. 2499

2517 (2010) .

We are uncertain on how the Eighth Circuit relied on the commission of

the specified unlawful activity, standing alone, can be an act in furtherance of a

separate conspiracy, that happens “after the fact”, of the predicate offense. They

just simply stated that Hunter’s drug dealing furthered the money laundering

conspiracy. (App. A at 4a)

“For proceeds to be laundered, there must first be wrongfully obtained

proceeds.” See United States v. Shoff, 151 F.3d 889, 891 (8th Cir.1998). Money

laundering "'proceeds' are funds obtained from prior, separate criminal activity."

United States v. Savage, 67 F.3d 1435, 1441 (9th Cir.1995). United States v. Butler,

211 F.3d 826, 830 (4th Cir.2000) ("Put plainly, the laundering of funds cannot occur

in the same transaction through which those funds first become tainted by crime.").

B. Conditional Plea Agreement

What is also questionable, is the appellate courts obfuscating use of

Petitioners conditional plea agreement to determine venue in a conspiracy to money

launder, and its significance to the venue analysis. Blackledge, 417 U. S., at 30, the

Court held that “a plea of guilty to a charge does not waive a claim that—judged on

its face—the charge is one which the State may not constitutionally prosecute.

Menna, 423 U. S., at 63, Menna’s claim amounts to a claim that “the State may not

convict” him “no matter how validly his factual guilt is established.” Ibid.Menna’s

“guilty plea, therefore, [did] not bar the claim.”

The appellate court was told by the government that they were to only be

reviewing the lower court's decision. The appellate court stated that “Even going

beyond the face of the indictment, Petitioner’s admissions demonstrate that venue

was proper. Petitioner acknowledged in her plea agreement that the “source of the

proceeds” to purchase the residence in Los Angeles “came from the distribution of

fentanyl in the Eastern District of Missouri.” Venue for conspiracy to commit money

laundering is proper “in any . . . district where an act in furtherance of the . . .

conspiracy took place.” 18 U.S.C. § 1956(0(2). The act need not be an element of the

conspiracy offense. Whitfield v. United States, 543 U.S. 209, 218 (2005) Petitioner’s

co-conspirator sales of controlled substances in the Eastern District of Missouri

furthered the money laundering conspiracy by generating funds that Petitioner

used to purchase the home in Los Angeles.” (Pet. App. 4a)

When petitioner signed an 11c conditional guilty plea, it was to “conserve

prosecutorial and judicial resources and advance speedy trial objectives,” for an

issue that could be resolved by appellate review. Not to have venue determined by

guilt, evidenced by a conditional plea agreement. “If factual guilt is admitted, as in

a plea of guilty, or if the facts are stipulated, there is no persuasive reason to

require a lengthy trial in order to preserve a legal point for appellate review.”

United States v. Vonn, 535 U. S. 55, 64, n. 6 (2002)

The government repeatedly said, “she could've gone to trial”, “trial is for

facts”, to distract the judges from hearing the facts, that petitioner's attorney was

arguing. If the government sought to take the case to trial, why then did the

government enter into a conditional plea agreement. “When entering a conditional

plea of guilt, the government-consent requirement ensures that a conditional plea

will be allowed only when the decision of the court of appeals will dispose of the case

either by allowing the plea to stand or by such action as compelling dismissal of the

indictment or suppressing essential evidence. And the court-approval requirement

similarly “ensure[s] that ‘the defendant is not allowed to take an appeal on a matter

which can only be fully developed by proceeding to trial.”’ Id. (quoting Fed. R. Crim.

P. 11 advisory note). In addition to the rule’s explicit requirements, we have held

that a conditional plea must “be limited to case dispositive issues.” United States v.

Bundy, 392 F.3d 641, 645 (4th Cir. 2004). If this was not a case dispositive issue,

the conditional plea agreement should not have been entered.

Leaving the Eighth circuit's ruling in place creates incentives for

prosecutors to broaden the scope of the money laundering venue statute and give

prosecutors power in jurisdictions that they would not have otherwise. This also

creates situations for defendants to have to go to trials in places based on another

crime, that they had no involvement in.These tactics by prosecutors force

defendants to take plea deals that they otherwise wouldn't take, if they were

afforded their constitutional rights, not far from their witnesses and where the

crime was committed. This in turn expands the limits that the Sixth Amendment

guards us against.

Circuit Courts Divided

The 4th circuit is not in accord with the Eighth Circuit

United States v. Stewart, 256 F.3d 231 (4th Cir. 2001) (where defendant

picked up and delivered money within California and had never been to Virginia,

did not know anybody in Virginia, and had never received any telephone calls from

Virginia, venue in Virginia was improper).

U.S. v. Villarini, 238 F.3d 530, 535 (4th Cir. 2001), -The Government

attempts to distinguish Cabrales by noting that Villarini, unlike the defendant in

Cabrales, was charged with the crime that generated the laundered proceeds in the

district in which she was tried. The Government relies on Heaps, in which this

court held that venue for money laundering of drug proceeds was proper in the

district in which the proceeds were criminally generated. See Heaps,39 F.3d at 482.

Our holding in Heaps, however, was based on the proposition that the generation of

the criminal proceeds that were eventually laundered is an "essential element" of

the crime of money laundering, a proposition that the Supreme Court rejected in

Cabrales, cf. CabraJes.524 U.S. at 7. 118 S.Ct. 1772 (explaining that 18 U.S.C.A. $

1956(a)(l)(B)(ii) prohibits only "financial transactions . . ., not the anterior conduct

that yielded the funds allegedly laundered"); U.S. v. Villarini, 238 F.3d 530, 534 (4th

Cir. 2001)

The 7th circuit is not in accord with the Eighth Circuit

United States v King

Similarly, to the present case in Question, in United States v King The

moving defendants originally filed motions to dismiss the money laundering counts,

attacking venue based on the face of the Superseding Indictment. Those motions

were denied because the Superseding Indictment did not, on its face, shed light one

way or the other on the question of whether venue was properly laid in this district.

See, doc. no. 649, at 4. Because of the seriousness of the consequences which would

flow from an erroneous determination of the venue issue, and because the right to

be tried only in a legally authorized venue is obviously (to borrow the words of the

Supreme Court from a different context) "a right not to be tried which must be

upheld prior to trial if it is to be enjoyed at all," United States v. MacDonald. 435

U.S. 850. 861. 98 S.Ct. 1547. 56 L.Ed.2d 18 (1978), the court determined that the

venue issue should be decided by way of a second set of motions to dismiss, to be

filed after requiring the government to file a bill of particulars stating with

specificity the facts upon which the government relies to support venue in this

district. United States v. King, 259 F. Supp. 3d 1267, 1269 (W.D. Okla. 2014)

Funds from over 40 states, including funds originating in the Western

District of Oklahoma, were aggregated in Panama, and then returned to the United

States. The funds were commingled in Panama; however, the government was not

able to show that any particular funds that originated in the Western District of

Oklahoma were present in any particular transaction. “Venue under §

1956(i)(l)(B),” The government was unable to show that the charged defendants

participated in “the transfer”—the particular transfer— from the Western District

of Oklahoma of “the proceeds”—the proceeds—involved in those transactions, as

required by section 1956(i)(l)(B). United States v. King, 259 F. Supp. 3d 1267, 1269

(W.D. Okla. 2014)

United States v. Seward, 272 F.3d 831, 836 (7th Cir.200l) ("The transaction or

transactions that created the criminally-derived proceeds must be distinct from the

money-laundering transaction, because the money laundering statutes criminalize

'transaction[s] in proceeds, not the transactions that create the proceeds."’

Sixth Circuit is in accord with the Eighth Circuit

United States v. Logan-The government in the present case cited United States v.

Logan, 542 F. App’x 484, 10 (6th Cir. 2013) in support of the drug conspiracy being

an act in furtherance of the money laundering. Although very different

circumstances than this petition, the government still relied on its ruling. Drugs

were transported from California to Michigan, and the proceeds were transported

from Michigan to California; once in California, the proceeds were laundered

through the purchase of vehicles, including the motorhome bought for the

conspiracy's kingpin. Accordingly, the government established that an overt act in

furtherance of the conspiracy—the sale of drugs—occurred in Michigan. United

States v. Logan, 542 F. App'x 484, 10 (6th Cir. 2013 United States v. Logan, 542 F.

App'x 484, 10 (6th Cir. 2013). This case is distinguishable from Petitioner’s, in that.

the object that was purchased,(Real property, that was not on wheels) with alleged

proceeds was not used to transport drugs or proceeds back and forth to the unlawful

activity jurisdiction.

Fifth Circuit is in accord with the Eighth Circuit

United v Perez-Appellants' reliance on United States v. Cabrales, 524 U.S.

1, 118 S.Ct. 1772. 141 L.Ed.2d 1 (1998), is misplaced, for there the Court was

careful to point out that " notably, the counts at issue do not charge Cabrales with

conspiracy; they do not link her to, or assert her responsibility for, acts done by

others. “Compare Cabrales, at 1777 ("The counts before us portray her [Cabrales]

and the money she deposited and withdrew as moving inside Florida only"). U.S. v.

Perez, 223 F. App'x 336, 343 (5th Cir. 2007)

C. This case is the right vehicle for resolving the conflict

The entrenched conflict over how to construe venue in a money laundering

conspiracy provides ample reason to grant certiorari regardless of which circuits

have the better reading of the statute because its applicability varies case by case.

The peculiarity of the Eighth Circuit’s interpretation conflicts with their own prior

precedent and in conflict with the Supreme Court's prior rulings makes review more

warranted here.

Granting a writ of certiorari, will prevent prosecutors from extending their

reach way beyond their jurisdiction, and depriving citizens their constitutional

rights to a fair trial. And the many other Fourteenth Amendment rights that are

violated along the way, such as Due Process, Mullane v. Central Hanover Bank &

Trust Co., 339 U.S. 306 (1950).As in this case, when the government from the

Eastern district of Missouri obtained a no knock search warrant in California and

invaded the petitioner's home, with several male officers, with guns drawn, as she

slept alone, in the nude. One false move could have resulted in a death. Petitioner

was given a bond in California and was remanded to Missouri and had her bond

revoked, for a nonviolent crime, held in Missouri, for 18 months. This was an

absolute failure of the justice system and infringement of constitutional rights that

are in place to protect, came crumbling down, shattering her future. Instances like

the petition before us, can give clarity as to the jurisdictional limitations in a

conspiracy to money launder and not allow prosecutors to overstep their boundaries

and conflate two different statutes.

There has been many similar questions presented to the high court but

none of those cases give clarity to the one being presented. United States v Cabrales

524 U.S. 1, 6 (1998) was venue in a substantive money laundering case. United

States v Santos was the interpretation of the meaning of proceeds. In Cuellar v.

United States, the court determined merely hiding funds during transportation is

not sufficient to violate the statute, even if substantial efforts have been expended

to conceal the money. Our conclusion turns on the text of § 1956(a)(2)(B)(i), and

particularly on the term “design.” In this context, “design” means purpose or plan;

i.e., the intended aim of the transportation. Cuellar v. United States, 553 U.S. 550,

563 (2008). In United States v Whitfield, “Conviction for conspiracy to commit

money laundering, in violation of § 1956(h), does not require proof of an overt act in

furtherance of the conspiracy.” Whitfield v. United States, 543 U.S. 209, 210 but for

venue “conspiracy offense . . . may be brought in the district where venue would lie

for the completed offense under [§ 1956(i)(l)], or in any other district where an act

in furtherance of the conspiracy took place,"” Whitfield v. United States, 543 U.S.

209, 210 (2005). With all these different cases none of them gave answers to the

contextual interpretation of venue in a money laundering conspiracy. In Whitfield it

was clarified that Congress did not intend that an overt act be required to prove a

money laundering conspiracy under 18 U.S.C. § 1956(h), but an act in furtherance

is needed for the default venue rule.

“Since context gives meaning, we cannot say the money-laundering statute

is truly ambiguous until we consider “proceeds” not in isolation but as it is used in

the federal money-laundering statute” United States v. Santos, 553 U.S. 507, 512

(2008). “And once again, why should one choose this chancy method of solving the

problem, rather than interpret ambiguous language to avoid it?” United States v.

Santos, 553 U.S. 507, 519 (2008). The same consideration should also be given to

the context of “conspiracy” Since context gives meaning, we cannot say the moneylaundering statute is truly ambiguous until we consider “conspiracy” not in isolation

but as it is used in the federal money-laundering venue statute. Keeping in mind

the courts stance, “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. ” United States v. Santos, 553 U.S. 507, 514 (2008)

However, in the present case the government treats the generation of

proceeds / the commission of the specified unlawful activity conduct, as an overt act

in furtherance of a distinct and separate money laundering conspiracy. If the same

conduct is prohibited by two different statutes, every time someone sold narcotics,

or an act of fraud they simultaneously would be committing an act of money

laundering. “Conspiracy to commit an offense and the subsequent commission of

that crime normally do not merge into a single punishable act.” “To Put another

way, Count 1 targeted a conspiracy to submit false bills to Medicare, while Count 13

alleged a conspiracy to use fraudulently obtained money with the goal of submitting

subsequent false bills.” Because these distinct agreements did not clearly and

obviously merge, we find no plain error. “United States v. Gibson, 875 F.3d 179 (5th

Cir. 2017).

The ruling by the Eighth Circuit, exemplifies that there is confusion

amongst the Circuit Courts interpretation of 1956(h), conspiracy to money launder

statute. With the underlying criminal activity and the subsequent acts done after

obtaining proceeds, Congress has not yet enacted a statute that makes these two

separate punishable acts merge into a single crime.

Leaving this question unanswered, will also leave defendants

questioning the validity of the right to be tried where the acts were

committed.” A right to jury trial is granted to criminal defendants to prevent

oppression by the Government.” Singerv. United States, 380 U.S. 24, 31

(1965). The framers of the constitutions strove to create an independent

judiciary but insisted upon further protection against arbitrary action.

Providing an accused with the right to be tried by a jury of his peers gave him

an inestimable safeguard against the corrupt or overzealous prosecutor and

against the compliant, biased, or eccentric judge. Duncan v. Louisiana, 391

U.S. 145, 156 (1965).

CONCLUSION

For the foregoing reasons, the Court should reverse the judgment below

and remand to the Eighth Circuit.

Respectfully submitted,

Temne Hardaway

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.