Opposition Brief — United States v. Cabrales

j Supreme Court, U.S

FIELF p

DEC 11 1997

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No. 97-643

St eew wee -.-

In The

Supreme Court of the United States

October Term, 1997

S

UNITED STATES OF AMERICA,

Petitioner,

VICKIE S. CABRALES,

Respondent.

¢

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Eighth Circuit

4

BRIEF IN OPPOSITION TO PETITION

FOR WRIT OF CERTIORARI

S

JOHN W. Rocers

Counsel of Record

Law Orrices or Davip B. RoGers

Village Square Building

813 East Walnut Street, Suite B

Columbia, Missouri 65201

573-442-0131

Attorney for Respondent Vickie S. Cabrales

COCKLE LAW BRIEF PRINTING CO. (800) 225-6964

OR CALL COLLECT (402) 342-2831

TABLE OF CONTENTS

STD 85.044 ipidi aeads eked 2

A. Petitioner's argument is flawed in that the

underlying criminal conduct is not an element

of money laundering........................ 4

B. Petitioner’s contention that Respondent's con-

duct constituted a “continuing offense” is mis-

PONENT 6 66s cb teecickscauniinrdukunciiecc tds. 9

C. United States v. Anderson, 328 U.S. 699 (1946),

controls the issue before this Court.......... 10

D. Money Laundering is a separate and distinct

crime from the “specified unlawful activity” to

which the statute refers ..................... 13

E. The question of proper venue raises deep

issues of public policy....................... 14

(TN 6 ih cued ohtedsenpd chaste bentel ee 16

rae O ac eh App. 1

ii

TABLE OF AUTHORITIES

Cases:

Travis v. United States, 364 U.S. 631 (1961)........... 15

United States v. Agnotti, 105 F.3d 539 (9th Cir. 1997) ..... 2

United States v. Anderson, 328 U.S. 699 (1946)

Peer i s eee bees beeneeneee 4, 10, 11, 12

United States v. Beddow, 957 F.2d 1330 (6th Cir.

EER ee Perr errr errerrri rt TretT rire 2,3

TT PERTTI TTI T ETE LL 3, 14

United States v. Dimeck, 815 F.Supp. 1425 (D.Kan.

1993), rev'd on other grounds, 24 F.3d 1239 (10th

OER, BODE) oc cece cccccccccccccccncccccceeeeseccess 3

United States v. Edgmon, 952 F.2d 1206 (10th Cir.

1991), cert. denied, 505 U.S. 1223, 112 S.Ct. 3037,

120 L.Ed.2d 906 (1992)........ccevscceeeeeeeees 13, 14

United States v. Gabel, 85 F.3d 1217 (7th Cir. 1996)..... 7

United States v. Griffin, 814 F.2d 806 (1st Cir. 1987) .... 10

United States v. Heaps, 39 F.3d 479 (4th Cir. 1994) ..2, 13

United States v. Isabel, 945 F.2d 1193 (1st Cir. 1991)..... 6

United States v. Johnson, 323 U.S. 273 (1944)......... 14

United States v. Johnson, 971 F.2d 562 (10th Cir.

PCE UE CREE Sod bb ardor scedeececccccecceccccces 14

United States v. Medina-Ramos, 834 F.2d 874 (10th

EES EE SIT OOP PPT TLITETT TET TTA LTT 10

United States v. Ospina, 798 F.2d 1570 (11th Cir.

DMETUEEGADAGHEDO Phe berccesceccccccccoceocs 2, 5, 7

iii

TABLE OF AUTHORITIES - Continued

Page

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

TTITTTITT Titer Ce rere eee 13, 14

United States v. Sax, 39 F.3d 1380 (7th Cir. 1994)...... 2

United States v. Smith, 44 F.3d 1259 (4th Cir. 1995) ...5, 7

United States v. Williams, 788 F.2d 1213 (6th Cir.

1986)..... jn k60 denen bGini ken se ghee bs aonb 2

CONSTITUTION, STATUTE, AND RULEs:

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SP Ce ee win bentaccesécecadussntoansseseudades 6

Se ee OP POs concnccccccccceccenece 3, 4, 11, 12

BD UDA. © BGUGGAME MBE)... ccc ccscccccccccccccess 14

IS USC. § IGSGCAMIMBME) .. 0. cc ccccsccccccccces 3, 11

ee ee Oe IG on4 4600406404000 eeeeneduconene 3

eee 3, 12

ee ee ae ED 6 ddncencdwdseedacecncnnenas 2, 3, 4, 9

Sp eh te nh 00066 0d sheds sb0ksandbnnbacnneadentes a)

ee A CI, Wl nn en64d4ckdubecedtecceeaanenc 15

US. Cove, ast. GE, 6 2, oo. 8... ccccccccccccccces 14, 15

Sab ae CL OD Ea sbeGhdcceaaweausabesnasecaaauawee )

Pe Gs GS OS MD oc bcd. Keine céeaconateteccentcas 2

1979 Committee Notes to FED. R. CRIM. P. 18...... 15

a

BRIEF IN OPPOSITION TO PETITION

FOR WRIT OF CERTIORARI

Respondent is satisfied with and generally adopts

Petitioner's statements of the Opiuions Below, Jurisdic-

tion, Constitutional and Statutory Provisions and Rule

Involved, and Statement, except for the following omis-

sion. Respondent, as well as Petitioner, filed a motion for

rehearing in the United States Court of Appeals for the

Eighth Circuit. Petitioner's motion for rehearing was

denied on June 12, 1997; however, the Court amended its

decision upon Respondent's motion. The Order of the

Court (App., infra, la) amending its decision is reported

at 115 F.3d 621.

ARGUMENT

The Eighth Circuit correctly refused to follow the lead

of the Fourth,’ Sixth, Seventh, and Ninth‘

' The issue in United States v. Heaps, 39 F.3d 479, 482 (4th

Cir. 1994), was whether the district court abused its discretion in

denying the defendant's motion for a change of venue pursuant

to Feo R. Crm. P. 21(b). Heaps, 39 F.3d at 482. Thus, with venue

admittedly proper where the defendant was tried, Heaps is not

relevant to the instant case. Id.

2 The Eighth Circuit distinguished United States v. Beddow,

957 F.2d 1330, 1336 (6th Cir. 1992), in the opinion below. See

App., Petition, 4a-6a, n.4. In addition to the differences stated by

the Eighth Circuit, it is noteworthy that the Sixth Circuit

determines venue based on the so-called “substantial contacts

rule” that takes into account a number of factors including “the

site of the defendant's acts, the elements and nature of the

crime, the locus of the effect of criminal conduct, and the

suitability of each district for accurate fact finding. ...” Beddow,

957 F.2d at 1335 (quoting United States v. Williams, 788 F.2d 1213,

1215 (6th Cir. 1986). Moreover, Beddow cites United States v.

Ospina, 798 F.2d 1570, 1577 (11th Cir. 1986), for the novel

proposition of law it apparently announced; Ospina, however, is

not authority for “a per se rule that money laundering

prosecutions may always be brought in the district in which the

laundered funds were generated.” Petition, 11-12. Thus, if

Beddow does stand for such a proposition, as Petitioner claims,

then the Sixth Circuit so held with no authority on which to base

its conclusion.

3 United States v. Sax, 39 F.3d 1380, 1390 (7th Cir. 1994),

without analysis, relies on Beddow for the proposition “that the

funds used for the acts of money laundering . . . were the

proceeds of [another person’s] drug sales in the Centra! District

of Illinois. This is sufficient to confer proper venue [in that

district] under § 3237(a).”

* United States v. Agnotti, 105 F.3d 539, 545 (9th Cir. 1997),

without analysis, held that “(t]he money laundering began in

the district from which the funds were obtained and,

Circuits in rendering meaningless the venue provisions

contained in the constitution by permitting venue, in a

money laundering® prosecution, to be based on the loca-

tion of the illegal acts that generated the money that was

allegedly laundered. In arguing that venue in a district is

proper in a money laundering prosecution based solely

on the fact that the underlying criminal conduct occurred

in the district, Petitioner ignores that money laundering

is a crime separate and distinct from the “specified

unlawful activity” to which the statute refers. Petitioner

also ignores that proving the categorical delineation or

accordingly venue was proper there as well. See 18 U.S.C

§ 3237(a). In so holding, we follow the lead of the Sixth Circuit,

which held in United States v. Beddow, 957 F.2d 1330 (6th Cir.

1992), that money laundering is a continuing offense and that

venue may lie in the district where the illegal money was

obtained.”

° Respondent refers to a prosecution under 18 U.S.C.

§ 1956(a)(1)(B)(ii) or 18 U.S.C. § 1957(a) when using the term

“money laundering.” Because the linchpin of Petitioner's

argument is that the money that is laundered “in fact involves

the proceeds of specified unlawful activity,” 18 U.S.C.

§ 1956(a)(1), making it allegedly “an essential element of the

money laundering offenses,” Petition, 9, it is necessary to

restrict the term to the specific sections at issue in that certain

violations of the statute do not contain this element of the

offense. See, e.g., 18 U.S.C. § 1956(a)(3) (making it a crime to

conduct or attempt to conduct “a financial transaction involving

property represented to be the proceeds of specified unlawful

activity”); United States v. Dimeck, 815 F.Supp. 1425, 1428

(D.Kan. 1993), rev'd on other grounds, 24 F.3d 1239 (10th Cir. 1994)

(“Congress intended that section 1956(a)(3) apply to the very

situation presented by this case — a sting operation in which the

property involved was not in fact proceeds (as required in

section 1956(a)(1)), but rather, was property represented and

believed by the defendant to be proceeds.” ) (emphasis in original).

status of the money, i.e., that it “involves the proceeds of

specified unlawful activity,”° is materially different from

proving the underlying criminal conduct. Stated differ-

ently, Petitioner's argument ignores that the underlying

“specified unlawful activity” is not an element of money

laundering. By ignoring these key points of law, Peti-

tioner erroneously concludes that money laundering

begins with the “specified unlawful activity” and ends

with the prohibited financial transaction making it a

“continuing offense” under 18 U.S.C. § 3237(a). Finally,

while Petitioner recognizes that United States v. Anderson,

328 U.S. 699, 703 (1946), controls the determination of

whether venue is proper, Petitioner fundamentally mis-

applies its holding.

A. Petitioner’s argument is flawed in that the underly-

ing criminal conduct is not an element of money

laundering.

The crux of Petitioner’s argument is that because “an

essential element of the money laundering offenses is that

the funds in question must be derived from ‘specified

unlawful activity,’ ” Petition, 9, Petitioner concludes that

the district in which the unlawful activity occurred is a

proper venue for a money laundering prosecution. This

© Petitioner focuses too narrowly on the phrase “specified

unlawful activity” and fails to recognize that this phrase

modifies the term “proceeds”; it is the type of proceeds, i.e., that

they be derived from “specified unlawful activity,” that is a

necessary element of a section 1956(a)(1) prosecution, not the

criminal acts of the underlying illegal activity.

argument presupposes that proving the categorical delin-

eation or the status of the money is the same as proving

the underlying criminal conduct. The flaw in this argu-

ment, of course, is that proving that money is “the pro-

ceeds of specified unlawful activity” is different than

proving the commission of certain specified unlawful

activity. See United States v. Smith, 44 F.3d 1259, 1264 (4th

Cir. 1995) (“While it is necessary in order to include such

an allegation [that the money be derived from specified

unlawful activity], the requirement is merely a categorical

delineation of the type of funds that are subject to a

money laundering charge.”).

For example, in United States v. Ospina, 798 F.2d 1570

(11th Cir. 1986), the government presented evidence that

each time an undercover agent received money from the

defendant to launder, a narcotics dog reacted positively

to the presence of narcotic residue on the currency. Id. at

1573, 1574, 1575. The government also presented evidence

that the money was always extremely dirty, that it had a

powdery substance on it, and that when the undercover

agents were counting the money in a money machine, a

cloud came up and the agents ended up with headaches.

Id. at 1574. The Eleventh Circuit held that this evidence

was relevant in proving that the currency was tainted by

narcotics, i.e., that it was “proceeds of specified unlawful

activity.”7 Obviously, this evidence would not be

? The Eleventh Circuit suggested that proving that the

money is the proceeds of specified unlawful activity is not an

essential element of money laundering. See United States v.

Ospina, 798 F.2d at 1583 (“This evidence need not be ‘conclusive

of a material issue in order to be admitted.’ ”). .

sufficient to sustain a conviction for distribution of

cocaine; however, it is sufficient to prove that the money

was “proceeds of specified unlawful activity.” Id. Sim-

ilarly, evidence that the person producing the money that

was laundered had no legitimate source of income has

been considered relevant to proving that the money was

“proceeds of specified unlawful activity.” See, e.g., United

States v. Isabel, 945 F.2d 1193, 1202 (1st Cir. 1991).

A prosecution under 18 U.S.C. § 922, felon in posses-

sion of a firearm,® illustrates the fallacy of Petitioner’s

argument. Without question, such a prosecution requires

the United States to prove that the defendant is a felon -

a status or a categorical delineation. Just because the

status of being a felon is an “essential element of the

offense,” it does not follow that venue is proper based

solely on where the underlying original felonious acts

occurred. The same analysis would hold true to other

criminal offenses that contained a similar status or cate-

gorical delineation as an element of the crime.

8 The venue issue presented by the hypothetical is actually

more appealing than the one presented by the instant case

because the crime of felon in possession requires the defendant

to have committed the underlying felony whereas the offense of

money laundering does not require the defendant to have

committed the underlying “specified unlawful activity.”

Petitioner recognizes this shortcoming in its argument when it

attempts to analogize the money laundering offenses to the

general conspiracy statute, 18 U.S.C. § 371. Petition, 13. The

issue presented by the Petition, of course, does not involve any

conspiracy allegations, and Petitioner’s attempt to turn an

individual money laundering count into a conspiracy by

permitting venue to be based on the underlying criminal

activity of another person must be rejected.

In proving that the money in question “involves the

proceeds of specified unlawful activity,” it is irrelevant

who committed the underlying illegal activity, specifically

when it was committed, where it was committed, or how it

was committed - the government must simply show that

the money in question “involves the proceeds of specified

unlawful activity.” See United States v. Gabel, 85 F.3d 1217,

1224 (7th Cir. 1996) (“The particular nature or time of

those earlier crimes is immaterial.); United States v.

Ospina, 798 F.2d 1570 (11th Cir. 1986) (no allegation that

defendant participated in underlying illegal activity, but

defendant nonetheless convicted of money laundering).

In United States v. Smith, 44 F.3d 1259, 1265 (4th Cir. 1995),

the court stated:

The core of money laundering, which distin-

guishes one such offense from another, is the

laundering transaction itself. Because the

requirement that the funds be illegally derived

is not the distinguishing aspect and therefore

does not lie at the core of the offense, details

about the nature of the unlawful activity under-

lying the character of the proceeds need not be

alleged.

The court concluded that “[j]ust because the statute

requires that funds be obtained from ‘specified’ unlawful

activity does not mean that the government is required to

detail the circumstances of the unlawful activity.” Id.

(emphasis in original).

United States v. Gabel, 85 F.3d 1217 (7th Cir. 1996),

illustrates the above points of law. In Gabel, the court

considered the issue of whether a conviction was within

fifteen years of a money laundering offense to justify a

three-level increase in the defendant’s criminal history

under the sentencing guidelines. Id. at 1222. The govern-

ment argued that the “specified unlawful activity” that

generated the proceeds that was laundered was part of

the instant money laundering offense, and thus, the gov-

ernment argued that the money laundering offense was

within fifteen years of the previous offense for sentencing

purposes. Id. at 1223-1224. In rejecting this argument, the

court stated:

[Money laundering] focuses on the conversion

of the fruits of the earlier crimes into other,

presumably less detectable, forms. The particu-

lar nature or time of those earlier crimes is

immaterial. Only when the effort to conduct the

financial transaction described by the statute

begins does the relevant conduct commence for

money laundering itself. Before that, an individ-

ual has simply committed burglary, drug deal-

ing, bank robbery, or any of the myriad illegal

activities that might lead to ill-gotten wealth.

(citations omitted). While the statute requires

that the money laundered be the fruit of an

illegal act, there is no requirement that the gov-

ernment link the money laundered to a specific

criminal act. Thus, the commission of the illegal

acts cannot be consideredthe “commencement”

of the charged offense. We therefore conclude

that the burglaries and thefts to which Gabel

admitted, which took place from 1988 until his

arrest, do not constitute relevant conduct for the

structuring or money laundering offenses.

Id. at 1224. In summary, Petitioner’s argument, reduced to

its simplest terms, is that money laundering begins with

—r

9

the “specified unlawful activity” and ends with the pro-

hibited financial transaction. The above-cited authority

clearly demonstrates that this is not the law.

B. Petitioner’s contention that Respondent’s conduct

constituted a “continuing offense” is misplaced.

Because Petitioner ignores that money laundering is

a separate and distinct crime that follows in time the

“specified unlawful activity,” see Section D, infra, and

ignores that the underlying criminal conduct is not an

element of money laundering, see Section A, supra, Peti-

tioner erroneously concludes that money laundering is a

“continuing offense” for purposes of 18 U.S.C. § 3237(a).

This erroneous conclusion is premised on the erroneous

assumption that money laundering begins with the

“specified unlawful activity” and ends with the prohib-

ited financial transaction. As shown above, this is clearly

not, nor should it be, the law.

The facts of the instant case do not warrant a “con-

tinuing offense” analysis. Respondent was not charged

with the underlying illegal activity — the source of the

money that was laundered. Respondent was charged with

certain crimes that involved certain financial transactions

that occurred in one place at one time. Venue must be

decided on the charges that the government has filed.

Anything else would make a mockery of the constitu-

tional provisions, statutes,? and court rules! that ensure

a defendant the right to be tried where the alleged crime

% See, e.g., 28 U.S.C. § 1114.

10 See, e.g., Feo. R. Crm. P. 18.

10

was committed. The “continuing offense” analysis is

wholly inappropriate when the alleged conduct that con-

stituted the offense spanned only several minutes in a

Florida bank.

Considering the offenses charged, the Eighth Circuit

was correct in holding that Respondent “was not accused

of a ‘continuing offense.’ She was charged with money

laundering, for transactions which began, continued, and

were completed only in Florida.” App., Petition, 4a.

C. United States v. Anderson, 328 U.S. 699 (1946), con-

trols the issue before this Court.

Because the criminal statutes under which Respon-

dent was charged do not contain specific venue provi-

sions, it is necessary and proper to apply the test derived

from United States v. Anderson, 328 U.S. 699 (1946). The

test analyzes the statute defining the crime and focuses

on the verbs, key terms, and policies underlying the

statute to determine the site or sites of the offense and

thus where venue lies. Id. at 705.

In deciding where an offense was committed and

thus where venue lies, Anderson explains that “the locus

delicti must be determined from the nature of the crime

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

Anderson, 328 U.S. at 703. This requires an analysis of the

operative verbs, key terms, and policies underlying the

statute defining the offense. United States v. Griffin, 814

F.2d 806, 810 (1st Cir. 1987); United States v. Medina-Ramos,

834 F.2d 874, 876 (10th Cir. 1987); c.f. Anderson, 323 U.S. at

705 (“It is . . . necessary . . . to decide . . . what acts of

the defendant constituted the violation.”). When one

11

analyzes the operative verbs, key terms, and policies

underlying the statute defining the offense, it becomes

abundantly clear that, in the instant case, venue is in

Florida, not the Western District of Missouri.

For example, in Count II of the indictment, see App.,

Petition, 19a-20a, charged Respondent with a violation of

18 U.S.C. § 1956(a)(1)(B)(ii), making it a crime to “know-

ing[ly] . . . conduct[] or attempt[] to conduct... a

financial transaction which . . . involves the proceeds of

specified unlawful activity . . . knowing that the transac-

tion is designed in whole or in part . . . to avoid a

transaction reporting requirement under State or Federal

law.” Clearly, the key terms in the statute, and thus,

where the crime is committed, is where the defendant

“conducts or attempts to conduct a financial transaction.”

While there are intent elements to the crime (“to avoid a

transaction reporting requirement under State or Federal

law” and “knowing that the property involved in [the

transaction] represents the proceeds of some form of

unlawful activity”), these elements are not the “acts of

the defendant [that] constitute[ ] the violation.” Anderson,

323 U.S. at 705. Similarly, proving the status or categorical

delineation of the money that is laundered, i.e., that it “in

fact involves the proceeds of specified unlawful activity,”

18 U.S.C. § 1956(a)(1), is not the “acts of the defendant

[that] constitute[ ] the violation.” Anderson, 323 U.S. at

705, and is therefore not relevant for purposes of deter-

mining venue. Id. It is clear that what was charged in

Count II of the indictment occurred in Florida. The

alleged conduct which constituted the crime began and

ended in a Florida bank on January 23, 1991. The Eighth

Circuit correctly held that venue is not proper in the

12

Western District of Missouri for Count Il. App., Petition,

9a.

The same analysis can be applied to Count III. Count

Ill of the indictment, See App., Petition, 20a, charged

Respondent with a violation of 18 U.S.C. § 1957(a), which

makes it a crime to “knowingly emgage| | or attempt | to

engage in a monetary transactiom in criminally derived

property that is of a value greaiter than $10,000 and is

derived from specified unlawful activity.” Like a prosecu-

tion under section 1956(a)(1), the status or categorical

delineation of the money invollved in the prohibited

transaction, i.e., that it is “crimiinally derived property

that is of a value greater than $10,,000 and is derived from

specified unlawful activity,” is mot the element of the

crime that is the “acts of the defemdant [that] constitute[ |

the violation.” Anderson, 323 U.S.. at 705, and is therefore

not relevant for purposes of determining venue. /d.

Rather, venue_is proper in the dlistrict where the defen-

dant “knowingly engages or atttempts to engage in a

monetary transaction.” It is clear that what was charged

in Count III occurred in Floridia. The alleged conduct

which constituted the crime begam and ended in a Florida

bank on January 22, 1991. The Eighth Circuit correctly

held venue does not lie in the Western District of Mis-

souri for Count III. App., Petition, 9a.

Under United States v. Andersson, 328 U.S. 699 (1946),

Respondent “was not accused off a ‘continuing offense.’

She was charged with money laundering, for transactions

which began, continued, and were completed only in

Florida.” App., Petition, 4a. The Eighth Circuit correctly

found that “[t]he only acts which: formed the basis for the

money-laundering charges in the instant case consisted of

13

banking transactions which [Respondent] executed only

in Florida. Under these facts . . . the District Court cor-

rectly dismissed Counts II and III as improperly venued

in Missouri.” App., Petition, 9a.

D. Money Laundering is a separate and distinct crime

from the “specified unlawful activity” to which the

statute refers.

The money laundering statutes create a separate

crime, separately punishable, from the underlying crimi-

nal activity.'' United States v. Heaps, 39 F.3d 479, 486 (4th

Cir. 1994). See also United States v. Edgmon, 952 F.2d 1206,

1213 (10th Cir. 1991), cert. denied, 505 U.S. 1223, 112 S.Ct.

3037, 120 L.Ed.2d 906 (1992) (“Congress appears to have

intended the money laundering statute to be a separate

crime distinct from the underlying offense that generated

the money to be laundered.”). The crime of money laun-

dering, by definition, cannot occur until after the comple-

tion of the underlying “specified unlawful activity.” 18

U.S.C. § 1956(a)(1); United States v. Edgmon, 952 F.2d at

1213-1214 (“Congress aimed the crime of money launder-

ing at conduct that follows in time the underlying crime

rather than to afford an alternative means of punishing

the prior ‘specified unlawful activity.’ ”); United States v.

'! Without disputing this important point of law, Petitioner

nonetheless argues that venue in a money laundering

prosecution can be based on the acts that comprise this separate

and distinct crime.

14

Savage, 67 F.3d 1435, 1441 (9th Cir. 1995) (“Congress con-

sidered money laundering to be separate conduct occur-

ring after completion of the underlying criminal

offense.”). Indeed, in United States v. Dimeck, 24 F.3d 1239,

1246 (10th Cir. 1994), the Court recognized that it

“stressed in Edgmon that a violation of § 1956(a)(1)(B)(i)

must ‘follow in time’ the completion of the underlying”

unlawful activity. This analysis is also true to a section

1957 violation. See Edgmon, 952 F.2d at 1442 (“we con-

clude that ‘criminally derived property’ under § 1957 is

equivalent to ‘proceeds’ under § 1956, i.e., funds obtained

from prior, separate criminal activity.”); United States v.

Johnson, 971 F.2d 562, 569-570 (10th Cir. 1992) (“criminally

derived property” is the proceeds from an underlying

criminal offense obtained by the defendant before the

defendant engages in the monetary transaction prohib-

ited by section 1957).

E. The question of proper venue raises deep issues of

public policy.

In United States v. Johnson, 323 U.S. 273, 275 (1944),

this Court stated:

Aware of the hardship to which a trial in an

environment alien to the accused exposes him,

the Framers wrote into the Constitution that

“The Trial of all Crimes . . . shall be held in the

State where said crimes have been commit-

ted....” Article III, § 2, cl. 3. As to underscore

the importance of this safeguard, it was rein-

forced by the provision of the Bill of Rights

requiring trial “by an impartial jury of the State

15

and District wherein the crime shall have been

committed.” Sixth Amendment.

Recognizing the importance of these two constitutional

provisions,'? this Court stated:

These are matters that touch closely the fair

administration of criminal justice and public

confidence in it, on which it ultimately rests.

These are important factors in any consideration

of the effective enforcement of the criminal law.

. . . Questions of venue in criminal cases, there-

fore, are not merely matters of formal legal pro-

cedure. They raise deep issues of public policy

in the light of which legislation must be con-

strued.

Id. at 276.

This Court has warned against an expansive inter-

pretation of venue, which could lead to needless hardship

on the defendant who is forced to defend herself far from

home and available defense resources, as well as “the

appearance of abuses, if not to abuses, in the selection of

what may be deemed a tribunal favorable to the prosecu-

tion.” Id. at 275; Travis v. United States, 364 U.S. 631, 634

(1961) (“We are also aware that venue provisions in Acts

of Congress should not be so freely construed as to give

'? The 1979 Committee Notes to Fep R. Crim. P. 18 explain

the difference between these two constitutional provisions:

Article III, § 2, clause 3 of the United States Constitution places

venue (the geographical location of the trial) “in the State where

the said Crimes shall have been committed,” while the Sixth

Amendment defines the vicinage (the geographical location of

the jurors) as “the State and district wherein the crime shall

have been committed, which district shall have previously been

ascertained by law.”

16

the Government the choice of ‘a tribunal favorable’ to

it.”). These constitutional provisions and the cases inter-

preting them guarantee a defendant an absolute right to

be tried by an impartial jury of her peers where the crime

was committed.

¢

CONCLUSION

The Eighth Circuit correctly decided the issue pre-

sented by the Petition. The Petition for a Writ of Cer-

tiorari should be denied.

Respectfully submitted,

Joun W. Rocers

Attorney for Respondent

App. 1

APPENDIX

UNITED STATES of America, Appellant,

v.

Vickie S. CABRALES, Appellee.

No. 96-3080.

United States Court of Appeals,

Eighth Circuit.

June 12, 1997.

On Appeal from the United States District Court for

the Western District of Missouri.

Before RICHARD S. ARNOLD, Chief Judge, ROSS

and BEAM, Circuit Judges.

ORDER

Vickie Cabrales has petitioned this panel to amend its

opinion in United States v. Cabrales, 109 F.3d 471 (8th

Cir.1997). Though Cabrales prevailed in that case, she is

concerned that a phrase contained in one of the footnotes

of the opinion may adversely affect her in a criminal case

which remains pending against her. See id. at n. 2. The

footnote is merely an explanatory one, and should have

no effect on another court's decision. Likewise, however,

it is not necessary to the holding nor to the reasoning of

the opinion itself, and we therefore amend the opinion to

ensure that no incorrect inferences are drawn from it.

Accordingly, we order that footnote two of the opinion

be amended to read: “The Court did not dismiss Count I,

the conspiracy charge. Count I is not part of this appeal.”

It is so ordered.