Reply Brief — United States v. Cabrales

Supreme Court, U. 8.

\ FILED

Q

“ DEC 24 1997

No. 97-643 ' —

4

In the Supreme Court of the United States

OCTOBER TERM, 1997

UNITED STATES OF AMERICA, PETITIONER

*.

VICKIE S. CABRALES

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

REPLY MEMORANDUM FOR THE UNITED STATES

SETH P. WAXMAN

Solicitor General

Department of Justice

Washington, D.C. 20530-0001

(202) 514-2217

In the Supreme Court of the Anited States

OCTOBER TERM, 1997

No. 97-643

UNITED STATES OF AMERICA, PETITIONER

V.

VICKIE S. CABRALES

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

REPLY MEMORANDUM FOR THE UNITED STATES

Although respondent defends the judgment of the

court of appeals, she acknowledges that the court’s

decision in this case conflicts with decisions of at

least three other circuits. See Br. in Opp. 2-3 & nn.2-

4. That conflict warrants this Court’s resolution. In

We also believe that the court of appeals’ decision in this

case conflicts with the Fourth Circuit’s decision in United

States v. Heaps, 39 F.3d 479, 482 (1994). See Pet. 9-10, 12.

Respondent correctly observes (see Br. in Opp. 2 n.1) that the

defendant in Heaps moved for a change of venue pursuant to

Federal Rule of Criminal Procedure 21(b) (rather than to

dismiss the indictment, or the money laundering counts in it,

on the basis of improper venue). Respondent’s assertion (Br. in

Opp. 2 n.1), however, that venue in Heaps was conceded to be

proper in the Eastern District of Virginia, where the defen-

dant was tried, is incorrect. The defendant in Heaps “asserted

that since all activity conducted by him in furtherance of the

crimes charged occurred in New York, he should not have had

to stand trial in the Eastern District of Virginia.” 39 F.3d at

(1)

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any event, respondent’s arguments on the merits are

unpersuasive.

1. Respondent contends (see Br. in Opp. 9-10, 13-14)

that venue in a money laundering prosecution may

not be based on the location where the tainted funds

were derived because the money laundering offense is

a separate and distinct crime from the “specified un-

lawful activity” that generated the illicit proceeds. In

certain respects, money laundering is an offense dis-

tinct from the underlying “specified unlawful activ-

ity.” Respondent could, for example, be convicted of

money laundering without proof that she personally

assisted in the drug trafficking activities that pro-

duced the funds in question. And even where a defen-

dant is convicted of the predicate “specified unlawful

activity,” a conviction for money laundering requires

proof of additional elements beyond those necessary

for conviction of the predicate crime. But money

laundering does require proof of the specified unlaw-

ful activity that generated the funds.

As the petition explains (see Pet. 5, 9, 12, 14), the

money laundering offenses described in 18 U.S.C.

1956(a)(1)(B)(ii) and 1957(a) contain an element that

the funds in question were the product of “specified

unlawful activity,” and that the defendant knew the

482. Because the money laundering counts were predicated on

a wire transfer of funds from Washington, D.C., to New York,

see id. at 482, 483, the propriety of venue in the Eastern

District of Virginia necessarily rested on the proposition that

“venue for a money laundering case is proper in any district in

which the specified unlawful activity occurs,” id. at 482 (citing

United States v. Beddow, 957 F.2d 1330, 1336 (6th Cir. 1992)).

That proposition was, in turn, essential to the Heaps court’s

holding (see id. at 482-483) that the district court had not

abused its discretion in denying the defendant’s motion for

change of venue.

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funds to have been unlawfully derived. Respondent

contends that “(t]he alleged conduct which consti-

tuted the crime began and ended in a Florida bank,”

Br. in Opp. 11; see Pet. App. 4a (stating that re-

spondent was indicted “for transactions which began,

continued, and were completed only in Florida”).

The banking transactions in which respondent en-

gaged, however, would not have violated Section

1956(a)(1)(B)(ii) or 1957(a) if the funds in question had

purposes of the relevant constitutional and statutory

venue provisions, as having been committed in part in

the district where the tainted unds were generated.

See, e.g., United States v. Lombardo, 241 U.S. 73, 77

(1916) (“where a crime consists of distinct -parts

which have different localities the whole may be tried

where any part can be proved to have been done”).

2. Respondent contends (Br. in Opp. 10-13) that

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

pels rejection of the government’s position. She

relies in particular on the Anderson Court’s state-

ment that the determination of proper venue depends

in part on “what acts of the defendant constituted the

violation.” Id. at 705. The Court in Anderson had no

occasion, however, to address the situation in which

a defendant’s liability under a criminal statute may

depend in part upon the commission of unlawful acts

by any person, including a person other than the

defendant. Anderson cannot plausibly be read to

establish a per se rule that criminal prosecutions

must always be brought in a district where the

defendant himself committed an element of the

charged offense. As we note in the petition (see Pet.

13), for example, it is well established that venue in a

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conspiracy prosecution under 18 U.S.C. 371 is proper

in any district in which an overt act in furtherance

of the conspiracy was committed by any of the

conspirators.

3. Finally, respondent contends (Br. in Opp. 14-16)

that the determination of proper venue in a crimi-

nal prosecution implicates important issues of public

policy. The dual constitutional provisions governing

venue in federal criminal prosecutions (see U.S.

Const. Art. III, § 2, Cl. 3; Amend. VI) do attest to the

significant values underlying the venue requirement.

As this Court has recognized, however, “the geo-

graphy prescribed is the district or districts with-

in which the offense is committed,” which “may or

may not be the place where the defendant resides.”

Anderson, 328 U.S. at 705. Accord, eg., Armour

Packing Co. v. United States, 209 U.S. 56, 76 (1908)

(“The constitutional requirement is as to the locality

of the offense and not the personal presence of the

offender.”). The possibility that a criminal defendant

will be “forced to defend herself far from home” (Br.

in Opp. 15) is thus inherent in the constitutional

scheme.

4. The Court’s resolution of this case is not only

warranted to resolve a circuit conflict involving the

money laundering statutes, but also to clarify

principles governing venue in prosecutions brought

under other federal criminal statutes. For example, a

circuit conflict currently exists with respect to prop-

er venue in prosecutions under 18 U.S.C. 924(c)(1),

which imposes criminal penalties on any person who

uses or carries a firearm during and in relation to a

crime of violence or drug trafficking crime. Compare

United States v. Pomranz, 43 F.3d 156, 159-162 (5th

Cir.) (venue in a Section 924(c)(1) prosecution is

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proper in any district where the underlying drug or

violent crime occurred, even if the defendant did not

use or carry a firearm in that district), cert. denied,

116 S. Ct. 513 (1995), with United States v. Palma-

Ruedas, 121 F.3d 841, 847-851 (3d Cir. 1997) (venue for

Section 924(c)(1) count was not proper in New Jersey

because the defendant did not use or carry the firearm

there, notwithstanding the fact that venue was proper

in New Jersey for the predicate kidnapping charges).”

The government’s position in the instant case rests

on the proposition that, in the absence of statutory

language specifying a contrary rule, venue in a fed-

eral criminal prosecution is generally proper in any

district where an essential element of the criminal

activity in the offense was committed. That position,

if adopted by this Court, would illuminate and clarify

the determination of venue with respect to many

comound federal crimes. Given the importance of

such offenses in the federal system (e.g., Continuing

Criminal Enterprise, 21 U.S.C. 848; RICO, 18 U.S.C.

1962), the venue question in this case should be

resolved by this Court.

For the reasons stated above, and in the petition for

a writ of certiorari, the petition should be granted.

Respectfully submitted.

SETH P. WAXMAN

Solicitor General

DECEMBER 1997

2 The government is currently considering whether to file a

petition for a writ of certiorari in Palma-Ruedas.