Amicus Curiae Brief — Cuellar v. United States

FILED

@ | AUG 3 - 20m

OFFICE 0%

No. 06-1456 SUPREM. TNE. fob

IN THE

Supreme Court of the Anited States

HUMBERTO FIDEL REGALADO CUELLAR,

Petitioner,

On Petition for a Writ of Certiorari

to the United States Court of Appeals for the Fifth Circuit

AMICUS CURIAE BRIEF OF NATIONAL ASSOCIATION OF

CRIMINAL DEFENSE LAWYERS IN SUPPORT OF PETITION

FOR A WRIT OF CERTIORARI

JEFFREY T. GREEN Cralc D. SINGER

SIDLEY AUSTIN LLP (Counsel of Record)

1501 K Street, NW JOHN E. CLABBY

Washington, DC 20005 CHRISTOPHER R. HART

(202) 736-8000 DAVD A. TAYLOR*

WILLIAMS & CONNOLLY LLLP

725 Twelfth Street, NW

“% sshington, DC 20005

(22) 434-5000

Asterneys for Amicus Curiae National

Association of Criminal Defense

Lawyers.

* Admitted in California only. District of Columbia Bar application pending:

practice supervised by D.C. Bar members pursuant to D.C. Bar Rule 49(c)(8).

QUESTION PRESENTED

Whether merely hiding funds with no design to create

the appearance of legitimate wealth is sufficient to support a

‘i

TABLE OF CONTENTS

Ne EEE rcrccnntscsncsneccsnnamevamemnmnenenieanese i

Re ee CCE ED cctcssscncerscczersersceeecensssseememeennsnes ili

I. THE FIFTH CIRCUIT’S

INTERPRETATION OF “CONCEAL”

EXPANDS 18 U.S.C. § 1956

BEYOND CONGRESS’S INTENT

AND CREATES UNJUST RESULTS. ......... 3

B. sneetineReatitaita tien

Expanded Specific Terms of 18 U.S.C.

§ 1956, Encouraging Broad,

a

Have Significant Negative

II. MANY DEFENDANTS WHO SUFFER

OVERBROAD APPLICATION OF § 1956

WOULD BE SUBJECT TO PROSECUTION

UNDER OTHER CRIMINAL STATUTES IN

FIFCE NE 0 ceessrmmmnnninmnenmnnnenn 12

CY ctsersenreeermnesonmiensesenssmmnncnessmmemnmescesmneans 14

TABLE OF AUTHORITIES

FEDERAL CASES

Santos v. United States, 461 F.3d 886 (7th Cir. 2006)........... 9

United States v. Akintobi, 159 F.3d 401 (9th Cir. 1998)........ 8

United States v. Cuellar, 478 F.3d 282

Ee 11, 13

United States v. Dimeck, 24 F.3d 1239 (10th Cir. 1994)....... 7

United States v. Elso, 422 F.3d 1305 (11th Cir. 2005).......... 6

United States v. Estacio, 64 F.3d 477 (9th Cir. 1995) ........... 8

United States v. Grasso, 381 F.3d 160 (3d Cir. 2004)........ 8,9

United States v. Haun, 90 F.3d 1096 (6th Cir. 1996) ............ 8

United States v. Hurtado, 38 Fed. Appx. 661

(2d Cir. 2002) seleaiiaadiaidtinieiimemamanemens 6

United States v. lacaboni, 363 F.3d 1 (1st Cir. 2004)............ 8

United States v. Leslie, 103 F.3d 1093 (2d Cir. 1997)........... 9

United States v. Lopez, 514 U.S. 549 (1995) .........cceccescseeseees 9

United States v. Ness, 466 F.3d 79 (2d Cir. 2006)...............+. 6

United States v. Posters ‘N’ Things, Lid., 969 F.2d 652 (8th

is SNOT eahithctsinieenicieapeiiadatbaiitinsiininensineeemannsetsetenstantenes 6

United States v. Reed, 77 F.3d 139 (6th Cir. 1996) ...........0+. 7

United States. v. Shepard, 396 F.3d 1116

Ns Titiihintitsiecinisinaniepepocnsasecurinenemmensscences 6,7

United States v. Skinner, 946 F.2d 176 (2d Cir. 1991).......... 9

United States v. Sutera, 933 F.2d 641 (8th Cir. 1991)........... 6

United States v. Valuck, 286 F.3d 221 (Sth Cir. 2002).......... 8

United States v. Wydermyer, 51 F.3d 319 (2d Cir. 1995)...... 7

DOCKETED CASES

United States v. Santos, No. 06-1005 (cert. granted Apr. 23,

Soiree ccciaventnttnsemnamiatinetinimaaieeeaainS 9

FEDERAL STATUTES

ee oieerneneceesssoncsnnmnensataestentenmmenmennsusceseneaiaen passim

IY dciictectencnscceemnscecnssnensneneemmannsusasninnnesinty passim

Rei stciccsenccnssrsnteninntasennnnatiennestoneasmnensennaititsi 13

Be iticiecnnincocnsnnnsenseneneneneanenmniasenenanenenayoemnenatattets 13

a ND terinsnrerscsecerennsceencesenesnmnnsannenenaneneneneneeens 13

iicircerencssasypnicscestremsecenimtesesmemmenatseniensinten 13

Be IED cersneccscceczsasnsccsncacpnescssaqncessessesenseneneesneseesenten 13

i chiteititennennntenscnsseverccceneeenmenetmnmensmneinats 13

Fe eee Oe eee nccnnttncsncscerecsconsnsssnecesceconmansesnssnesaeenesies 11, 13

es Ar TD ccsnnczsnnestesneemtenssemnenennacepeseanessscens 11

MISCELLANEOUS

2007 National Money Laundering Strategy, available at

http://www. treas.gov/press/releases/docs/nmls.pdf

(last visited August 1, 2007) ............csssssscessssserenseers 10

Adam K. Weinstein, Prosecuting Attorneys for Money

Laundering: A New and Questionable Weapon in the

War on Crime, 51 Law & Contemp. Probs. 369

CO Te ieticcrcnccenscanttcnesininieninnionnnnccne 3,4

Ellen S. Podgor, Book Review, Money Laundering and

Legal Globalization: Where Does the United States

Stand on This Issue?, 5 Wash. U. Global Stud. L.

Re, ieee ee niidicttescecentecensetetssemmmincitvieneresmencen 5

Eric. J. Gouvin, Are There Any Checks and Balances on the

Government's Power to Check Our Balances? The

Fate of Financial Privacy in the War on Terrorism,

14 Temp. Pol. & Civ. Rts. L. Rev. 517 ..........0s000-0-+ 11

John K. Villa, Banking Crimes (2001)...........-00-0s-ssessee0es 7, 11

Larry D. Thompson & Elizabeth Barry Johnson, Money

Laundering: Business Beware, 44 Ala. L. Rev. 703

v

Marino-Florentino Cuellar, Criminal Law: The Tenuous

Criminal Finance, 93 J. Crim. L. & Criminology 311

CITE csseerinsecnennsntsenensesiesninenesenceminneins 5, 7, 8, 9, 10, 11

Mary McNamara & Edward W. Swanson, Money

Laundering: How Prosecutors Clean up Under 18

U.S.C. Sections 1956 and 1957, 26 Forum 61 (1999),

NACDL Money Laundering Task Force, Proposals to

Reform the Federal Money Laundering Statutes

(Aug. 1, 2001), available at http://www.nacdl.org/

public.nsf/legislation/CI_01 ae easencnntae

visited August 1, 2007)

Nemuss AE Pele Gaomat ics &

Sally Baghdasarian, Note, Gatekeepers: How the Broad

Application of Anti-Money Laundering Statutes and

Strategies May Open an Attorney's Gates to

Prosecution, 32 Sw. U. L. Rev. 721 (2003)............... 4

Scott J. Golde & Winston E. Clavert, A Practioner's Guide

to the Federal Money Laundering Statutes, 62 J. Mo.

BO, Fe etiscerecsvesnccvasrmivingersenstinaniniiinempmceneces 2

Teresa A. Adams, Note & Comment, Tacking on Money

Laundering Charges to White Collar Crimes: What

Did Congress Intend, and What Are the Courts

Doing?, 17 Ga. St. U. L. Rev. 531 (2000) ............... 10

IN THE

Supreme Court of the Anuited States

No. 06-1456

HUMBERTO FIDEL REGALADO CUELLAR,

Petitioner,

On Petition for a Writ of Certiorari

to the United States Court of Appeals for the Fifth Circuit

INTEREST OF AMICUS CURIAE'

The National Association of Criminal Defense

Lawyers (“NACDL.”) is a non-profit organization with direct

national membership of over 11,500 attorneys, in addition to

more than 28,000 affiliate members from all 50 states.

Founded in 1958, NACDL is the only professional bar

association that represents public defenders and private

criminal defense lawyers at the national level. The

American Bar Association recognizes NACDL an

affiliated organization with full representation in the ABA

‘ Pursuant to Supreme Court Rule 37.6, counsel for amicus states that no

counsel for a party authored this brief in whole or in part, and that no

person other than amicus, its members, or its counsel made a monetary

contribution to the preparation or abmission of this brief. Letters of

consent to the filing of this brief uave been lodged with the Clerk of the

Court pursuant to Rule 37.2.

2

House of Delegates. NACDL’s mission is to ensure justice

and due process for the accused; to foster the integrity,

independence, and expertise of the criminal defense

profession; and to promote the proper and fair administration

of criminal justice, including issues involving the Bill of

Rights. Consistent with these goals, NACDL has previously

criticized illogical and improper judicial expansions of the

money laundering statute _# issue in this petition for

certiorari, 18 U.S.C. § 1956.”

The petition in Cwellar v. United States raises

substantially similar issues regarding 18 U.S.C. § 1956 as in

another petition pending before the Court, Ness v. United

States, No. 06-1604. Accordingly, Amicus is filing

substantially similar briefs in support of both petitions.

INTRODUCTION

Amicus agrees with Petitioner that a writ of certiorari

should be granted in this case. Amicus submits this brief to

elaborate on the reasons why, in its view, the conflict among

the circuits on the meaning of the “conceal or disguise”

clause of the principal federal money laundering statute, 18

U.S.C. § 1956({a), is an important issue that merits resolution

by this Court.

The expansive and unwarranted interpretation

adopted by the Courts of Appeals for the Second, Third,

Fifth, and Eleventh Circuits improperly expands the scope of

an already broad statute far beyond its intended reach.

? See NACDL Money Laundering Task Force, Proposals to Reform the

Federal Money Laundering Statutes (Aug. 1, 2001), available af

http://www.nacdl.org/public.nsflegislation/CI_01_018?opendocument

(last visited August 1, 2007).

3

Section 1956 has become a vehicle for increasing potential

sentences substantially in excess of what otherwise would be

THE FIFTH CIRCUIT’S INTERPRETATION

OF “CONCEAL” EXPANDS 18 U.S.C. § 1956

BEYOND CONGRESS’S INTENT AND

™

CREATES UNJUST RESULTS.

A. The Money Laundering Statute Is Subject

to Expansive Interpretations That Invite

Prosecutorial Over-Reliance.

The Money Laundering Control Act of 1986

(“MLCA”), codified at 18 U.S.C. §§ 1956-1957, was the

first federal statute to criminalize money laundering per se.

See Adam K. Weinstein, Note, Prosecuting Attorneys for

Money Laundering: A New and Questionable Weapon in the

War on Crime, 51 Law & Contemp. Probs. 369, 372-73

4

(Winter 1988). As enacted, the MLCA was

powerful tool for prosecutors. Compared with RICO and

various criminal conspiracy statutes, prosecutors can bring

cases relatively easily under § 1956, and its list of

predicate offenses facilitates convictions.’ See, e.g, Norman

Abrams & Sara Sun Beal, Federal Criminal Law & Its

Enforcement 397 (3d ed. 2000).

Although the scope of the MLCA was broad when

enacted, many courts since have interpreted

capture conduct substantially beyond traditional money

laundering. See Scott J. Golde & Winston E. Clavert, A

Practioner’s Guide to the Federal Money Laundering

Statutes, 62 J. Mo. B. 312, 312 (2006) (“The federal statutes

a

S

. altel

money.”); Sally Baghdasarian, Note, Gatekeepers: How the

Broad Application of Anti-Money Laundering Statutes and

Strategies May Open an Attorney's Gates to Prosecution, 32

Sw. U. L. Rev. 721, 723 (2003) (“The scope of the MLCA

can be rather broad. In fact, the statute can reach so fir as to

impose liability on individuals, such as attorneys, who were

the underlying offense. More broadly, they may seek to use

the money laundering statutes to punish conduct well beyond

> Section 1956(6)(7) provides a lengthy list of offenses that qualify es

“specified unlawful activity,” including the definition of racketeering

found in § 1961(1) (which includes, inter alia, mail and wire fraud).

as soup tuning Gu © Gok Glia Ge

(2006) (“While being 2 leader in fighting money laundering

activity, the U.S. Department of Justice has used new

statutes creatively to expand prosecutorial power beyond its

B. Many Courts Consistently Have Expanded

money laundering statute, | 1 U.S.C.

956, and in particular its “conceal” prong,’ have been

He

* A defendant may be conwicted under § 1956(aX(1) or (aX(2) if it is

shown, inter alia, that the defendant knew the transaction, (a1), or the

international transportation, (a2), was “designed in whole or in part—to

6

interpreted more broadly than Congress intended. See Pet.

for Cert. 8-11. Many courts—including the Fifth Circuit in

the decision below—have adopted extraordinarily expansive

constructions of the word “conceal,” interpreting it to

encompass the mere hiding of funds.

For example, the Second Circuit recently upheld the

money laundering conviction of the owner of an armored-car

business for transportation of cash, without evidence that the

cash transportation was designed to give the appearance of

legitimate wealth. United States v. Ness, 466 F.3d 79, 81 (2d

Cir. 2006), petition for cert. filed June 1, 2007; see also

United States v. Elso, 422 F.3d 1305 (11th Cir. 2005)

(attorney’s placement of client’s illicitly-obtained cash into

personal briefcase, which he attempted to transport by car to

his law office, satisfied concealment prong); United States v.

Hurtado, 38 Fed. Appx. 661 (2d. Cir. 2002) (facts indicating

hidden in luggage bags, without evidence that the

transportation was meant fo make the money appear

legitimate, sufficed to show 2a violation of § 1956). Some

courts also have found the “conceal” element satisfied when

the defendant has done no more than commingle the

proceeds of lawful and unlawful activity in a single bank

account. See United States v. Posters ‘N’ Things, Lid., 969

F.2d 652, 661 (8th Cir. 1992), aff'd on other grounds, 511

U.S. 513 (1994) (deposit by “head shop” owner of shop

proceeds into business account); United States v. Sutera, 933

F.2d 641, 648 (8th Cir. 1991) (deposit of gambling proceeds

into family business account bearing defendant’s name); see

also United States v. Shepard, 396 F.3d 1116, 1121 (10th

Cir.) (“[D]epositing illegal proceeds into the bank account of

conceal or disguise the nature, the location, the source, the ownership, or

the control of the proceeds of specified unlawful activity.” See also §

1956(aX(3\(B).

7

a legitimate business may support the inference of an intent

to conceal.”), cert. denied, 545 U.S. 1110 (2005).

The breadth with which some courts have construed

the term “conceal” is illustrative of a larger trend among the

federal courts to interpret provisions in § 1956 in an

expansive fashion. For example, to be convicted under

§ 1956(aX(1), a defendant must have conducted a “financial

transaction,” which § 1956(c)(4) defines as “a transaction

which in any way or degree affects interstate or foreign

commerce” involving, inter alia, “the movement of funds by

wire or other means.” Some courts have construed the

phrase “or other means” to be virtually unlimited. See, e.g.,

United States v. Reed, 77 F.3d 139, 143 (6th Cir. 1996)

(delivery of money to courier “involved the movement of

funds by wire or other means”); United States v. Wydermyer,

51 F.3d 319, 326-27 (2d Cir. 1995) (“physical transportation

of money out of the United States by hand” is a financial

transaction by “other means”); United States v. Dimeck, 24

F.3d 1239, 1246 (10th Cir. 1994) (noting that physical

delivery of cash is “movement of funds by other means”).

According to one commentator, such interpretations have

“the potential to extemd the reach of the money laundering

statute to any movement of property and greatly expand its

scope.” John K. Villa, Bamking Crimes § 8:10 (2001).

Another commentator expressed a similar concern:

8

Cuellar, 93 J. Crim. L. & Criminolegy at 348.

Another statutory term that some courts have

construed expansively is the “proceeds” element. Section

1956(a)(1) requires, among other things, that a prosecutor

prove that the defendant knew the property involved in the

financial transaction was the proceeds of some form of

unlawful activity. Although the statute does not define this

term, some courts have interpreted it broadly. See United

States v. Haun, 90 F.3d 1096, 1101 (6th Cir. 1996) (defining

“proceeds” as “‘what is produced by or derived from

something (as a sale, investment, levy, business) by way of

total revenue.”” (citation omitted)). Contrary to the plain

language of the statute, “proceeds” has even been held to

include worthless items. See United States v. Akintobi, 159

F.3d 401, 403-04 (9th Cir. 1998) (holding that, although the

term “may refer to something of value,” it “has the broader

meaning of ‘that which is obtained . . . by any transaction,””

and therefore included checks that “ultimately proved

worthless because the accounts backing them up were either

empty or closed” (citation omitted)); see also United States

v. Estacio, 64 F.3d 477, 480 (9th Cir. 1995), as amended on

denial of reh'g (noting that courts “define the term broadly,”

and holding that “proceeds” included a “fraudulently

obtained line of credit, which results in an artificially inflated

bank balance”).

Some Circuits also have interpreted “proceeds” to

include gross receipts of the specified criminal activity rather

than only the net income of that activity; consequently, they

construe the statute broadly to prohibit reinvestment of gross

receipts as expenses of the criminal enterprise. See United

States v. Iacaboni, 363 F.3d 1, 4 (1st Cir.), cert. denied, 543

U.S. 978 (2004); United States v. Grasso, 381 F.3d 160, 169

(3d Cir. 2004), vacated and rev'd on other grounds, 544 U.S.

945 (2005), reinstated in relevant part, Nos. 03-1441 & 03-

9

1442 (May 20, 2005). But see Santos v. United States, 461

F.3d 886, 893-94 (7th Cir. 2006). The Court recently

granted certiorari to resolve the circuit split on this issue.

See United States v. Santos, No. 06-1005 (cert. granted Apr.

23, 2007).

Through such expansive interpretations of terms that

otherwise would appear to limit application of the statute,’

many courts now punish as “money laundering” conduct that

bears virtually no relation to that concept as it is commonly

understood. See United States v. Skinner, 946 F.2d 176 (2d

Cir. 1991) (sale of cocaine sufficient for conviction under the

money laundering statute). “[T]he fluidity of the judicial

understanding of these concepts means that defenses based

on grammar and logic seem doomed to failure.” Mary

McNamara & Edward W. Swanson, Money Laundering:

How Prosecutors Clean up Under 18 U.S.C. Sections 1956

and 1957, 26 Forum 61 (1999), available at

http://www.smhlegal.com/articles/money%20laund.pdf (last

visited August 1, 2007). These interpretations raise serious

concerns that the power of prosecutors to bring a defendant’s

conduct within the statute has been unfairly and improperly

expanded. “Distinctions in the details of 1956 and 1957

should not obscure the prevailing pattern in the way courts

parse the statutes’ abstruse terms: with just occasional

exceptions, over time the statutes’ interpretation has tended

* See also United States v. Valuck, 286 F.3d 221, 226 (Sth Cir. 2002)

(announcing that the Fifth Circuit “subscribes to a broad interpretation of

the word ‘promote’ within the context of section 1956”); United States v.

Leslie, 103 F.3d 1093, 1100 (2d Cir. 1997) (concluding that United

States v. Lopez, 514 U.S. 549 (1995), “did not elevate the government's

burden under the money laundering statute,” and that “[t]he government

need only prove that the individual subject transaction has, at least, a de

minimis effect on interstate commerce”).

10

to favor prosecutors.” Cuellar, 93 J. Crim. L. & Criminology

at 343.°

Cc, Expansive Interpretations of § 1956 Have

Significant Negative Ramifications for the

Criminal Justice System.

These concerns are not merely abstract. An

overbroad reading of the principal federal money laundering

Statute has severe consequences for the many criminal

defendants accused of violating it, and for the criminal

justice system as a whole.’ Section 1956 comes with harsh

penalties: a statutory maximum of up to twenty years’

imprisonment and a fine of either $500,000 or twice the

value of the property involved in the transaction, whichever

is greater. Additionally, although the Sentencing Guidelines

were amended in 2001 in an effort to “tie[ } offense levels

for money laundering more closely to the underlying

conduct,” U.S. Sentencing Guidelines Manual app. C,

amend. 634, reason for amend. (2006), even today money

* Compounding the problem, the United States Attorneys’ Marnual

imposes limited obligations on prosecutors to notify the Department of

Courts Doing?, 17 Ga. St. U. L. Rev. 531, 569 (citing U.S. Attorneys’

Manual §§ 9-150.310-.330, 9-110.101).

7 In the most recent year for which statistics are available, nearly one

thousand defendants were convicted under § 1956—62% of all

defendants convicted of money-laundering related crimes in the federal

system. See 2007 National Money Laundering Strategy 94 tbl. 16 (App.

B), available at http://www.treas.gov/press/releases/docs/nmis.pdf (last

visited August 1, 2007) (citing Dep’t of Justice Office of Policy and

Legislation, Crim. Div. (2004)).

1]

laundering charges can result in a sentence far greater than

that for the predicate offense alone when the predicate

offense is not a drug trafficking crime. Villa, § 11:30 (Supp.

2006); see also Cuellar, 93 J. Crim L. & Criminology, at

348-49 (2001 Sentencing Guidelines amendments left

sentences for money laundering “severe enough that

prosecutors and investigators could use money laundering

charges as substitutes for underlying predicate offense

charges that might be more difficult to prove against

particular defendants”). | Conviction under § 1956

automatically adds two offense levels to the base level

offense applicable to the underlying offense, even if no other

sentencing enhancements apply. U.S.S.G. § 2S1.1(b(2)(B).

In white-collar criminal cases, in particular, the

prospect of a higher sentence allows prosecutors to extract

plea bargains and forfeitures that might not otherwise be

forthcoming and that may well not be in the interest of

justice. See Eric. J. Gouvin, Are There Any Checks and

Balances on the Government's Power to Check Our

Balances? The Fate of Financial Privacy in the War on

Terrorism, 14 Temp. Pol. & Civ. Rts. L. Rev. 517, 534-35

(2005) (noting, in the context of anti-money laundering

provisions in the USA PATRIOT Act, that “prosecutors have

used money laundering violations as a device to leverage up

the criminal consequences for regulated behavior, creating

incentives for the accused to plea bargain”). Because an

indictment with a § 1956 charge risks a heavier sentence

than does an indictment (for the same conduct) without such

* As explained below, even though Petitioner Cuellar’s predicate conduct

was drug-related, had he been convicted under the bulk moncy

smuggling statute, 31 U.S.C. § 5332 (under which he was not even

charged, see United States v. Cuellar, 478 F 3d 282, 300 0.10 (Sth Cir.

2007) (en banc) (Smith, C.J., dissenting)}—the charge most directly

applicable to his conduct—he would have faced a statutory maximum

one-fourth that of § 1956.

12

a charge, prosecutors have a great incentive to use it as a

bargaining chip in pretrial conferences. The mere threat of a

money laundering charge thus can be a powerful weapon in

the prosecutor’s negotiating arsenal.

This vast increase in potential punishment is entirely

unjustifiable if it is not accompanied by greater culpability

on the part of the accused—and, specifically, by the

culpability that Congress meant to punish when it enacted

the statute in the first place (i.c., “traditional” money

laundering). Instead, prosecutors and courts have interpreted

§ 1956 to embrace conduct—as here, “concealment” in an

automobile—that comes nowhere close to presenting the

dangers to society that the money laundering statute was

designed to address. Defendants, including Petitioner here,

should not face enhanced potential sentences for conduct not

meaningfully more blameworthy than the underlying

predicate offenses.

The continued broad and improper application of

§ 1956 has real-world consequences for defendants

convicted under it, as well as for defendants threatened with

money laundering charges. The Fifth Circuit’s further

expansion of § 1956 in this case, if left unreviewed, would

further increase prosecutorial power at the expense of

fairness.

Il MANY DEFENDANTS WHO SUFFER

OVERBROAD APPLICATION OF § 1956

WOULD BE SUBJECT TO PROSECUTION

UNDER OTHER CRIMINAL STATUTES IN

ANY EVENT.

If this Court were to grant certiorari and reverse the

Fifth Circuit’s decision, it would not deprive the government

13

of the means to punish international financial crimes. On the

contrary, numerous other money laundering statutes, cash

reporting statutes, and anti-smuggling statutes’ provide

prosecutors ample tools with which to charge defendants

who carry concealed money across borders.

Petitioner’s case is illustrative. As the dissent in the

Fifth Circuit pointed out, and as Petitioner himself has

conceded, Cuellar’s conduct is squarely captured by the bulk

cash smuggling statute, 31 U.S.C. § 5332, because he

intended to transport cash in excess of $10,000 across an

international border without reporting it. See United States

v. Cuellar, 478 F.3d 282, 299-300 (Sth Cir. 2007) (en banc)

(Smith, CJ., dissenting) (explaining that the legislative

history of § 5332 demonstrates that Congress did not intend

§1956 to capture conduct such as petitioner Cuellar’s). If

charged under § 5332, Cuellar would have faced a statutory

maximum of five years in prison. Instead, having been

accused and convicted of “money laundering,” Cuellar was

exposed to a twenty-year statutory maximum sentence under

§ 1956.

* In addition to §§ 1956 and 1957, these include 18 U.S.C. § 1960

(prohibition of illegal money transmitting businesses); 18 U.S.C. § 982

(criminal forfeiture after conviction under, infer alia, §§ 1956, 1957,

1960); 31 U.S.C. § 5313 (reports on domestic coin and currency

transactions); 31 U.S.C. § 5316 (reports on exporting and importing

monetary instruments); 31 U.S.C. § 5317 (search and forfeiture of

monetary instruments); 31 U.S.C. § 5324 (structuring transactions to

evade reporting -equirement prohibited); 31 U.S.C. § 5332 (bulk cash

smuggling into or out of the United States).

'° Petitioner was sentenced to a term of seventy-cight months, with

supervised release of three years immediately following. Pet. for Cert.

App. 58a-59a.

14

Amicus does not dispute the need for an anti-money

laundering strategy, or for an anti-money laundering

statutory scheme. Rather, Amicus contends that the breadth

of § 1956, as interpreted by the Fifth Circuit, does not

conform to the language of the statute or to Congress’s intent

and leads to unintended and unfair results. This Court

therefore should grant certiorari to resolve the split among

the circuits and to prevent the improper expansion of § 1956.

CONCLUSION

For the foregoing reasons, amicus curiae National

Association of Criminal Defense Lawyers supports

Petitioner Cuellar’s petition for certiorari, and respectfully

requests that the petition be granted.

Respectfully submitted,

JEFFREY T. GREEN

SIDLEY AUSTIN LLP

1501 K Street, NW

Washington, DC 20005

(202) 736-8000

CRAIG D. SINGER

(Counsel of Record)

JOHN E. CLABBY

CHRISTOPHER R. HART

DAVID A. TAYLOR*®

WILLIAMS & CONNOLLY LLP

725 Twelfth Street, NW

Washington, DC 20005

(202) 434-5000

Attorneys for Amicus Curiae

National Association of Criminal

Defense Lawyers.

* Admitted in California only. District of Columbia Bar application

pending; practice supervised by D.C. Bar members pursuant to

D.C. Bar Rule 49(c)(8).

August 3, 2007