# Amicus Curiae Brief — Cuellar v. United States

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0537%3A05

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2008
- **Citation:** 553 U.S. 550

## Text

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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0537%3A05. Public record. Not legal advice.