# Petition for Writ of Certiorari — Loehr v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1992
- **Citation:** 506 U.S. 1020

## Text

| Bupreme ourt, U.
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7 SEP 9 1999
OFFICE OF THE CLERK
In The
Supreme Court of the United States
~~

October Term, 1992
ROBERT LOEHR,
Petitioner,
VS.
UNITED STATES OF AMERICA,

Respondent.

Petition for Writ of Certiorari to the United States Court of
Appeals for the Sixth Cicuit

PETITION FOR WRIT OF CERTIORARI

DAVID A. DODGE
Counsel of Record
DAVID A. DODGE, P.C.
Attorneys for Petitioner
200 N. Division Street
Grand Rapids, Michigan 49503
(616) 459-3850

2607

Ly lata (800) 3 APPEAL « (800) 5 APPEAL « (800) BRIEF 21
ervices, inc.

“

QUESTIONS PRESENTED FOR REVIEW

I. Whether the word “know” in the pre-November, 1991
Sentencing Guidelines included both knowledge and belief, and,
if not, whether the ex post facto clause of the Constitution was
violated when the court computed the petitioner’s Sentencing
Guidelines using a section which did not become effective until
after both the offense and sentencing?

II. Whether a guideline section, promulgated prior to the
enactment of the statute which criminalized petitioner’s
behavior, was correctly applied to petitioner, and whether the
district judge was correct in believing that he did not have the
authority to use a different and less harsh guideline section when
sentencing the petitioner?

III. Whether the Sentencing Guidelines conflict with the
enabling statutes and whether that conflict permits a district
judge to devise a sentence in an unusual case using the statutory
factors rather than the factors mandated by the guidelines?

IV. Whether 18 U.S.C. § 1956(a)(3) is impermissibly
vague and therefore unconstitutional?

V. Whether 18 U.S.C. § 1956(a)(3), as a matterof statutory
construction, authorized sting operations Only as to existing
criminal acts or whether Congress intended to authorize the
authorities to sting individuals whose acts were not previously
Criminal?

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TABLE OF CONTENTS

Page
Questions Presented for Review.................0es0u0. i
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Constitutional Provisions, Statutes and United States

Sentencing Guidelines Involved .................4.. l
Statement OF Whe CAGE cs 6cskeo ae ee eee 3
Reasons for Granting the Writ.............cccccccccns 7

A. Sentencing Guidelines: The Three Level Addition for
“ROWE on oc nukiewiasbaeeee ee eeenas 8

B. Sentencing Guidelines: The Applicability of U.S.S.G.
251 AGM «060 kee’ dcx eee 13

C. Sentencing Guidelines: The Conflict Between the
Guideline Sentencing Scheme and 18 U.S.C. § 3553 14

D. 18 U.S.C. § 1956(a)(3) Is Unconstitutional ...... 17
E. The Scope of the Money Laundering Sting Statute Is

Unclear, and Certiorari Would Be Appropriate to
Interpret This Important Statute................ 23

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Contents

Page

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TABLE OF CITATIONS

Cases Cited:
Bifulco v. United States, 447 U.S. 381 (1980)........... 25
Burns v. United States, 112 S. Ct. 2182 (1991).......... 16
Kolender v. Lawson, 461 U.S. 352 (1983) ............. 18, 19
Ladner v. United States, 358 U.S. 169 (1958)........... 25
Lewis v. City of New Orleans, 415 U.S. 130 (1974) ..... 19
Miller v. Florida, 482 U.S. 423 (1987) ................ 10, 12
Smith v. Goguen, 415 U.S. 566 (1974) ................. 19

United States v. Breque, 964 F.2d 381 (Sth Cir. 1992)
cyte ES 9, 10, 12, 20, 24

United States v. Davern, 937 F.2d 1041 (6th Cir. 1991)
ee. at ala pu Cewwle ans clave ems 6, 15, 16

Sf le Sere Terre eee e LET eee eR Lee eani 16, 17

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Contents
Page

United States v. Hardy, 762 F. Supp. 1403 (D. Hawaii

PE Pee Srey ee Te Te Ty CTT oT eT eT Tee Tees 15
United States v. Loehr, 966 F.2d 201 (6th Cir. 1992)
Spe ARE KALA RERREA URESETRRES © OES Cee 7
United States v. Payne, 962 F.2d 1228 (6th Cir. 1992)
eT Sree ay Pe ey pe ry 11, 12, 20, 24
United States v. Richardson, 925 F.2d 112 (Sth Cir. 1991)
rT rrr ee eer ee ree ere ee 20, 24
Statutes Cited:
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BSR oe Ee ere ge rere ret 6, 14, 25

Contents
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United States Sentencing Guidelines:
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APPENDIX

Appendix A — Order Entered August 21, 1992......... la
Appendix B — Judgment Dated August 21, 1992 ....... 2a

Appendix C — Order and Decision Filed June 10, 1992

l

OPINIONS BELOW

On June 10, 1992, the United States Court of Appeals for the
Sixth Circuit affirmed prtitioner’s conviction for attempted money
laundering in violation of 18 U.S.C. § 1956(a)(3)(B) (6a). On
August 21, 1992, the United States Court of Appeals denied
Petitioner’s Motion for Reconsideration and Motion to Stay the
Mandate of the Case (la, 2a).

STATEMENT OF JURISDICTION

Petitioner, Robert Loehr, now moves this Honorable Court for
a writ of certiorari and review of the J udgment of the United States
Court of Appeals for the Sixth Circuit, entered in the above titled
cause on June 10, 1992 (6a). The jurisdiction of this Court is
invoked under 28 U.S.C. § 1254 (1 ).

CONSTITUTIONAL PROVISIONS, STATUTES AND
UNITED STATES SENTENCING GUIDELINES INVOLVED

Article 1, Section 9, clause 3 of the United States Constitution
provides in relevant part:

No bill of Attainder or ex post facto law shall
be passed.

The Fifth Amendment to the United States Constitution
provides in relevant part:

No person shall be...deprived of life, liberty,
or property without due process of law...

Title 18 U.S.C. § 1956(a)(3)(B) provides:

Whoever, with the intent...

(B) to conceal or disguise the nature, location,
source, ownership, or control of property
believed to be the proceeds of specified
unlawful activity...

conducts or attempts to conduct a financial
transaction involving property represented by
a law enforcement officer to be the proceeds of
specified unlawful activity, or property used to
conduct or facilitate unlawful activity shall be
fined under this title or imprisoned for not
more than 20 years, or both. For purposes of
this paragraph and paragraph (2), the term
“represented” means any representation made
by a law enforcement officer or by another
person at the direction of, or with the approval
of, a Federal official authorized to investigate
or prosecute violations of this section.

18 U.S.C. § 1956(a)(2) provides in relevant part as follows:

For the purpose of the offense described in
subparagraph (B), the defendant’s knowledge
may be established by proof that a law
enforcement officer represented the matter
specified in paragraph (B) as true, and the
defendant's subsequent statements or actions
indicate that the defendant believed such
representations to be true.

Section 2S1.1(a) of the United States Sentencing Guidelines
(U.S.S.G.) provides as follows:

(1) 23, if convicted under 18 U.S.C. 1956
(a)(1)(A) or (a) (2)(A);

(2) 20, otherwise.

Section 2S1.1(b)(1) Guidelines (U.S.S.G.) provides as
follows:

(1) If the defendant knew that the funds were
the proceeds of an unlawful activity involving
the manufacture, importation, or distribution
of narcotics or other controlled substances,
increase by 3 levels.

Section 5A of the United States Sentencing Guidelines
(U.S.S.G.) provides in relevant part for Criminal History Score II:

Level 18 30-37 Months
Level 21 41-51 Months
STATEMENT OF THE CASE

On October 26, 1990, Robert Loehr was indicted in a one
count indictment charging a violation of 18 U.S.C. § 1956
(a)(3)(B). The indictment alleged that on January 30, 1990, Loehr
attempted to conduct an unlawful transaction involving property
represented by a person acting at the direction of a law
enforcement officer to be the proceeds of drug trafficking.

The trial began On March 5, 1991.

The government’s evidence consisted of the following:

1. An incarcerated drug dealer told government agents that
some years ago, he had purchased automobiles from a Kalamazoo,
Michigan auto dealership using drug proceeds. Petitioner was
employed by that dealership at the time, and the drug dealer

ateen eee

4

claimed that the petitioner knew that the automobiles were
purchased using illegal money.

2. The agents determined that petitioner was currently
working as a car salesman at a different dealership than the one
where the previous sales had allegedly occurred. The petitioner did
not have any managerial authority at this new dealership, and his
sales activities were subject to the approval of the dealership’s
upper management.

3. The agents devised a sting operation to determine whether
the petitioner would participate in a sales transaction which was
allegedly financed with drug proceeds.

4. The drug dealer and his girl friend contacted the petitioner
and indicated that they wished to purchase a new vehicle. During
the discussions, statements were made which indicated that at least
some of the purchase price would be coming from drug sales.
These statements were false because the government was
financing and directing the sting operation. There was no
corroboration of the drug dealer's representations, and the
petitioner had no actual knowledge as to whether the
representations were true or false.

5. The purchase negotiations spanned several weeks. Among
other things, the girl friend asked that the purchase documents
contain the name of a third party. The petitioner agreed, and at least
some of the documents were prepared using that third party’s
name. The government contended that the petitioner intended to
participate in a scheme to conceal the actual purchaser’s identity.

6. In January of 1990, the petitioner submitted some
documents to his management relating to the sale of a car to the
drug dealer and his girl friend. There was conflicting testimony as

5

to how much more had to be done to complete the transaction. The
petitioner argued that the transaction was incomplete because it
had not been approved by management and because additional
forms were required. Several employees of the dealership testified
that the transaction was between 50% complete to almost totally
complete.

7. On January 30, 1990, the girl friend appeared at the
dealership and gave the petitioner $20,000 in cash. This money
was provided by government agents. The petitioner was arrested
while he was counting the money.

On March 8, 1991, a jury convicted the petitioner for the one
charged count.

The presentence investigator determined that the base offense
score was 20, pursuant to U.S.S.G. 2S 1.1 (a)(2). Three points were
added on the grounds that the petitioner “knew that the funds were
the proceeds of an unlawful activity involving the...distribution of
narcotics..." U.S.S.G. 2S1.1 (b)(1). Two points were subtracted for

~eptance of responsibility. U.S.S.G. 3El.1. The criminal history
ss" was II. U.S.S.G. 4A. These computations produced
sentencing guidelines of 41-51 months. U.S.S.G. 5A.

On May 20, 1991, petitioner was sentenced to 41 months in
custody, to be followed by a 2 year period of supervised release.

A timely appeal was taken to the United States Court of
Appeals for the Sixth Circuit. The Petitioner argued that his
conviction should be reversed or his sentence should be modified
for the following reasons:

A. There was insufficient evidence to support the conviction
for attempted money laundering. Specifically, petitioner argued

a

6

that he had not taken a sufficient overt step towards the completion
of the money laundering act and that, as a result, the government
had not proved its case.

B. Loehr argued that the money laundering sting statute was
unconstitutional because it did not sufficiently notify citizens that
previously non-criminal actions were now criminal, because the
statute did not define or limit the type of representations made by
law enforcement officers, and because the statute vested too much
discretionary authority in law enforcement officers to apply the
Statute according to their individual predilections rather than upon
some defined basis.

C. 18 U.S.C. § 1956 (a)(3), the money laundering sting statute,
was a newly enacted statute, and petitioner was apparently its first
target in the Western District of Michigan. Petitioner was not a
drug dealer, and he was receiving no compensation other than a
$50-$100 sales commission for the car sale. Petitioner argued that
Congress did not intend to include individuals such as himself
within the scope of the sting statute. Petitioner further argued that
the “representation” language in 18 U.S.C. § 1956 (a)(3) did not
include a situation where the representation was incredible and/or
where there was no evidence showing that the petitioner believed
the drug related representations made by the individual acting at
the government's behest.

D. Petitioner argued that there was a Jencks Act violation and
that evidence was admitted in violation of Fed. R. Evid. 404 (b).

E. Finally,petitioner raised a number of sentencing guideline
issues. Just prior to his sentencing, the Sixth Circuit had decided
United States v. Davern, 937 F.2d 1041 (6th Cir. 1991). In Davern,
a panel of the court ruled that the a portion of Sentencing
Guidelines were unconstitutional because they were in conflict
with 18 U.S.C. § 3553. Davern was vacated during the appeal

7

process and accepted for en banc review.

Petitioner also challenged the use of a base level of 20,
pursuant to U.S.S.G. 2S1.i ‘a), and the three levels that were added
pursuant to 2S1.1 (b), on the grounds that petitioner “knew” that
the money was drug related.

On June 10, 1992, the Sixth Circuit affirmed petitioner’s
conviction and sentence. (6a) This decision is reported as United
States v. Loehr, 966 F.2d 201 (6th Cir. 1992). The Court ruled that
Loehr’s acceptance of the $20,000 in cash and the completion of at
least some of the documents were substantial steps toward the
execution of the criminal act, justifying his conviction for attempt.
(10a). The Court further ruled that the statute was not vague
because it clearly applied to anyone who had the intent to engage in
the proscribed conduct. (lla). As to the Sentencing Guideline
issues, the Court concluded that the district court’s decision to use
U.S.S.G. 2S 1.1 to determine the base guidelines was not clear error.
(12a) The three level aggravator was appropriate because “the
evidence was sufficient to prove that the defendant had the
necessary knowledge or belief that the source of the funds for the
transaction was from drug proceeds.” (12a). The remainder of
petitioner’s claims were dismissed without specific consideration
(12a.).

Petitioner filed a timely petition for reconsideration and
suggestions for rehearing in banc. This petition was denied without
explanation on August 21, 1992 (la, 2a).

REASONS FOR GRANTING WRIT

There are five reasons for granting the writ. Three reasons
relate to the United States Sentencing Guidelines, one reason is a
significant question of statutory interpretation, and the fifth reason
addresses the constitutionality of the money laundering sting

8

statute, particularly as it is applies to individuals who are neither
professional drug dealers nor professional money launderers.

A. SENTENCING GUIDELINES: THE THREE LEVEL
ADDITION FOR “KNOWLEDGE”

There is a conflict between the Fifth and Sixth Circuits as to
whether the three level addition should apply to a case such as
petitioner’s. The issue involves both an interpretation of a specific
guideline section and a constitutional ex post facto question. This
conflict between Circuits about an important legal issue justifies
this Court’s attention and the granting of the writ.

U.S.S.G. 2S 1.1(b)(1) provides that three levels can be added to
a defendant’s base offense score under certain circumstances. In
January of 1990, when the offense was committed, the guideline
section read as follows:

(1) If the defendant knew that the funds were
the proceeds of an unlawful activity involving
the manufacture, importation, or distribution
of narcotics or other controlled substances,
increase by 3 levels.

In November of 1991, this section was amended by adding the
language “or believed”. The section then read “if the defendant
knew or believed that the funds...”. Amendment 378 to the United
States Sentencing Guidelines. The Sentencing Commission
explained the reason for the modification:

This amendment revises the guideline to
reflect the enactment of subsection (a)(3) of 18
U.S.C. 1956 that authorizes undercover
“sting” operations in money laundering cases.
Such cases differ from those prosecuted under

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|

9

subsection (a)(l) in that the money being
laundered is not actually criminal proceeds,
but is government “sting” money that an
undercover officer represents to be criminal
proceeds. In all other respects, subsection
(a)(1) and (a)(3) are the same. The effective
date of this amendment is November 1, 1991.
(emphasis in original).

Amendment 378 to the United States Sentencing Guidelines.

The Fifth Circuit addressed the meaning and applicability of
the amendment in United States v. Breque, 964 F.2d 381 (Sth Cir.
1992). The Breque case was decided five days after the Sixth
Circuit rendered its decision in the instant case.

In Breque, the Internal Revenue Service and the United States
Customs Service conducted a joint sting operation. An IRS agent
approached the defendant and represented that she was acting on
behalf of a Florida based organization which needed to exchange
money.

A number of transactions occurred between June of 1989 and
June of 1990 in which dollars were given to the defendant. The
defendant changed those dollars into pesos and charged a fee for
his services. The defendant was arrested after the last transaction.
Among other things, he was convicted of conspiring “to launder
money represented by a law enforcement officer to be the proceeds
of specified unlawful activity (narcotic sales), in violation of 18
U.S.C. 1956 (a)(3)(C).”

The defendant was sentenced to 55 months in prison, in
accordance with the procedures mandated by the United States
Sentencing Guidelines. One of the components of the guideline
computation was a three level increase, pursuant to U.S.S.G.
2S 1.1(b)(1).

10

Breque argued that the three level increase was inappropriate
because he did not “know” that the money was the proceeds of
unlawful activity. In fact, the money was not proceeds of such
activity, but legitimate government funds.

The government argued that the section only required a
“subjective certainty” on the defendant’s part and that accordingly,
the objective truth of the fact was irrelevant.

The Fifth Circuit held that the three level addition was in error
and vacated and remanded the sentence.

In reaching this decision, the Court noted the 1991
amendment to the guidelines, which allowed the adder if the
defendant “knew or believed” that the money laundered had an
illegal source. The Court first concluded that the 1991 amendment
made a substantive change in the guidelines. Accordingly, the
Court reasoned that it would be inappropriate to apply the new
section to a defendant whose crime pre-dated the guideline change.
Cf., Miller v. Florida, 482 U.S. 423 (1987).

The Court then further concluded that the word “believed”
was added because the word “know” was insufficient to cover sting
operations. Since the money was in fact legal money, the defendant
could never “know” that the money had an illegal source. At most,
a defendant could only “believe” that the source was illegal.

Accordingly, since the defendant could not “know” that the
source was illegal and since knowledge was the standard for the
three point aggravator, the three points could not be added when
computing the guideline sentence for a defendant whose sting
related offense pre-dated November 1, 1991.

If Breque were applied to petitioner, his sentence would have

1]

to be vacated and remanded for re-sentencing. This remand would
almost certainly result in a lower sentence because the petitioner’s
guidelines would change from 41-51 months (Level 21) to 30-37
months (Level 18). U.S.S.G. 5A. These guideline ranges do not
overlap one another. Moreover, the district judge originally
sentenced the petitioner at the bottom of the applicable guideline
range; if the district court used the same procedures with the
revised guidelines, the difference would be 11 months.

There is another substantive impact involved in this potential
sentence modification. 18 U.S.C. § 4046 authorizes a “shock
incarceration program.” This program allows an individual to
serve a prison sentence of between 12-30 months by participating
in a6 month, alternative, boot camp program. Petitioner probably
qualifies for the program, except that his sentence exceeds the
Statutory range. However, if the petitioner is correct and if the
sentence is modified to 30 months, he could qualify for this
specialized program and could satisfy his sentence much more
quickly than he can under current conditions. This rather unique
aspect to petitioner’s case further supports this Court’s
consideration.

The conflict between the Fifth and Sixth Circuits is illustrated
by considering two Sixth Circuit cases: the instant case and United

States v. Payne, 962 F.2d 1228 (6th Cir. 1992).

In Payne, a money laundering sting operation took place
between July of 1988 and April of 1989. The defendants were
convicted and sentenced in June of 1991 according to the
procedures mandated by the United States Sentencing Guidelines.
Three levels were added using U.S.S.G. 281.1 (b)(1). One of the
defendants challenged this aggravator on the grounds that the
money was not actually drug money. The Circuit Court affirmed,
but in doing so applied the guideline “knew or believed” language
even though that language did not take effect until five months

12

after the defendants were sentenced. Specifically, the Court held
that “the Guideline indicates that as long as the defendant believes
that the funds were the proceeds of unlawful activity, the Guideline
applies.” 962 F.2d at 1235.

The instant case continues the same approach in that the Court
upheld the aggravator using the same “knew or believed” language
(12a).

Neither Payne nor the instant case addressed the issue reached
by the Breque court of whether the November, 1991 guideline
amendment was substantive and whether there was an problem in
applying the change to an offense completed prior to the
amendment’s effective date.

In Miller v. Florida, 482 U.S. 423 (1987), this Court reversed a
decision of the Florida courts which applied a sentencing guideline
enacted after the crime which was more detrimental to the
defendant than the guideline which was in effect at the time the
crime was committed.

As the Fifth Circuit reasoned in Breque, the guideline change
at issue in the instant case substantively and detrimentally changed
the guideline rules. The “believe” language was specifically added
to deal with the statute which related to petitioner and specifically
made the three point aggravator applicable to petitioner. Prior to
the change, the aggravator would have been inappropriate.

Thus, the Sixth Circuit’s reasoning in Payne and the instant
case is not only contrary to the Fifth Circuit’s decision in Breque,
but contrary to a decision of this Court. Certiorari should be
granted to remedy this conflict.

13

B. SENTENCING GUIDELINES: THE APPLICABILITY OF
U.S.S.G. 281.1 (a)(2)

U.S.S.G. 2S1.1 was originally promulgated to apply to
individuals who were caught in the act of violating the money
laundering laws. The penalties are relatively harsh: a first offender
faces a base guideline offense level of 20, which translates to a
sentence between 33-41 months. U.S.S.G. 2S1.1 (a) and U.S.S.G.
5. This mandatory minimum penalty is a creature of the Sentencing
Commission and was not mandated by Congress.

The sting amendment potentially applies to an entirely
different group of defendants: individuals who were not violating
the money laundering statutes until offered an opportunity to do so
by government agents or those acting at the direction of those
agents.

The level of culpability of such individuals might be far
different from the individuals Congress had originally targeted.
The level of culpability of such individuals might be far different
from the issues which the Sentencing Commission considered
when it originally promulgated the guidelines.

In January of 1990 when the petitioner committed the offense
or in May of 1991 when he was sentenced, no change had been
made to the guidelines to consider the potential impact of the 1988
amendments to 18 U.S.C. § 1956.

Petitioner argued that the district judge was free to consider
other money laundering guideline sections in evaluating his
offense. The district judge did not believe that he had such
authority, and the Sixth Circuit dic not address the issue .

This is a problem which regularly arises when interpreting the
guidelines. The guidelines have been frequently amended since
their original passage, and numerous situations arise where the

14

offense conduct does not neatly fit within the guideline definitions.
Although the guidelines themselves provide some guidance, the
scope of a district judge’s authority is hardly clear.

For this reason, it would be appropriate for this Court to accept
this case and to establish rules which will govern and better define
numerous sentencing decisions that are being made daily by
district judges.

C. SENTENCING GUIDELINES: THE CONFLICT
BETWEEN THE GUIDELINE SENTENCING SCHEME
AND 18 U.S.C. § 3553

There is a substantial dispute among members of the Federal
Judiciary as to the scope of the guidelines and the ability of judges
to respond to unique situations which do not fit neatly within the
guidelines or the statutory scheme.

This case illustrates this dispute and disagreement, and, for
that reason, it would be appropriate to grant certiorari so that this
on going controversy can be resolved.

18 U.S.C. § 3553 (a) states that “the court shall impose a
sentence sufficient, but not greater than necessary, to comply with
the purposes set forth in paragraph (2) of this subsection.”
Paragraph (2) states that the court shall consider deterrence, public
protection, the needs of the defendant, the seriousness of the
offense, and appropriate punishment.

18 U.S.C. § 3553 (b) states that the court shall impose the
sentence mandated by the guidelines “unless the court finds that
there exists an aggravating or mitigating circumstance of a kind, or
to a degree, not adequately taken into consideration by the
Sentencing Commission...”

o-

15

The Sentencing Guidelines mandate a procedure whereby the
guideline sentence is computed and where the court thereafter
considers whether a departure of some kind is appropriate.
U.S.S.G. 1B1.1

On June 20, 1991, after petitioner’s sentencing but prior to the
filing of petitioner’s appeal, the United States Court of Appeals for
the Sixth Circuit decided the case of United States v. Davern, 937
F.2d 1041 (6th Cir. 1991). Davern addressed the question of
whether the guideline approach comported with the enabling
statute. In a 2-1 decision, the Davern panel held that the guideline
section was invalid because it reversed the emphasis mandated by
statute. The majority felt that a court should first determine
whether or not the case was in the heartland of cases addressed by
the Sentencing Commission. If not, the court should be allowed to
impose a sentence which comports with the factors mandated by 18
U.S.C. § 3553 (a). On the other hand, if the case was within the
heartland, then the Court could apply the guidelines as mandated
by statute. 937 F.2d 1043-1047. Chief Judge Merritt’s thoughtful
opinion examined the legislative history and scholarly articles
including an excellent overview by university professors and
editors Freed & Miller, published at 3 Fed. Sent. R. 237 (1991).

This type of concern has also been reflected by other federal
judges who have expressed concern with what they view as
guideline inflexibility and the failure of the guidelines to adhere to
the statutory mandate. See, e.g., United States v. Harrington, 947
F.2d 956, 966-968 (D.C. Cir. 1991); United States v. Kikumura,
918 F.2d 1084, 1119-1121 (3d Cir. 1990) (and the cases there
cited); United States v. Gutierrez, 908 F.2d 349, 353-355 (8th Cir.
1990).

The petitioner’s appeal argued that Davern controlled and was
correctly decided. The petitioner further argued that his case was
not in the heartland in that there was no legislative history to

16

indicate that someone like himself was the primary target of the
statutory amendment. Accordingly, petitioner sought re-
sentencing in a circumstance where the court would first look to
the uniqueness of his case and then, secondarily, to the guideline
rules.

On September 26, 1991, the Sixth Circuit vacated the Davern
decision and granted en banc review.

The en banc decision had not been reached when petitioner’s
appeal was decided, and the Sixth Circuit opinion did not address
the question.

On July 21, 1992, in a 10-4 decision, the court vacated the
Davern decision and upheld the guideline sentencing scheme.
United States v. Davern, 1992 WL 167526 (6th Cir. 7/21/92).

The majority held that the guidelines are “a sentencing
imperative” and that a court cannot deviate other than by making a
departure as authorized by 18 U.S.C. 3553 (b). In support, the
majority cited Burns v. United States, 112 S.Ct. 2182, 2184-2185
(1991) where, in a different context, this Court stated that “the only
circumstance in which the district court can disregard the
mechanical dictates of the Guidelines is when it finds that there
exists an aggravating or mitigating circumstance of a kind or to a
degree not adequately taken into consideration by the Sentencing
Commission in formulating the guidelines.”

The Sixth Circuit went on to reason that a sentencing judge
must follow the format outlined at U.S.S.G. 1B1.1 by first
determining the guideline sentence and then determining whether
the court should depart from such a sentence.

The dissent argued that the guideline drafters had exceeded
the authority granted them by the enabling statutes found in Title

17

18 and Title 28. This created a conflict between the guidelines and
the enabling statute, and, in such a situation, the enabling statute
should control. The dissent cited a long list of scholarly articles
which expressed the same views as the dissent. 1992 U.S. App.
Lexis 16564, *43, n. 11. The dissent concluded that the majority
erred and that the guideline structure was flawed because the
Sentencing Commission recognized some, but not all, of the
requirements mandated by Congress,

The Davern debate is a microcosm of a debate which has great
significance for the administration of justice.

This Court should use this case as a basis for addressing this
debate and for expressing its views on the relationship of the
various authorizing statutes to the guidelines and on the authority
of sentencing judges to deal with uncommon Situations or with
factors which have historically justified sentencing leniency.

This debate is too important to be i gnored.
D. 18 U.S.C. § 1956 (a)(3) IS UNCONSTITUTIONAL

18 U.S.C. § 1956 was amended, effective November 18, 1988,
to allow law enforcement agencies to carry Out money laundering
sting operations. 18 U.S.C. § 1956 (a)(3); 102 Stat. 4392, Pub. L.
100-690. The major differences between this new statutory section
and the previous version of the statute were the following:

1. Prior law required that the laundered property actually be
the proceeds of “specified unlawful activity”, as that term is
defined in 18 U.S.C. § 1956 (c)(7). The amended Statute allows a
conviction even though the allegedly laundered property has a
legal source.

2. The amended statute authorizes law enforcement officers to

18

directly or indirectly represent that property is either “the proceeds
of unlawful activity or property used to conduct or facilitate
specified unlawful activity.” 18 U.S.C. § 1956 (a)(3).

3. The statute does not provide the parameters of the sting, the
nature of the representation made by law enforcement officers or
third parties acting at their direction or the nature of the sting’s
targets.

The amended statute carries a 20 year penalty.

Petitioner challenges the constitutionality of the statute for the
following reasons:

1. The statute does not sufficiently notify citizens regarding
the potentially serious criminai implications of their acts.

2. The failure to define or limit the type of representations
made by law enforcement officers or their designees makes the
statute unconstitutionally vague.

3. The statute is unconstitutionally vague because it vests too
much discretionary authority in law enforcement officers to appiy
the money laundering statutes based upon their individual
predilections rather than upon some defined basis.

4. All of these flaws are particularly important because the
new statutory section criminalized behavior that was previously
non-criminal. The pre 1988 law required that the money actually
be the proceeds of illegal activity. The new law permits sting
operations where the money, in fact, comes from the government.

This Court addressed a similar problem in Kolender v.
Lawson, 461 U.S. 352 (1983). In Kolender, this Court examined a
California statute which required individuals who loiter or wander

19

the streets to provide “credible and reliable” information and
account for their presence when required to do so by a law
enforcement officer. Lawson had been arrested several times and
convicted once for violating the statute. He challenged the statute
and sought a declaratory judgment that the statute was
unconstitutional.

This Court agreed and held that the statute was indeed
unconstitutional. This Court stated that any penal statute must
meet two basic criteria:

1. It must define the offense with sufficient definiteness so
that ordinary people can understand what conduct is prohibited;

2. It must define the offense in a manner which does not
“encourage arbitrary and discriminatory enforcement.” 461 U.S. at
357 and the cases there cited.

This Court further noted that the primary concern is that the
legislature must establish “minimal guicelines to govern law
enforcement.” 461 U.S. at 358. See, also, Smith vy. Goguen, 415
U.S. 566, 574 (1974).

The California statute was flawed because it vested “virtually
complete discretion in the hands of the police to determine whether
the suspect has satisfied the statute and must be permitted to go his
way in the absence of probable cause to arrest. “ 461 U.S. at 358.
Accordingly, because the statute did not define what was intended
by the requirement that a suspect provide “credible and reliable”
information, the statute encouraged arbitrary and unpredictable
enforcement. The statute provided absolutely no restraint on the
police’s power to arrest and charge a person with a violation. Cr..
Lewis v. City of New Orleans ,415 U.S . 130, 135 (1974).

20

The statute is flawed in this case for a very similar reason. 18
U.S.C. 1956 (a) (3) legislatively authorizes law enforcement
agencies to conduct sting operations. The sting is carried out when
the law enforcement officer of a designee represents that property
is either the “proceeds of specified unlawful activity or property
used to conduct or facilitate specified unlawful activity.” 18 U.S.C.
§ 1956 (a)(3).

The statute is unconstitutional because the legislature did not
specify any minimal guidelines to govern law enforcement. A law
enforcement official has absolutely no guidance as to who should
be targeted, how the sting should be constructed, and what
safeguards, if any, should be instituted to protect an otherwise
unaware citizen from arbitrary or discriminatory enforcement.

The facts of this case clearly illustrate the due process
concern. The petitioner was not a mainstream defendant. He was
not a drug dealer; he was not a professional money launderer; he
was not separately compensated for participating in the allegedly
tainted transaction. Cf., cases such as United States v. Breque, 964
F.2d 381 (Sth Cir. 1992), United States v. Payne, 962 F.2d 1228 (6th
Cir. 1992), United States v. Richardson, 925 F.2d 112 (Sth Cir.
1991) and United States v. Hardy, 762 F.Supp. 1403 (D. Hawaii,
1991), which illustrate the application of the sting statute to
individuals who are laundering money on a regular basis.

There is no legislative history to the statute and no indication
as to whether Congress intended to target professional money
launderers by making it easier for law enforcement officials to
pursue individuals who were in the business or whether Congress
intended to include any individual selected by law enforcement,
even if that individual was not presently involved in money
laundering.

This lack of standards and direction points out the

21

constitutional problem. Since Congress did not establish any
standards for the legislatively authorized sting, it created a
vagueness which is violative of due process; the statute on its face
permits law enforcement officials full rein to “pursue their
individual predilections”.

A second constitutional problem is the vagueness of the
“representation” section of the statute. Petitioner’s complaint is
that Congress did not sufficiently define the type of representation
that exposes an individual to criminal liability. Specifically, the
question is whether a representation which is incredible,
unbelievable, or doubtful can form the basis of criminal liability.

The underlying statutory assumption is that the representation
is false: the government, by definition, is representing that legal
money is in fact illegal. If the defendant believes the government
and the defendant’s actions are based upon that belief, conviction

follows.

However, the flaw arises because Congress did not exculpate
or otherwise address defendants who do not believe the false
statements and/or whose actions are not based upon the
government's representation or who feel that they can act legally
because they believe that the representation is false and that ille gal
money is not really involved.

Petitioner’s case illustrates the point. Petitioner had ample
reason to doubt or disregard the representations made about the
source of the proceeds. The drug dealer had been in jail for several
years, and petitioner had no reason to believe that he had any drugs
or the proceeds of any drugs left over from the drug dealer’s
previous illegal dealings. Petitioner had no corroboration for the
statements that drugs were involved. For all petitioner knew, the
statements could be false.

22

Moreover, and most importantly, the government in this case
constructed the sting so that the petitioner might easily believe that
the representation was false. Petitioner was in a business where
puffing is common. It is commonplace for customers to lie about
the amount of money that is available to buy the car, in the hopes
that the lie will either induce the car dealer to lower the price or to
sweeten the deal. As a result, any experienced car salesman will
tend to discount these statements, particularly if the facts suggest
that the statements are being used as a negotiating ploy.

In this case, the government did not come to petitioner and
propose a simple and straightforward deal. In other words, no one
approached petitioner and said “here is $20,000; this money comes
from a drug deal; sell me acar”; no one approached petitioner and
offered him money to arrange the deal. Rather, the government
constructed the sting so that it extended over a number of weeks.
Petitioner’s only compensation was his regular commission from
the sale. Petitioner was told that the parties were trying to sell
narcotics but were having trouble making the sale. Efforts were
made to minimize the price of the car. In other words, the entire
sting could have been construed as just another ploy by a customer
to get a better deal.

This ambiguity was made possible by Congress’s failure to
live up to its mandate and to specify standards by which law
enforcement officers should act.

Finally, the statute did not put petitioner or others similarly
situated on notice that his actions violated federal criminal law.
The lack of notice was caused by the overly vague definition of the
word “representation” which permits criminal liability regardless
of whether the defendant believed the representation or whether
the allegedly criminal acts had anything to do with the
representation made. It is also caused by the failure to define the
parameters of the legislatively authorized sting.

23

Finally, the constitutionally significant lack of notice is
caused because money laundering is not an easily definable
concept, particularly to a lay citizen who is neither a drug dealer
nor a professional money launderer.

A drug dealer knows he is committing a crime. A person who
takes money to conceal the source of funds knows that his acts are
illegal. On the other hand, a car salesman who is told a questionable
story and who is not being separately compensated for his acts does
not have adequate notice. The vagueness thus makes it possible for
someone to break the law even if that person honestly believes that
the representation is false.

The Sixth Circuit did not really deal with this issue. The Court
merely held that the statutory prohibition is clear and that someone
like petitioner is guilty if he intentionally enters into the prohibited
transaction. (11a)

This Court should grant certiorari because this is an important
criminal statute which has yet to be authoritatively interpreted. If
petitioner is correct, his rights and the rights of many others
similarly situated have been or will be violated. The question is
sufficiently important to warrant this Court’s consideration.

E. THE SCOPE OF THE MONEY LAUNDERING STING
STATUTE IS UNCLEAR, AND CERTIORARI WOULD BE
APPROPRIATE TO INTERPRET THIS IMPORTANT
STATUTE

Prior to 1988, the money laundering statute exclusively
targeted individuals who were actually laundering illegal money.
These individuals included professional drug dealers, professicnal
money launderers, or other individuals or entities who received
compensation for assisting others to conceal illegal money.
Neither the pre-1988 statute nor the cases dealt with ordinary

24

citizens whom the government might be able to tempt if that
otherwise innocent citizen was targeted by agents.

There are two possible interpretations of the 1988
amendment. The first interpretation is that Congress only intended
to give law enforcement officials an additional tool to pursue the
types of offenders who had already been targeted by the statute. 18
U.S.C. § 1956 (a)(1) and (a)(2). The existing statutes required law
enforcement officials to catch the targets in the act; the amended
statute would allow law enforcement officers to aggressively
pursue these often elusive professionals by affirmative actions.
The reported cases indicate that this is indeed the more common
approach taken by law enforcement. See, e.g., United States v.
Breque, 964 F.2d 381 (Sth Cir. 1992), United States v. Payne, 962
F.2d 1228 (6th Cir. 1992), United States v. Richardson, 925 F.2d
112 (Sth Cir. 1991) and United States v. Hardy, 762 F.Supp. 1403
(D. Hawaii, 1991).

The second possible interpretation, which is at the heart of the
government’s prosecution in the instant case, is that Congress
expanded the scope of the statute and authorized the government to
operate stings against any citizen, regardless of whether that
citizen was engaging in the kinds of conduct that would expose that
citizen, if caught, to prosecution under the existing money
laundering provisions.

The language of the statute is not clear, and there is no
legislative history on the subject. The broad and expansive
interpretation of criminal liability sought by the government
should not be adopted without some direct indication from
Congress that the expansive interpretation is what Congress
intended. Such a position is consistent with previous decisions of
this Court which have held that when a criminal statute is vague
and the intent of Congress unclear, the Court should adopt the
interpretation which limits rather than expands the scope of

Ee

25

criminal liability. See, e.g., Bifulco v. United States, 447 U.S. 381
(1980) and Ladner v. United States, 358 U.S. 169 (1958).

A second statutory interpretation question is suggested by the
previous section on constitutionality. “Representation”, as that
word is used in Section § 1956 (a)(3), is defined very broadly and
does not address the issue of whether the defendant believed the
representation made by the law enforcement official.

Petitioner argued below that the government had to establish
that he believed the representation made by the drug dealer and that
the government's failure to do so flawed his conviction. In support
of his argument, he pointed to a 1990 amendment to 18 U.S.C. §
1956 (a)(2) which specifically conditioned criminal liability upon
a determination that the defendant’s subsequent words or actions
indicate that the defendant believed that the representations were
true.

The Sixth Circuit did not address this argument, but it is an
important issue worthy of this Court’s review.

CONCLUSION

WHEREFORE, Petitioner respectfully prays that this Court
grant certiorari and resolve the conflict between the Circuits on the
applicability of the amended language in the United States
Sentencing Guidelines, Sect. 2S1.1(b)(1) to a sting operation’s
target whose offense occurs prior to November 1, 1991. Petitioner
further prays that this Court grant certiorari to consider the
applicability of the minimum sentence required by the money
laundering guideline rules to a factual circumstance which was not
a crime at the time that the rules were enacted. Petitioner prays that
this Court grant certiorari to resolve a conflict among Circuit
judges as to the relationship between 18 U.S.C. § 3553 and the
United States Sentencing Guidelines. Petitioner also prays that this
Court grant certiorari to consider the important question of the

26

scope of the new federal money laundering sting statute and
whether it applies to citizens who are not actively involved either
in the drug tradeor with money laundering. Finally, Petitioner
prays that this Court grant certiorari to consider whether the money
laundering sting statute is unconstitutional because it provides
insufficient guidance to law enforcement officials.

Respectfully submitted,

DAVIDA. DODGE
Counsel of Record
DAVIDA. DODGE, P.C.
Attorneys for Petitioner

la

APPENDIX A — ORDER ENTERED AUGUST 21, 1992

No. 91-1655

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

ROBERT LOEHR,
Defendant-Appellant.
ORDER

The appellant moves to stay the issuance of the mandate
pending application for a writ of certiorari to the Supreme Court.

Upon consideration, it is ORDERED that the motion be, and it
hereby is, DENIED.

ENTERED BY ORDER OF THE COURT

Leonard Green, Clerk

2a
APPENDIX B — JUDGMENT DATED AUGUST 21, 1992

No. 91-1655

UNITED STATES COURT OFAPPEALS
FOR THESIXTH CIRCUIT

UNITED STATES OFAMERICA,

Plaintiff-Appellee,

ROBERT LOEHR,
Defendant-Appellant.
BEFORE: Nelson and Boggs, Circuit Judges; Keupansky, Senior
Circuit Judge
JUDGMENT

ON APPEAL from the United States District Court for the
Western District of Michigan at Grand Rapids.

THIS CAUSE was heard on the record from the district court
and was argued by counsel.

ON CONSIDERATION WHEREOF, it is ordered that the
judgmentof the district court is affirmed.

ENTERED BY ORDER OF THE COURT
Leonard Green, Clerk

Issued as Mandate: August 21, 1992

3a

Appendix B
COSTS: None

| LE $
PRM Srrcerdtaestgkcuae $
NE etnies: $
A True Copy.
Attest:
Sue Johnson

Deputy Clerk

4a

APPENDIX C — ORDER & DECISION FILED
JUNE 10, 1992

No. 91-1655

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

ROBERT LOEHR,
Defendant-Appellant.
ORDER

BEFORE: NELSON and BOGGS, Circuit Judges; and
KRUPANSKY, Senior Circuit Judge.

The Court having received a petition for rehearing en banc, and
the petition having been circulated not only to the original panel
members but also to all other active judges of this court, and no
judge of this court having requested a vote on the suggestion for
rehearing en banc, the petition for rehearing has been referred to the
original hearing panel.

The panel has further reviewed the petition for rehearing and
concludes that the issues raised in the petition were fully considered
upon the original submission and decision of the case. Accordingly,
the petition is denied.

Sa
Appendix C
ENTERED BY ORDER OF THECOURT

Leonard Green, Clerk

6a

Appendix C

No. 91-1655

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

ROBERT LOEHR,
Defendant-Appellant.

On Appeal from the United States District Court for the Western
District of Michigan

Decided and Filed June 10, 1992

Before: NELSON and BOGGS, Circuit Judges; and
KRUPANSKY, Senior Circuit Judge.

KRUPANSKY, Senior Circuit Judge. Appellant, Robert Loehr
(defendant), appealed the district court’s judgment convicting him
of attempted money laundering in violation of 18 U.S.C. §
1956(a)(3)(B) and the imposed sentence of 41 months
incarceration, two years of supervised release, and a mandatory
special assessment fee of $50.00 pursuant to the November 1990
United States Sentencing Guidelines (U.S.S.G.). The defendant
asserted several assignments of error on appeal.

‘i

7a

Appendix C

The defendant was acar salesman in Grand Rapids, Michigan.
Law enforcement personnel became aware of appellant from his
past relationship with a convicted drug trafficker, Credell “Petey”
Carpenter (Carpenter). Carpenter advised Special Agent Sanford
Simons (Simons) that the defendant had sold him and his girlfriend,
Chrystal Bell (Bell), vehicles in 1986 and 1987 knowing that they
were purchased with the proceeds from drug transactions. Further,
Carpenter revealed that Loehr knew him to be a drug dealer.

With the assistance of Carpenter and Bell, Simon initiated a
“sting” investigation to determine if Loehr was laundering money
through his employer’s car dealership. The sting required that
Carpenter and Bell attempt the purchase of an automobile after
clearly informing the defendant that the purchase price was to be
paid from drug proceeds. Further, the purchase required that Loehr
title the vehicle in the name of a fictitious third party.

After he was contacted by Bell and Carpenter and advised that
the vehicle would be purchased with drug money, the defendant
agreed to sell Carpenter a selected automobile for cash without
executing an IRS Form 8300 evidencing a cash sale in excess of
$10,000 and to title the vehicle in a fictitious name. The defendant
prepared the requisite paper work, i.e., apurchase agreement signed
by Bell in a fictitious name. He presented the sales agreement to
David Delaat, Jr. (Delaat, Jr.), the general manager of the
automobile dealership, who typed the information onto the proper
form and completed the other necessary purchase documentation,
such as the state registration application, the odometer statement,
and the temporary registration. Delaat, Jr. noted that the driver’s
license number and proof of insurance were missing.

On the day of the transaction, Bell arrived at the dealership
with an undercover agent and gave the defendant $20,000 in cash.

8a

Appendix C

Loehr accepted the money and told Bell she could take possession
of the car that day. Thereafter, Simon and another special agent
entered the dealership and found the defendant in a windowless
room where he was in the process of counting the money. Loehr was
later indicted and charged with attempted moneylaundering in
violation of 18 U.S.C. § 1956(a)(3)(B).

During the jury trial, three witnesses testified concerning the
paperwork required to complete an automobile transaction. Delaat,
Jr. testified that when the purchase agreement was presented to him
for typing, the transaction was completed. Craig Brockette, the
owner of the dealership, stated that the transaction in the instant
action was near completion. David Delaat, Sr., the business
manager, testified that the transaction in the instant action was over
50% completed.

In order to prove that the defendant knew Carpenter and Bell in
the past and that Carpenter was a drug dealer, the court permitted the
testimony of various witnesses who described Loehr’s past
interactions with Carpenter. Agent Simon testified that in 1986 and
1987 the defendant worked at his father’s car dealership where he
met Carpenter and Bell. Joshua Simpson, who had previously
worked with the defendant at his father’s car dealership, testified
that Loehr knew Carpenter was a drug trafficker and that the
defendant and Carpenter had met during acar transaction in 1986 or
1987. Finally, Carpenter testified that he was a drug dealer and had
met the defendant at his father’s car dealership where he told Loehr
that he was a drug dealer. The defendant objected to the foregoing
testimony charging that it was evidence of prejudicial “similar acts”
in violation of Rule 404(b) of the Federal Rules of Evidence. The
court overruled the defendant’s objections concluding that the
evidence was probative to prove Loehr’s intent to engage in the
money-laundering scheme and his knowledge of the IRS

9a
Appendix C

requirement to file a form whenever a money transaction over
$10,000 takes place.

The jury returned a verdict of guilty against the defendant. The
court sentenced him to 41 months incarceration, two years of
Supervised release, and a mandatory special assessment fee
pursuant to the November 1990 United States Sentencing
Guidelines. During the sentencing hearing, the defendant asserted
several objections to the presentence report, including the accuracy
of the offense level computation and urged the court to depart
downward from the guidelines. The court overruled his objections
and determined that the defendant had a base offense level of 20
pursuant to U.S.S.G. § 2S1.1(a)(2). Thereafter, the court increased
the offense level by three to account for specific offense
characteristics pursuant to 2S1.1(b)(1). After allowing defense
counsel time to present additional arguments, the court decided not
to depart downwards from the guideline’s sentence as requested by
the defendant.

In his first assignment of error, the defendant argued that the
evidence was not sufficient to prove that he performed one or more
Overt acts to constitute a substantial step toward the commission of
the attempted money-laundering offense. In order to prove that a
criminal offense was an attempt within the meaning of the statute
here in issue, the government must prove that the individual
charged intended to engage in the proscribed criminal activity and
that the accused performed an overt act in furtherance of the
criminal act proscribed by the statue. United States v. Pennyman,
889 F. 2d 104, 106 (6th Cir. 1989). The degree of a defendant’s
performance of a substantial act in furtherance of the illegal activity
is a factual issue to be resolved according to the circumstances of
each particular case. United States v. Joyce, 693 F. 2d 838 (8th Cir.
1982). The government:

10a

Appendix C

is under no obligation to wait until the sale was
actually completed before intervening. that is
of course true forif the sale has been completed
it is no longer a mere attempt. Something less
than a consummated sale suffices to prove an
attempt provided it is a substantial step toward
completion.

United States v. Cea, 914 F.2d 881, 888 (7th Cir. 1990).

The record disclosed that the defendant accepted over $20,000
in cash for the sale of an automobile and that Bell made it clear that
she intended to take the car with her that same day. Further, the
defendant prepared paperwork in the name of a fictitious buyer as
directed by Bellin an effort tocomplete the transaction at issue, and
he assured the purchaser that the IRS form required to disclose cash
transactions that exceeded $10,000 would not be filed. Although
three witnesses testified that the transaction was either completed,
near completion, or 50% completed, a reasonable juror could have
concluded that the defendant’s actions were a substantial step
toward the commission of the crime charged. The government was
not required to prove that the transaction was completed.
Accordingly, this assignment of error is without merit.

Loehr next contended that the statute, 18 U.S.C. §
1956(a)(3)(B), was void-forvagueness and not intended to apply to
an individual such as himself who was not actively engaged in
money-laundering or drug dealing before the initiation of the sting
operation, The rule of statutory construction begins with the plain
meaning of the words in the statute. United States v. Ransbottom,
914F. 2d 743, 745 (6th Cir.), cert. denied, 111S.Ct.439(1990). The
void-for-vagueness doctrine requires only that “ordinary” people
can understand what conduct is prohibited and in a manner that does

lla

Appendix C

not encourage arbitrary and discriminatory enforcement. Kolender
v. Lawson, 461 U.S. 352, 357, 103 S. Ct. 1855, 1858 (1983). The
vagueness of statutes that do not threaten first amendment interests
is examined in light of the case at hand. Maynard v. Cartwright, 486
U.S. 356, 361, 108 S. Ct. 1853, 1858 (1988).

An examination of 18 U.S.C. § 1956(a)(1)(B) indicates that in
order for an accused to be convicted under the above provision, the
government must prove that he had the specific intent to conceal or
disguise the nature, location, source, ownership, or control of
property believed to be the proceeds of specified unlawful activity.
Furthermore, representations must be made by law enforcement
officers, or by those acting under their direction, and must relate to
specified unlawful conduct enumerated in the statute pursuant to §
1956(c)(7). The provision is clear and applies to anyone who has the
requisite intent to engage in the conduct as defined in the statute.
See also United States v. Jackson, 935 F. 2d 832 (7th Cir. 1991)
(court concluded that § 1956(a)(1) was not unconstitutionally
vague). Accordingly, this assignment of error is without merit.

The defendant next argued that the court abused its discretion
when it admitted evidence of the defendant’s past associations with
Carpenter because such evidence violated Fed. R. Evid. 404(b).
Rule 404(b) generally prohibits the introduction of testimony that
relates to prejudicial similar acts unless that evidence bears upona
relevant issue in the case such as motive, opportunity or knowledge.
United States v. Zelinka, 862 F. 2d 92, 98 (6th Cir. 1988). The court
determined that the testimony of Agent Simons, Simpson, and
Carpenter was probative of the defendant’s intent and knowledge.
There was no mention in the admitted testimony that Carpenter had
purchased automobiles in the past from the defendant using drug
money. Accordingly, the trial court did not abuse its discretion when
it permitted this testimony to be admitted into evidence.

12a

Appendix C

Finally, the defendant charged that the court erred in its
application of the November 1990 Sentencing Guidelines. Loehr
noted that U.S.S.G. § 2S1.1 was drafted before the enactment of 18
U.S.C. § 1956(a)(3). Thus, he contended that it was designed to
punish aclass of defendants to which he did not belong. However,
““[t]his court will give due deference toa district court’s application
of the Guidelines to the factual situation found to exist and will
review such achoice forclear error.” United States v. Hamilton, 929
F. 2d 1126 (6th Cir. 1991). We do not believe that the district court
committed clear error in the choice it made. Further, the district
court correctly elevated the base level offense by three because the
evidence was sufficient to prove that the defendant had the
necessary knowledge or belief that the source of the funds for the
transaction was from drug proceeds. Finally, the defendant may not
appeal the failure of the district court to depart from the guidelines
when the sentence imposed is within the guidelines and otherwise
valid. United States v. Draper, 888 F. 2d 1100 (6th Cir. 1989). This
court concludes that the defendant’s remaining assignments of
error are equally without merit.

Accordingly, after a review of the record, the briefs and
arguments of counsel, the district court’s disposition is hereby
AFFIRMED.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386011_1265%3A1. Public record. Not legal advice.