Opposition Brief — Lazarenko v. United States (No. 09-49)

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Supteme Court, U.S.

FILED

(Zz SEP 30 2009 |

No. 09-49

Jn the Supreme Court of the Cinited States

p—"\

OFFICE OF THE CLERK

PAVEL IVANOVICH LAZARENKO, PETITIONER

VU.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TOTHE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

ELENA KAGAN

Solicitor General

Counsel of Record

LANNY A. BREUER

Assistant Attorney General

JOHN-ALEX ROMANO

Attorney

Department of Justice

Washington, D.C. 20530-0001

(202) 514-2217

QUESTIONS PRESENTED

1. Whether the indictment in petitioner’s case omit-

ted an element of the alleged money laundering of-

fenses.

2. Whether the term “extortion,” as used in the fed-

eral money laundering statute’s definition of “speci-

fied unlawful activity,” 18 U.S.C. 1956(¢c)(7)(B)(ii), in-

cludes extortion under color of official right and other

non-violent forms of extortion.

TABLE OF CONTENTS

Page

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EN ig s\n bce ac aed Ce ee ee ee eae eee ]

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a2) 5-5-4. ss Varese dae ch antes eae eae eee 17

TABLE OF AUTHORITIES

Cases:

Arthur Andersen LLP v. United States, 544 U.S. 696

PE Se Kae hehe ae ce ek Coke eee aso are: oe 17

Evans v. United States, 504 U.S. 255 (1992) ...... 7, 14,16

Hamilton-Brown Shoe Co. v. Wolf Bros. & Co.,

ee er ee ee io ha cee eee ee coe ae an 9

Hamling v. United States, 418 U.S. 87 (1974) ........ 5,11

Major League Baseball Players Ass’n v. Garvey,

ee Sei ee I os Ore hee ork eek wees 8

Morissette v. United States, 342 U.S. 246 (1952) ........ 15

Muscarello v. United States, 524 U.S. 125 (1998) ....... 17

Richardson v. United States, 526 U.S. 813 (1999) ........ 6

Taylor v. United States, 495 U.S. 575 (1990) .. 2... ee

United States v. Allen, 406 F.3d 940 (8th Cir. 2005),

cert. denied, 549 U.S. 1095 (2006) ..............0.... i)

United States v. Bailey, 444 U.S. 894 (1980) . 2.2.0.0... 1]

United States v. Berger, 473 F.3d 1080 (9th Cir. 2007),

cert. denied, 128 S. Ct. 87412006): ow... cc ccec ccc eas 5

l/nited States v. Caldwell, 302 F.3d 399 (Sth Cir.

EE kk awd eee eee ae ee 12

(111)

Cases—Continued: Page

United States v. Carr, 25 F.3d 1194 (3d Cir.), cert

denied, 513 U.S. 939 (1994), and 513 U.S. 1086

CR ae ea aa are ae ie to ee ol eas Gee a ok 1]

United States v. Cherry, 330 F.3d 658 (4th Cir. 2003) ... 13

United States v. Cor-Bon Custom Bullet Co., 287 F.3d

576 (6th Cir.), cert. denied, 537 U.S. 880 (2002) ...... 10

United States v. Corporan-Cuevas, 244 F.3d 199

(1st Cir.), cert. denied, 534 U.S. 880 (2001) .......... 10

United States v. Du Bo, 186 F.3d 1177 (9th Cir. 1999) ... 10

United States v. Higgs, 353 F.3d 281 (4th Cir. 2003),

cert. denied, 543 U.S. 999 (2004) .................... g

United States v. Ludume, 141 F.3d 1828 (9th Cir.),

525 U.S. 898, and 525 U.S. 1021 (1998) .............. 11

United States v. Lanier, 520 U.S. 259 (1997) ........... 16

United States v. Lomow, 266 F.3d 1013 (9th Cir.

RE si ars ca aeee ea eee Re te a ee 12

United States v. Mankarious, 151 F.8d 694 (7th Cir.),

cert. denied, 525 U.S. 1056 (1998) ..............000. 12

United States v. McGauley, 279 F.3d 62 (st Cir.

Be Se eee ae ee eee Pee ee ae eae 12

United States v. Prentiss, 256 ™.3d 971 (10th Cir.

BE ea oe eee ae Eee ee eee 10

United States v. Resendiz-Ponce, 549 U.S. 102

os 1 TEEN PA DAR ott ra Pare ena VR as Snag re 9 1]

United States v. Robinson, 367 F.3d 278 (Sth Cir.),

cert. denied, 543 U.S. 1005 (2004) ................... Y

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

cert. denied, 516 U.S. 1186 (1996) .................. 11

Cases—Continued: Page

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

cort: denied, 614 U.S. T11S (GES) .. 6 ow cc cece. 12

United States v. Spinner, 180 F.3d 514 (3d Cir. 1999) ... 10

United States v. Trennell, 290 F.3d 881 (7th Cir.),

cert. denied, 537 U.S. 1014 (2002) .................. 10

United States v. Vanhorn, 296 F.3d 713 (8th Cir.

2002), cert. denied, 537 U.S. 1167 (2003) ............ ll

VMI v. United States, 508 U.S. 946 (1993) .............. 9

Wisniewski v. United States, 353 U.S. 901 (1957)... 2... 10

Statutes:

International Money Laundering Abatement and

Financial Anti-Terrorism Act of 2001, Pub. L.

No. 107-56, Tit. ITT, § 315(1)(C), 115 Stat. 308 ........ 8

ee IE boc oa sd asec Oba eee eA eRe 2

AO ey Parke ea ae ee 2

ee Ns og ks ca hoes he ewd eres eee een 7

SE ee PO. 6 vi no vc ccc cus eewe bees 12

OE Tre, POE EE) Sikes cvseetensededeswonses Ls

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Se, SED og ks ca cacao beens ew sees re:

OOF e , ED 5 os iis eo ees wc cede ins euevevens l

Oe Uy, STD) <n ox sks kc iwiiaess a ee

13 UBC, BOO CE) on ce vc ccc cneceevnenses 7,14

18 U.S.C. 1956(c)(7)(B)(ii) (1994) ........... 7, 8, 138, 14,15

18 U.S.C. 1986(e)(7)(B)iv) 2... eee. 7

ees UD ee ag sale aya eet ey

Statute—Continued: Page

SOLE! pit. 4) Ca - ae erry

Miscellaneous:

Robert L. Stern et al., Supreme Court Practice

(Sth ed. 2002) .. . a)

Jn the Supreme Court of the Gnited States

No. 09-49

PAVEL IVANOVICH LAZARENKO, PETITIONER

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINION BELOW

The opinion of the court of appeals (Pet. App. 1-45)

is reported at 564 F.3d 1026.

JURISDICTION

The judgment of the court of appeals was entered on

September 26, 2008. A petition for rehearing was denied

on April 10, 2009 (Pet. App. 1-2). The petition for a writ

of certiorari was filed on July 9, 2009. The jurisdiction

of this Court is invoked under 28 U.S.C, 1254.

STATEMENT

Following a jury trial in the United States District

Court for the Northern District of California, petitioner

was convicted on one count of conspiring to commit

money laundering, in violation of 18 U.S.C. 1946(h);

seven counts of money laundering, in violation of 18

(1)

U.S.C. 1956(a)(1)(B) and (2)(B); five counts of wire

fraud, in violation of 18 U.S.C. 1343 (1994) and 18 U.S.C.

1346; and one count of interstate transportation of stolen

property, in violation of 18 U.S.C. 2314. He was sen-

tenced to 108 months of imprisonment, to be followed by

three years of supervised release. Pet. App. 10, 45-49.

The court of appeals affirmed the conspiracy and money

laundering convictions, reversed the wire fraud and in-

terstate transportation of stolen property convictions,

vacated petitioner’s sentence, and remanded for resen-

tencing. /d. at 1-45.

1. Petitioner served as a high-ranking public official

in Ukraine during the 1990s. Petitioner exploited his

government position to “form[{] multiple business rela-

tionships and engage[] in a tangied series of transactions

that netted him millions of dollars.” Pet. App. 2-3; see

id. at 8-8 (describing the five separate arrangements

that formed the basis for the charges against petitioner).

Petitioner “kept his money in foreign bank accounts,

transferring funds from one account to another across

the globe in an effort * * * to disguise and conceal the

sources and ownership of the proceeds from the Ukrai-

nian people,” and the funds “passed through bank

accounts in the United States from Swiss, off-shore,

and other accounts.” /d. at 2. Petitioner left Ukraine

around February 1999 and subsequently came to the

United States. He was arrested in April 1999. Gov't

C.A. Br. 22.

2. A grand jury charged petitioner with a single

count of conspiracy to commit money laundering (Count

1); seven counts of money laundering, in violation of 18

U.S.C. 1956(a)(2) (Counts 2-5) and 18 U.S.C.

1956(a)(1)(B) (Counts 6-8); 22 counts of wire fraud

(Counts 9-30); and 23 counts of interstate transportation

of stolen property (Counts 31-53). Pet. App. 8-9; see id.

at 74-121 (Second Superseding Indictment). Count 1

alleged that petitioner conspired to commit money laun-

dering by conducting financial transactions that involved

the proceeds of extortion, wire fraud, and receipt and

transfer of stolen property. Jd. at 76-91. The substan-

tive money laundering counts were likewise based on the

“specified unlawful activities” of:

receipt and transfer of property that was stolen, un

lawfully converted, and taken by fraud in violation of

18 U.S.C. § 2314 and § 2315; extortion as specified in

18 U.S.C. § 1956(¢c)(7)(B)(ii); and wire fraud in viola

tion of 18 U.S.C. § 13843 and § 1346.

Id. at 92.

Petitioner moved for a bill of particulars identifying

the provisions of Ukrainian law that the government

alleged that he violated. The district court denied that

motion. Gov’t C.A. E.R. 62-66. The court stated that

petitioner would, “at some point, [be] entitled to know

the specific Ukrainian laws which he is accused of violat-

ing.” /d. at 64. The court noted, however, that peti-

tioner was “not being charged pursuant to foreign stat

utes or laws” and stated that although “a violation of

Ukrainian law may be relevant to establishing an ele-

ment of the alleged offense, * * * itis not the offense

itself.” /bid. The district court also stated that peti-

tioner had “offerled] no legal support for the proposition

that such information must be included in the indictment

or a bill of particulars.” /bid.; see Pet. C.A. E.R. 90-91

(denying petitioner’s subsequent motion to dismiss the

indictment and reiterating the court’s previous rejection

of the view “that a violation of foreign law is a necessary

‘element’ of any of the offenses pled in the indictment”);

Gov't C.A. E.R. 70-72 (denying petitioner’s motion to

preclude the government from attempting to prove cer-

tain theories of liability at trial and reiterating the

court’s previous view that the indictment “adequately

alleges the offenses for which [petitioner] * * * is cul-

pable”).

Petitioner also moved to dismiss the money launder-

ing charges on the ground “that the extortion allegations

could not serve as a specified unlawful activity underly-

ing the charge|s| because only extortion by force, as

opposed to extortion under color of office, could be the

specified unlawful activity.” Pet. C.A. E.R. 55. The dis-

trict court denied that motion, concluding “that the alle-

gations of extortion, fraud, and interstate transportation

of stolen property [contained in the indictment] can ser-

vice as the specified unlawful activity required under the

money laundering statute.” /d. at 57.

Petitioner was tried before a jury. At the close of the

government’s case in chief, the district court granted

petitioner’s motion for a judgment of acquittal on 12 of

the 22 counts charging wire fraud and 12 of the 23

counts charging interstate transportation of stolen prop-

erty. The jury found petitioner guilty on the remaining

counts. After the jury’s verdict, the district court

granted petitioner’s renewed motion for a judgment of

acquittal with respect to five additional wire fraud

counts and ten additional interstate transportation of

stolen property counts. ‘The district court declined to

disturb the jury’s verdict with respect to the one count

charging conspiracy to commit money laundering, the

seven counts charging money laundering, and one count

charging interstate transportation of stolen property.

Pet. App. 9-11.

3. The court of appeals affirmed petitioner’s con-

spiracy and money laundering convictions, reversed the

wire fraud and interstate transportation of stolen prop-

erty convictions, vacated petitioner’s sentence, and re-

manded for resentencing. Pet. App. 1-45.

a. The court of appeals rejected petitioner’s argu-

ment that “the indictment must be dismissed because it

failed to allege that his conduct violated Ukrainian law.”

Pet. App. 11. The court stated that “[a]n indictment is

sufficient if it (1) ‘contains the elements of the offense

charged and fairly informs a defendant of the charge

against which he must defend’ and (2) ‘enables him to

plead an acquittal or conviction in bar of future prosecu-

tions for the same offense.’” /bid. (quoting Hamling v.

United States, 418 U.S. 87, 117 (1974)). It also stated

that “[aJn indictment ‘should be read in its entirety, con-

strued according to common sense, and interpreted to

include facts which are necessarily implied.’ /bid.

(quoting United States v. Berger, 473 F.3d 1080, 1103

(9th Cir. 2007), cert. denied, 128 S. Ct. 874 (2008)).

In this case, the court of appeals noted that “[tlhe

indictment tracks the statutory language in charging

money laundering, wire fraud and interstate transporta-

tion of stolen property,” language that the court of ap-

peals had previously held “set forth the essential ele-

ments of these offenses.” Pet. App. 12. The court stated

that petitioner was “seek[ing] to import an additional

element into these offenses [by] claiming that the Ukrai-

nian law at issue is also an essential element because the

government must prove a violation of Ukrainian law to

sustain a conviction.” /hid. The court of appeals stated

that petitioner’s “challenge does not achieve novelty

status simply because it involves foreign law” and it

noted that the general rule is that, “when bringing

charges of money laundering, the government need not

allege all the elements of the ‘specified unlawful activ-

ity, i.e., the underlying offense.” Jbid. “Here,” the

court of appeals explained, “the violation of Ukrainian

law is the specified unlawful activity.” bid.

The court of appeals also determined that “the omis-

sion of a citation to foreign law” in the indictment had

not prejudiced petitioner, noting both that “[tJhe indict-

ment provided detailed allegations regarding the basis

for the charges, including dates, amounts, account num-

bers, and sources of the money” and that “the [petit]

jury was instructed that it had to find a violation of

| Ukrainian] law and was provided with the elements of

the relevant [Ukrainian] statutes.” Pet. App. 12-18. The

court rejected petitioner’s reliance on Richardson v.

l/nited States, 526 U.S. 813 (1999), both because this

Court did “not comment on the sufficiency of an indict-

ment in Richardson” and because “here the indictment

identified interstate transportation of stolen property,

extortion, and wire fraud as the ‘specified unlawful

activitlies}’ and provided detailed allegations regarding

each of these offenses.” Pet. App. 13 (brackets in origi-

nal).

b. The court of appeals held that the evidence at

trial was insufficient to sustain petitioner’s convictions

for wire fraud (Counts 25-29) and interstate transporta.

tion of stolen property (Count 31). Pet. App. 18-21, 2&

34. The court rejected petitioner's argument that the

reversal of the wire fraud convictions also required re-

versal of the convictions on the money laundering counts

charged in Counts 6-8. /d. at 21-22.

ec. The court of appeals also rejected petitioner's

challenge to the money laundering convictions based on

Counts 2-5. Pet. App. 22-27. As the court explained,

Section 1956 “criminalizes the laundering of the pro-

ceeds of a ‘specified unlawful activity.’” Jd. at 23. At

the time of petitioner’s charged conduct, “specified un-

lawful activity” was defined to include: “with respect to

a financial transaction occurring in whole or in part in

the United States, an offense against a foreign nation

involving * * * extortion.” 18 U.S.C. 1956(c)(7)(B) and

(B)ii) (1994).

The court of appeals rejected petitioner’s argument

“that ‘extortion’ as it was used in the money laundering

statute * * * is limited to extortion through violence”

and excludes extortion that “is more akin to bribery” or

extortion committed “under color of official right.” Pet.

App. 23-24. The court cited the “familiar maxim that a

statutory term is generally presumed to have its com-

mon law meaning,” ?d. at 25 (quotation marks omitted)

(quoting Evans v. United States, 504 U.S. 255, 259

(1992)), and it noted that, “[a]t common law, extortion

was a crime that resembled what we know as bribery,

and involved an abuse of power by a public official,” and

had only later been “expanded * * * to include the

obtaining of property by force,” 7bid. The court of ap-

peals noted that Section 1956(c)(7)(B)(ii) did not “qualify

the term in any way that suggests that we should read

‘extortion’ as excluding the common law definition,” 2d.

at 25-26, and stated that petitioner “has not directed us

to any statute where Congress used the word ‘extortion’

and meant only extortion by violence or only extortion

under color of official right,” 7d. at 27.

In 2001, after the conduct at issue in this case, Con-

gress amended the definition of “specified unlawful

activity” to include “bribery of a public official, or the

misappropriation, theft, or embezzlement of public

funds by or for the benefit of a public official.” 18 U.S.C.

1956(c)(7)(B)(iv); see International Money Laundering

Abatement and Financial Anti-Terrorism Act of 2001,

Pub. L. No. 107-56, Tit. III, § 315(1)(C), 115 Stat. 308.

The court of appeals determined that this amendment

“does not become superfluous if we read ‘extortion’ to

include extortion under color of official right,” because

“(bjribery and extortion under color of official right are

not co-extensive.” Pet. App. 26; see zbid. (noting that

“‘(bJribery of a public official’ extends to the individual

who offers the bribe as well as the public official who

accepts the bribe”).’

ARGUMENT

Petitioner contends (Pet. 5-13) that the omission

of an element of a criminal offense from a federal in-

dictment can never constitute harmless error. Peti-

tioner also asserts (Pet. 13-20) that his conduct did

not constitute “extortion” for purposes of 18 U.S.C.

1956(¢c)(7)(B)(ii) (1994). Those claims do not merit fur-

ther review.

1. The petition for a writ of certiorari should be de-

nied because this case is in an interlocutory posture.

The court of appeals reversed six of petitioner’s convic-

tions, vacated petitioner’s sentence, and remanded for

resentencing on the remaining eight counts. Pet. App.

45. Following the district court's final disposition of the

case, petitioner will be able to raise his current claims—

together with any other claims that may arise during

resentencing—in a single petition for a writ of certio-

rari. See Major League Baseball Players Ass’n v. Gar-

vey, 532 U.S. 504, 508 n.1 (2001) (per curiam) (stating

' The court of appeals also rejected petitioner's claim that he was en-

titled to a new trial on grounds of retroactive misjoinder. Pet. App. 34-

14. Petitioner does not renew that claim before this Court.

that this Court “ha[s] authority to consider questions

determined in earlier stages of the litigation where cer-

tiorari is sought from” the most recent judgment). The

interlocutory posture of the case “alone furnishe[s] suffi-

cient ground for the denial of” the petition for a writ of

certiorari. Hamulton-Brown Shoe Co. v. Wolf Bros. &

Co., 240 U.S. 251, 258 (1916); see VMI v. United States,

508 U.S. 946 (1993) (Scalia, J., respecting the denial of

the petition for a writ of certiorari); see also Robert L.

Stern et al., Supreme Court Practice § 4.18, at 258 n.59

(8th ed. 2002) (noting that this Court routinely denies

petitions for a writ of certiorari filed by criminal defen-

dants challenging interlocutory determinations that may

be reviewed at the ultimate conclusion of the proceed-

ings and explaining that this practice promotes judicial

efficiency).

2. Petitioner contends (Pet. 5-13) that this Court

should grant a writ of certiorari to determine whether

the omission of an element of a criminal offense from

a federal indictment can constitute harmless error. As

petitioner notes (Pet. 5), this Court granted review

to decide that question three years ago, but it ultimate-

ly resolved the case by finding that the indictment in

question contained all the elements of the offense and

thus presented no harmless-error issue. See United

States v. Resendiz-Ponce, 549 U.S. 102 (2007). The pre-

Resendiz-Ponce split continues to exist. The majority of

the courts of appeals have held that such an omission (or

the omission of a sentence-enhancing fact) is subject tc

harmless-error analysis. See United States v. Allen, 406

F.3d 940, 943-945 (8th Cir. 2005) (en banc), cert. denied,

549 U.S. 1095 (2006); United States v. Robinson, 367

F.3d 278, 285-286 (Sth Cir.), cert. denied, 543 U.S. 1005

2004); United States v. Higgs, 353 F.3d 281, 304-307

(4th Cir. 2003), cert. denied, 543 U.S. 999 (2004); United

States v. Trennell, 290 F.3d 881, 889-890 (7th Cir.), cert.

denied, 537 U.S. 1014 (2002); United States v. Cor-Bon

Custom Bullet Co., 287 F.3d 576, 580-581 (6th Cir.), cert.

denied, 537 U.S. 880 (2002); United States v. Prentiss,

256 F.3d 971, 981-985 (10th Cir. 2001) (per curiam) (en

banc); United States v. Corporan-Cuevas, 244 F.3d 199,

202 (1st Cir.), cert. denied, 534 U.S. 880 (2001). The

Third and Ninth Circuits, in contrast, have held that

such omissions constitute structural error and require

reversal. See United States v. Du Bo, 186 F.3d 1177,

1179-1181 (9th Cir. 1999); United States v. Spinner, 180

F.3d 514, 515-516 (3d Cir. 1999).

This case, hovever, does not present the question on

which petitioner seeks review. The court of appeals did

not conclude that petitioner’s indictment omitted an ele-

ment of the offense but that the omission was harmless.

Instead, the court held that the indictment was not de-

fective in the first place. See Pet. App. 11-13. As a re-

sult, this Court could not reach the harmless-error ques-

tion in this case unless it were first to consider—and

then disagree with—the actual basis for the court of ap-

peals’ decision.”

* As noted in the text, the Ninth Circuit has previously held that the

omission of an element of the offense from a federal indictment consti-

tutes structural error. Petitioner suggests that the Ninth Circuit

implicitly repudiated Du Bo in this case and effectively “held that any

error in the failure to allege a foreign offense was harmless in this

case.” Pet. 10. But that is not what the court of appeals said; insteaq,

it held that “(t]he indictment against [ petitioner] was legally sufficient.”

Pet. App. 13. Even if there were any tension between the Ninth Cir-

cuit’s decisions in Du Bo and in this case—and there is not—an intra

circuit conflict would not warrant this Court’s review. See Wisnremwskr

v. United States, 353 U.S. 901, 902 (1957) (per curiam).

Petitioner does not seek this Court’s review of

the court of appeals’ conclusion that “(t]he indictment

against [him] was legally sufficient.” Pet. App. 13; see

Pet i. Petitioner likewise does not assert that that hold-

ing conflicts with any decision of another court of ap-

peals. See Pet. 5-9. Further review on that issue is

therefore unwarranted.

In any event, the court of appeals correctly he!d that

the indictment in this case was legally sufficient. As the

court of appeals explained (Pet. App. 12), an indictment

is sufficient if it contains the elements of the offense

charged, fairly informs the defendant of the charge

against him, and contains sufficient information to en-

able him to plead an acquittal or conviction as a bar to

future prosecutions. See, e.g., Resendiz-Ponce, 549 U.S.

at 108; Hamling v. United States, 418 U.S. 87, 117

(1974). An indictment that tracks the language of the

statute is generally adequate for these purposes. See,

e.g., United States v. Bailey, 444 U.S. 394, 414 (1980);

Hamling, 418 U.S. at 117.

In this case, “[tlhe indictment track[ed] the statutory

language.” Pet. App. 12. Compare id. at 77, 92, 94, with

18 U.S.C. 1956(a)(1)(B)(), (2)(B)G) and (h). Those statu-

tory sections set forth the essential elements of the re-

spective money laundering offenses. See, e.g., United

States v. Vanhorn, 296 F.3d 713, 717-718 (8th Cir. 2002)

(so stating with respect to Section 1956(a)(1)(B)(i)), cert.

denied, 537 U.S. 1167 (2003); United States v. Ladum,

141 F.8d 1328, 1341 (9th Cir.) (same), cert. denied, 525

U.S. 898, and 525 U.S. 1021 1998); United States v. Sav-

age, 67 F.3d 1435, 1441 (9th Cir. 1995) (so stating with

respect to Section 1956(a)(2)(B)(i)), cert. denied, 516

US. 1136 (1996); United States v. Carr, 25 F.3d 1194,

1204 (3d Cir.) (similar), cert. denied, 513 U.S. 939 (1994),

and 513 U.S. 1086 (1995). In addition, “{tjne indictment

provided detailed allegations regarding the basis for the

charges, including dates, amounts, account numbers,

and sources of the money,” Pet. App. 13. Accordingly,

the indictment contained sufficient information to per-

mit petitioner to prepare a defense to the charges

against and to raise a double jeopardy defense against

a future prosecution for the same offenses.

Petitioner erroneously contends (Pet. 6-7) that the

indictment was defective with respect to the money

laundering offenses because it did not allege that his

underlying ¢c: induct violated Ukrainian law and did not

include a citation to “any specific provisions of the

Ukrainian Criminal Code.” Pet. 6. The crimes with

which petitioner was charged, however, were not viola-

tions of Ukrainian law; rather, they were violations of

the federal money launZering statute. One of the ele-

ments of the money laundering offense is that the prop-

erty involved must be “ie proceeds of specified unlaw-

ful activity,” 18 U.S.C. 1956(a)(1) (1994), or be used “to

promote the carrying on of specified unlawful activity,”

18 U.S.C. 1956(a)(2)(A). But “the elements of money

laundering do not include the elements of the ‘specified

unlawful activity.’” United States v. Lomou, 266 F.3d

1013, 1017 (9th Cir. 2001). As a result, a money launder-

ing indictment need not allege the elements of the speci-

fied criminal activity. See Pet. App. 12; United States v.

Caldwell, 302 F.3d 399, 413 (5th Cir. 2002); United

States v. McGauley, 279 F.3d 62, 70-71 (1st Cir. 2002);

United States v. Mankarious, 151 F.3d 694, 703 (7th

Cir.), cert. denied, 525 U.S. 1056 (1998); United States

v. Smith, 44 F.3d 1259, 1265 (4th Cir.), cert. denied, 514

U.S. 1113 (1995).°

As the court of appeals observed, the district court

charged the petit jury “that it had to find a violation of

{Ukrainian] law” in order to return a guilty verdict and

“provided [the jury] with the elements of the relevant

[Ukrainian] statutes.” Pet. App. 13. Petitioner asserts

that “an element is an element” and “[t]here is no dis-

tinction between an element for the purposes of pleading

and an element for the purposes ot petit jury instruc-

tions.” Pet. 8-9. But it is far from unusual for a trial

court’s jury instructions to contain more detailed infor-

mation about the nature of the charged offense than was

contained in the indictment. See, e.g., United States v.

Cherry, 330 F.3d 658, 667-668 (4th Cir. 2003) (upholding

money laundering convictions where the indictment had

not contained the elements of the specified unlawful ac-

tivity but the district court had instructed the petit jury

about the elements of the specified unlawful activity).

3. Petitioner contends (Pet. 13-20) that his conduct

did not constitute “extortion” as that term is used in the

federal money laundering statute’s definition of “speci-

fied unlawful activity” because that term is limited to

“extortion by threats of violence.” Pet. 15. That claim

does not merit further review.

a. Petitioner does not assert that the court of ap-

peals’ rejection of his claim about the meaning of the

term “extortion” in the pre-2001 version of the money

* Petitioner provides no support for his assertion that “[wJhen the

specified unlawful alleged is ‘extortion,’” the elements of a federal mon-

ey laundering offense “include that the offense be ‘against a foreign

nation.” Pet. 9n.1 (quoting 18 U.S.C. 1956(¢e)(7)(B)(ii) (1994)). In any

event, the indictment provided adequate notice by alleging extortion as

well os the provision that made extortion a specified uniawful activity.

laundering statute conflicts with the decisions of this

Court or of another court of appeals. Indeed, petitioner

cites no other court of appeals decision that even consid-

ered this particular question. Standing alone, the ab-

sence of any claim of conflict warrants denial of the peti-

tion for a writ of certiorari with respect to the second

question on which petitioner seeks this Court’s review.

b. This Court’s review also is unwarranted because

the meaning of the pre-2001 version of the money laun-

dering statute is an issue of little, if any, continuing im-

portance. As petitioner acknowledged before the court

of appeals, the sort of conduct in which he engaged is

clearly covered by the post-2001 version of the statute.

See Pet. C.A. Br. 83 (“With the passage of the Patriot

Act, conduct of the sort charged in Counts 1 to 8 came

within the scope of the money laundering statutes.”). It

is unlikely that any significant number of future money

laundering cases will be brought based on corrupt predi-

cate activity that predated the enactment of a statute

that already has been in effect for eight years.

¢. [n any event, the court of appeals correctly held

that petitioner’s conduct constituted “specified unlawful

activity” under the pre-2001 version of the money laun-

dering statute. Pet. App. 22-27. The version of the stat-

ute in effect at the time of petitioner’s offenses defined

“specified unlawful activity” to include “an offense

against a foreign nation involving * * * extortion.” 18

U.S.C. 1956(¢c)(7)(B) and (B)(ii) (1994). “It is a familiar

‘maxim that a statutory term is generally presumed to

have its common law meaning.’” Avans v. United

States, 504 U.S. 255, 259 (1992) (quoting Tuylor v.

United States, 495 U.S. 575, 592 (1990)). This Court has

explained that, “[aJt common law, extortion was an of-

fense committed by a public official who took ‘by colour

of his office’ money that was not due to him for perfor-

mance of his official duties,” and that extortion thus

“was the rough equivalent of what we would now de-

scribe as ‘taking a bribe.’” /d. at 260. Here, as in Ev-

ans, “{iJt is clear that petitioner committed that of-

fense.” Ibid.

Petitioner has failed to identify any “contrary direc-

tion” by Congress. Evans, 504 U.S. at 259 (quoting

Morissette v. United States, 342 U.S. 246, 263 (1952)).

As the court of appeals correctly observed, “Congress

did not qualify the term in any way that suggests that

we should read ‘extortion’ as excluding the common law

definition.” Pet. App. 25-26. Petitioner observes (Pet.

16) that the term “extortion” is included in the same

statutory section as kidnapping and robbery. See 18

U.S.C. 1956(e)(7)(B)(ii) (1994). That fact, however, does

not compel a court “to give the term a narrower meaning

or one predicated on force or violence.” Pet. App. 26.

To the contrary, it is equally plausible that Congress

grouped those three undefined predicate offenses to-

gether because they all were crimes at common law.

Petitioner also contends (Pet. 15) that “[t]he term ‘extor-

tion’ has many different meanings” and that “it has cov-

ered different kinds of conduct” “in various statutes and

at various times.” As the court of appeals noted, how-

ever, petitioner has failed to identify “any statute where

Congress used the word ‘extortion’ and meant only ex-

tortion by violence or only extortion under color of offi

cial right.” Pet. App. 27 (first emphasis added).

Petitioner errs in asserting (Pet. 14-15) that Con-

gress’s decision in 2001 to amend the definition “speci-

fied unlawful activity” to include “bribery of a public

official” demonstrates that his conduct was not covered

by the pre-2001 version of the statute. He relies (Pet.

17-18) on statements by Executive Branch officials in

seeking legislative changes. But the question is not

whether the pre-2001 version of the money laundering

statute covered “bribery” in a general sense—which is

the issue addressed in the statements quoted by peti-

tioner, see 72bid.—but whether petitioner’s particular

conduct constituted “extortion,” whicn was specifically

included in the pre-2001 statute.

At any rate, as the court of appeals explained (Pet.

App. 26), its interpretation of the term “extortion” in

the pre-2001 statutes does not render the 2001 amend-

ment superfluous. “Bribery and extortion under color of

official right are not co-extensive,” because the “‘[b]rib-

ery of a public official’ extends to the individual who of-

fers the bribe as well as the public official who accepts

the bribe.” Jbid.; see ibid. (explaining that the words

“(mJisappropriation, theft, or embezzlement of public

funds by or for the benefit of a public official,” which

also were added by the 2001 amendments, “will also cap-

ture conduct not punishable as ‘extortion under color of

official right’ because misappropriation, theft, and em-

bezzlement do not necessarily require the quid pro quo

of an official action”).

Finally, petitioner cites the “fair warning require-

ment” discussed by this Court in United States v.

Lanier, 520 U.S. 259 (1997), and appears to invoke the

rule of lenity in particular. See Pet. 19 (citing the

maxim that “{[w]here criminal statutes are reasonably

susceptible of two interpretations, the narrower inter-

pretation must be chosen”). As the court of appeals cor-

rectly recognized, “(t]he term ‘extortion’ has an ordinary

meaning and it is not ambiguous.” Pet. App. 27. The

version of the statute in effect at the time of petitioner’s

offense thus provided more than “a fair warning * * *

of what the law intends to do if a certain line is passed.”

Arthur Andersen LLP v. United States, 544 U.S. 696,

703 (2005) (citation omitted). There likewise is no rea-

son to resort to the rule of lenity, which is reserved for

cases involving a “grievous ambiguity” in the statutory

text such that, “after seizing everything from which aid

can be derived, . . . [the Court] can make no more than

a guess at what Congress intended.” Muscarello v.

United States, 524 U.S. 125, 188-139 (1998) (internal

quotation marks and citations omitted).

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.