The Supreme Court granted
certiorari today in one case of interest to the business
Federal Money Laundering
Statute--Meaning of the Term "Conceal."
The principal federal money laundering statute makes it a crime
to transport across United States borders the "proceeds" of an
unlawful activity when that transportation is designed "to
conceal or disguise the nature, the location, the source, the
ownership, or the control of the proceeds" of the activity. 18
U.S.C. § 1956(a)(2)(B)(i). The Supreme Court granted certiorari
in Cuellar v. United States, No. 06-1456, to
resolve a conflict among the lower federal courts concerning the
meaning of the term "conceal" for purposes of the statute.
in Cuellar was convicted of international money
laundering under Section 1956(a)(2) because he allegedly hid the
"proceeds" of an illegal drug operation in a compartment in a
car he was driving to Mexico. A panel of the Fifth Circuit
initially reversed petitioner's conviction, holding that, to
establish "conceal[ment]" under Section 1956(a)(2), the
government was required to show that petitioner's activities
were designed to "create the appearance of legitimate wealth."
441 F.3d 329, 334 (2006). Under this interpretation,
petitioner's mere hiding of "proceeds" was insufficient to
support a money laundering conviction. The Fifth Circuit sitting
en banc vacated the panel opinion and held that the
hiding of proceeds of an illegal venture can be sufficient to
support a money laundering conviction. 478 F.3d 282, 290 (2007).
The en banc court concluded that "although creating the
appearance of legitimate wealth is one way of concealing illicit
funds, it is not the only way concealment can be established"
under the statute. Id. Other circuits have adopted
inconsistent definitions of "conceal[ment]" under Section 1956.
Compare, e.g., United States v. Ness, 466
F.3d 79, 81 (2d Cir. 2006), with United States v.
Dimeck, 24 F.3d 1239, 1245 (10th Cir. 1994).
Court's decision to consider this case is a further indication
of the Court's desire to address the proper scope of the federal
money laundering statute, which, given the lengthy sentences it
authorizes, the Government frequently uses as a threat to
extract plea bargains from defendants. The Court recently held
oral argument in another case, United States v. Santos,
No. 06-1005, which concerns the proper definition of the term
"proceeds" as used in the statute. Absent an extension, amicus
briefs in support of petitioner in Cuellar will be due on
December 6, 2007, and amicus briefs in support of the respondent
will be due January 7, 2008. Any questions about this case
should be directed to Andrew Tauber (202-263-3324) in our
Washington, D.C. office.
Earlier this month, the Supreme Court also invited the
Solicitor General to file briefs expressing the views of the
United States in the following cases of interest to the
AT&T Pension Benefit Plan v. Call, No. 06-1398. This
petition for certiorari presents two questions. The first
question is whether, under the abuse of discretion standard
established in Firestone Tire & Rubber Co. v. Burch,
489 U.S. 101 (1989), the court of appeals was required to
defer to the plan administrator's interpretation of the terms
of an employee benefits plan. The second question is whether
the court erred by awarding prejudgment interest and
calculating that interest at the prime rate.
Geddes v. United Staffing Alliance Employee Med. Plan,
No. 06-1458. The question presented is whether a de novo
rather than discretionary standard of judicial review applies
in an action under the Employee Retirement Income Security Act
(ERISA) when the benefit plan administrator delegates its
discretionary authority to a non-fiduciary.
Meacham v. Knolls Atomic Power Lab., No. 06-1505.
This petition for certiorari presents two questions. The first
question is whether an employee who alleges disparate impact
discrimination under the Age Discrimination in Employment Act,
29 U.S.C. §§ 621 et seq., bears the burden of
persuasion that the employer did not rely on on the
"reasonable factors other than age" defense under 29 U.S.C. §
623(f)(1). The second question is whether a company's practice
of conferring broad discretionary authority upon individual
managers to decide which employees to lay off during a
reduction in force constituted a "reasonable factor other than
age" as a matter of law.
Crawford v. Metro. Gov't of Nashville & Davidson County,
No. 06-1595. The question presented is whether the
anti-retaliation provision of Section 704(a) of Title VII of
the Civil Rights Act of 1964 protects a worker from being
dismissed for cooperating with an internal investigation of