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Mayer Brown's Supreme Court and Appellate Practice Group distributes a Docket Report whenever the Supreme Court grants certiorari in a case of interest to the business community. We also email the Docket Report to our subscribed members and if you don't already subscribe to the Docket Report and would like to, please click here.

October Term 2007 - No. 2 - October 15, 2007

The Supreme Court granted certiorari today in one case of interest to the business community:

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.

The petitioner 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).

The Supreme 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 business community.

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 sexual harassment.

Mayer Brown Supreme Court Docket Reports provide information and comments on legal issues and developments of interest to our clients and friends. They are not a comprehensive treatment of the subject matter covered and are not intended to provide legal advice. Readers should seek specific legal advice before taking any action with respect to the matters discussed.

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