Mem. at 6 (citing 2 Webster's Third International Dictionary 1807 (1981)), really begs the question. Cf. Gov't Resp. at 11.
The fact is that if Congress had wanted to limit the reach of the statute as defendants contend, it could have used language plainly to that effect. For instance, instead of using the word "property" in 18 U.S.C. § 1956(a)(1), Congress could have used the phrase "monetary instrument or funds," as it did in 18 U.S.C. § 1956(a)(2).
The Court concludes that the word "proceeds," as used in 18 U.S.C. § 1956(a)(1), can include "property" other than money or cash equivalents, even if that "property" has not been purchased with the monetary "proceeds" of unlawful activity. The express language of 18 U.S.C. § 1956 clearly includes the conduct charged in the indictment here.
Defendants cite legislative history -- including a report of the President's Commission on Organized Crime ("The Cash Connection: Organized Crime, Financial Institutions, and Money Laundering" (1984)), the Senate Report referred to in Stavroulakis (see supra n. 2), and floor statements of Senator Thurmond and Representatives Oxley, Rangel and Hayes
-- to show that what Congress wished to prohibit was only what is indicated in the title of 18 U.S.C. § 1956 -- i.e., "Laundering of monetary instruments " (emphasis added).
Even conceding, arguendo, that Congress' principal focus in enacting the statute was on the laundering of "dirty" money, and that the paradigmatic transaction envisioned may have been something like the purchase of real estate or a business with money that resulted from loan sharking or from the sale of drugs, defendants' motion to dismiss is still unsupported.
As previously noted, "the express language of [the] statute is clear," and the Court therefore cannot adopt "a different construction absent clear legislative history contradicting the plain meaning of the words." Holroyd, 732 at 1125 (emphasis added). The Court does not find that the legislative history cited by defendants in any way contradicts the meaning of the words of the statute -- including the meaning of the word "proceeds" -- as found above. The fact that Congress (to the extent that its thinking is revealed by the cited legislative history) may have focused largely on a particular form of activity does not present a contradiction. "[The Supreme] Court has never required that every permissible application of a statute be expressly referred to in its legislative history." Moskal, 111 S. Ct. at 467. Congress' failure to mention factual situations more nearly resembling the one at issue is irrelevant. "Congressional silence, no matter how 'clanging,' cannot override the words of the statute." Sedima, S.P.R.L. v. Imrex Co., Inc., 473 U.S. 479, 495, 87 L. Ed. 2d 346, 105 S. Ct. 3275 n.13 (1985).
Defendant Werber urges that the government's construction of 15 U.S.C. § 1956 be rejected under the rule that "ambiguity concerning the ambit of criminal statutes should be resolved in favor of lenity." Rewis v. United States, 401 U.S. 808, 812, 28 L. Ed. 2d 493, 91 S. Ct. 1056 (1971), citing Bell v. United States, 349 U.S. 81, 83, 99 L. Ed. 905, 75 S. Ct. 620 (1955). Before that rule can be applied, however, the statute must first be found to be ambiguous. In Moskal, the Court pointed out that it has "declined to deem a statute 'ambiguous' for purposes of lenity merely because it was possible to articulate a construction more narrow than that urged by the Government." 111 S. Ct. at 465. Here, as pointed out above, the express language of the statute at issue applies, by its terms, to the offense conduct charged, and there is no ambiguity to bring the rule of lenity into play.
Defendants next argue that 18 U.S.C. § 1956 is void for vagueness. "As generally stated, the void-for-vagueness doctrine requires that a penal statute define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement." Kolender v. Lawson, 461 U.S. 352, 357, 75 L. Ed. 2d 903, 103 S. Ct. 1855 (1983) (citations omitted). A vagueness claim not involving infringement of a First Amendment freedom must be considered as the statute is applied to the facts of the particular case. Chapman v. United States, 114 L. Ed. 2d 524, 111 S. Ct. 1919, 1929 (1991).
Defendants' arguments here parallel those discussed above in § III. Acknowledging that 18 U.S.C. § 1956 has more than once, on different facts, withstood a challenge on void-for-vagueness grounds,
defendants focus on the application of the word "proceeds" to automobiles obtained by the utterance of counterfeit cashier's checks. Defendants argue that "this unforeseeable interpretation of the statutory language . . . deprived the defendants of adequate notice that their conduct constituted money laundering," and also that "the statute as applied creates a situation in which the government will have the option arbitrarily to convert any crimes involving stolen property or contraband into the often more serious offense of money laundering." (Def. Schmidt's Mem. at 13.)
In the first place, the Court finds that the word "proceeds" is not vague. Rather, as held in § III above, the express terms of 18 U.S.C. § 1956 -- including the word "process" -- are clear, and they cover the conduct charged.
Further, defendants do not contend that they were not on notice that the obtaining of automobiles with forged cashier's checks -- and the sale, or attempted sale, of those automobiles -- was illegal. In substance, defendants' argument is that even though they may have been on notice of the illegality of those automobile transactions, they were not on notice that such transaction, considered in combination, could constitute a violation of 18 U.S.C. 1956, with its presumed potential for a harsher sentence. In other words, "whatever debate there is would center around the appropriate sentence, and not the criminality of the conduct." Chapman, 111 S. Ct. at 1929.
A similar question arose in Fort Wayne Books, Inc. v. Indiana, 489 U.S. 46, 109 S. Ct. 916, 103 L. Ed. 2d 34 (1989). The Fort Wayne defendants were charged with violation of a state statute parallel to the federal RICO statute. The predicate acts charged were violations of the state's obscentity laws. In the trial court, one of the defendants had moved to dismiss the RICO charges, arguing that the RICO statute was unconstitutionally vague. The Court rejected this vagueness claim, stating that "we find no merit in petitioner's claim that the Indiana RICO law is unconstitutionally vague as applied to obscentity predicate offenses. Given that the RICO statute totally encompasses the obscenity law, if the latter is not unconstitutionally vague, the former cannot be vague either." Id. at 924-925. The Court also observed that "the punishments available in a RICO prosecution are different from those for obscenity violations. But we fail to see how this difference renders the RICO statute void for vagueness." Id. at 925 (footnote omitted).
The same reasoning applies here. The prohibition against the utterance of counterfeit cashier's checks is neither vague nor claimed to be so. So too with the prohibitions against the transportation and sale of stolen goods. Even assuming, arguendo, that 18 U.S.C. § 1956 were not clear, defendants would nevertheless be aware that their conduct was unlawful, and the statute would operate only to make a presumably harsher sentence available. The difference in sentencing possibilities, however, does not render 18 U.S.C. § 1956 void for vagueness.
Defendants have not shown that 18 U.S.C. § 1956 will "encourage arbitrary and selective enforcement." Kolender, 461 U.S. at 357. The statute can be applied only to conduct that comes within its express terms. The fact that defendants here (or others in the future) might have been charged under statutes carrying less severe potential penalties is not relevant. As the Court pointed out in Bordenkircher v. Hayes, 434 U.S. 357, 54 L. Ed. 2d 604, 98 S. Ct. 663 (1978):
In our system, so long as the prosecutor has probable cause to believe that the accused committed an offense defined by statute, the decision whether or not to prosecute, and what charge to file or bring before a grand jury, generally rests entirely in his discretion. Within the limits set by the legislature's constitutionally valid definition of chargeable offenses, "the conscious exercise of some selectivity in enforcement is not in itself a federal constitutional violation" so long as "the selection was [not] deliberately based upon an unjustifiable standard such as race, religion, or other arbitrary classification."