United States v. Cabrales

PETITIONER:United States
RESPONDENT:Cabrales
LOCATION:The White House

DOCKET NO.: 97-643
DECIDED BY: Rehnquist Court (1986-2005)
LOWER COURT: United States Court of Appeals for the Eighth Circuit

CITATION: 524 US 1 (1998)
ARGUED: Apr 29, 1998
DECIDED: Jun 01, 1998

ADVOCATES:
John W. Rogers – Argued the cause for the respondent
Malcolm L. Stewart – Department of Justice, argued the cause for the petitioner

Facts of the case

An indictment returned in the U.S. District Court for the Western District of Missouri charged Vickie S. Cabrales with various charges of money laundering. The incident alleged that Cabrales deposited $40,000 with the AmSouth Bank of Florida, of which she later withdrew $38,000. The money was traceable to illegal cocaine sales in Missouri. Cabrales moved to dismiss the indictment for improper venue. Because the money-laundering activity occurred entirely in Florida, the court dismissed two of the three counts against Cabrales. In affirming, the Court of Appeals noted that Article III, the Sixth Amendment of the Constitution, and Federal Rule of Criminal Procedure 18 required that a person be tried where the charged offense was committed. The court also noted that laundering alleged in the indictment occurred entirely in Florida and that the Government did not assert that Cabrales transported the money from Missouri to Florida.

Question

May a defendant in a federal money-laundering case in which all the transactions occurred in one state be prosecuted in a second state?

William H. Rehnquist:

We’ll hear argument now in Number 97-643, United States v. Vickie Cabrales.

Mr. Stewart.

Malcolm L. Stewart:

Mr. Chief Justice, and may it please the Court:

To obtain a conviction under the Federal money-laundering statutes, the Government must prove that the defendant engaged in a financial transaction, that the property involved in that transaction represented the proceeds of specified unlawful activity, and that the defendant knew that the funds were illegally acquired.

The Government has alleged in this case that respondent violated the money-laundering statutes by engaging in banking transactions in Florida using funds that were acquired through cocaine-trafficking activities in Missouri.

The question presented is whether venue was proper in Missouri, the place where the unlawful generation of funds is alleged to have occurred.

This Court’s decisions have recognized two principal criteria on which venue may be based.

First, a prosecution may ordinarily be brought in any district where conduct constituting an element of the offense occurs.

Second, where a particular effect is an element of a Federal crime, the prosecution may generally be brought in any district where that effect is felt.

For purposes of the present case, the crucial point is that neither of those bases for laying venue requires that the prosecution be brought in a district where the defendant personally committed an unlawful act.

In the Government’s view, Missouri is an appropriate forum for this prosecution on both of the foregoing approaches.

First, Missouri is the place where conduct constituting an element of the offense, namely the drug-trafficking crimes that generated the laundered funds, is alleged to have occurred.

Second, Missouri is the place where the harmful effects of respondent’s money-laundering were principally felt, since the evil of money-laundering consists of its capacity to conceal and thus facilitate the predicate crimes.

Finally, trial in Missouri furthers the purposes underlying the requirement that a criminal offense be prosecuted at the place where the offense was committed.

Now, both Article III of the Constitution and the Sixth Amendment require that a criminal offense be prosecuted at the place where the offense shall have been committed.

Sandra Day O’Connor:

Does it make any difference at all, Mr. Stewart, whether the defendant had any knowledge of the circumstances of the predicate offense or any link at all with the State in which that was carried out?

Malcolm L. Stewart:

To establish guilt under the money-laundering statutes the defendant would have to be shown to have known that the funds were illegally acquired, so to–

Sandra Day O’Connor:

Well, the defendant presumably could have been told by somebody, look, I got these funds illegally.

Maybe the defendant is told that in the State of New York by someone from Missouri, and the someone says, these are illegally obtained funds but I need your help to put them in a bank and do such-and-such with them.

Is that enough to prosecute in this case?

Malcolm L. Stewart:

–Yes, under our view it is.

That is, the defendant must be shown to have known of the unlawful origin of the funds, but you’re correct, the defendant doesn’t–

Sandra Day O’Connor:

Even if the defendant doesn’t know that the crime occurred in Missouri and–

Malcolm L. Stewart:

–That’s correct.

Sandra Day O’Connor:

–was never there.

Malcolm L. Stewart:

That’s correct.

In mean, in this case there are more substantial contacts between the respondent and the Western District of Missouri, but you’re correct, under our theory that’s not an essential feature of the grounds for laying venue.

Sandra Day O’Connor:

Well, what cases do you think justify that particular approach?

Malcolm L. Stewart:

I think the two best cases in this Court would be Hyde v. United States and In Re Palliser.

Hyde v. United States involved a prosecution for conspiracy, in which the petitioners in this Court were prosecuted in the District of Columbia.

Malcolm L. Stewart:

They were not… for conspiracy.

They were not alleged to have personally committed an unlawful act in the District of Columbia, or ever to have been there, but it was held that because coconspirators had committed overt acts in furtherance of the conspiracy in the District of Columbia, that that was an appropriate venue, and–

Sandra Day O’Connor:

Well, I… it’s a little easier to see, isn’t it, in a conspiracy context.

Of course, you have a conspiracy charge here.

Malcolm L. Stewart:

–It… you’re correct that in some sense the link between the defendant and the coconspirators may be more direct than the link between the money-launderer and the persons who perpetrate the predicate crimes.

Nevertheless, to us the crucial point is that the evil of money-laundering is not that the transactions are per se unlawful or harmful.

The evil of money-laundering consists precisely of the fact that it assists in the concealment and thus the facilitation of the predicate criminal act–

Anthony M. Kennedy:

Well, what about receiving stolen property, one of the examples mentioned, I think, in one of the briefs.

Malcolm L. Stewart:

–I–

Anthony M. Kennedy:

You know, the property is stolen in State A, and then it’s received and resold in State B.–

Malcolm L. Stewart:

–It certainly is our theory that the prosecution could be brought in State A for much the same reasons, that because the evil of the offense is that it facilitates or conceals the crime that occurred in jurisdiction A, and because the harm of the crime is felt in jurisdiction A, it therefore makes sense to prosecute the offense there.

William H. Rehnquist:

–Well, how does receiving stolen property in New York conceal the existence of a crime, say, in Chicago?

Malcolm L. Stewart:

Well, for one thing, if the person in New York receives it and profits by it rather than, for instance, turning over the evidence to the police, in that sense it conceals the offense.

It certainly facilitates the offense in that the crime of stealing property is more profitable and therefore is more likely to occur if there are people out there who will–

William H. Rehnquist:

I can see how it facilitates it, but to say it conceals it, I really don’t follow that.

Malcolm L. Stewart:

–I guess it would be accurate to say it conceals it only if we compare the person who receives the stolen property to the person who becomes aware of the theft and reports it to the authorities.

Stephen G. Breyer:

I take it on your theory… how do you feel about controlled substances?

I mean, there are quite a few that the Attorney General has to put on a list or they’re not controlled, so does that mean as to any such substance every drug crime could be prosecuted, wherever it takes place, in Washington, D.C.?

Malcolm L. Stewart:

No, I don’t think so, because the Attorney General’s act of putting the controlled substance on the list would not in any sense be conduct that the ban on possession–

Stephen G. Breyer:

No, it’s not conduct exactly.

Malcolm L. Stewart:

–It would–

Stephen G. Breyer:

But isn’t it an element of the offense?

Malcolm L. Stewart:

–It’s no–

Stephen G. Breyer:

I mean, if the substance is not on the list, then you can’t prosecute the person for the offense.

Malcolm L. Stewart:

–It would not be conduct that it was the purpose of the controlled substance statutes to prohibit or deter, and I think–

Antonin Scalia:

Oh–

–Element of an offense is not a separate justification, as you said in your initial presentation.

Malcolm L. Stewart:

–I–

Antonin Scalia:

Is it or isn’t it?

Malcolm L. Stewart:

–Element of the offense is not a universal justification.

Malcolm L. Stewart:

I said in the opening statement that typically the crime–

Antonin Scalia:

It’s not sufficient, then.

Malcolm L. Stewart:

–That’s correct.

Stephen G. Breyer:

So what else do you… I mean, it’s… your theory is that although all the conduct relevant here took place in Florida, I take it, but there was some element of the offense that took place in a different State, that that element of the offense does give venue, but my element of the offense, putting the drug on the list, doesn’t give venue, because?

Malcolm L. Stewart:

Well, I would dispute the proposition that all of the conduct that’s relevant here occurred in Florida.

It’s true that the only conduct in which the respondent–

Stephen G. Breyer:

Yes, all the conduct… and similarly the Attorney General’s conduct of putting a drug on a list took place in Washington, D.C., but that conduct which created an element of the offense does not count for venue, but here the conduct of the activity and element of the offense in Missouri does, because–

Malcolm L. Stewart:

–There’s an intensely practical reason for that, that is that the central purpose underlying the constitutional requirement that the crime be prosecuted at the place where it was committed was to facilitate the production of relevant evidence, and it’s very likely, in money laundering prosecutions generally and in this case in particular, that the fact that specified unlawful activity generated the funds will–

John Paul Stevens:

–Do you really think that provision was designed to protect the Government’s interest in getting evidence?

Malcolm L. Stewart:

–I don’t think it was designed to–

John Paul Stevens:

Not to protect the defendant’s interest–

Malcolm L. Stewart:

–I–

John Paul Stevens:

–in being tried at home?

Malcolm L. Stewart:

–I think… well, it was designed to protect the defendant’s interest, but clearly if the Framers had been concerned only with the defendant’s convenience, or with the right of the defendant to be tried at home, the Constitution would say that the defendant has a right to be tried in the district of her residence.

The Constitution doesn’t say that.

It recognizes that the defendant’s… the interest in the defendant’s convenience should not be so overwhelming as to frustrate–

John Paul Stevens:

Prevent him from being tried where he goes and commits a crime.

But to let him be tried where somebody else committed a crime across the country and shipped goods to him he fenced, that’s a rather novel proposition.

Malcolm L. Stewart:

–Well, I think it is consistent with the prin–

Ruth Bader Ginsburg:

Mr. Stewart, in the Constitution… this is mentioned twice in the Constitution, and in the Sixth Amendment it says, the accused shall enjoy the right, so apparently the people who wrote that thought… the right to be tried in the district wherein the crime shall have been committed, enjoy the right.

So it’s a little hard to say that they saw that mainly in terms of where… the convenience of the prosecution, as opposed to the right of the defendant.

Malcolm L. Stewart:

–I’m not suggesting that they put the provision in there in order to protect the prosecution.

What I am saying is that they… the constitutional provisions represent a balancing of the defendant’s and the Government’s interest.

That is, if the Framers had wanted to protect the convenience of the defendant at all costs, they could have said the defendant has the right to trial in the district of her residence.

They could even have said the defendant has the right to trial in whatever district she chooses.

As the Court–

Ruth Bader Ginsburg:

But it is the idea of the jury of the vicinity where the act was committed, and you have dealt with the Attorney General and the list, but what crimes?

To get an idea of the dimensions of what we’re talking about, so far you’ve mentioned receiving stolen property would be analyzed the same way as money-laundering.

There’s one example in the cases of jury tampering.

The jury is sitting in D.C. but the tampering is done in Maryland.

Ruth Bader Ginsburg:

What else?

What other crimes present this problem, where all of the conduct is in one State, but it’s in aid of something that went on earlier in another State?

Malcolm L. Stewart:

–Well, in terms of something that went on earlier, I think there isn’t so much authority.

The principle is well-established in cases, for instance, involving aiding and abetting, where a person in jurisdiction A assists in the planning or preparation for a crime that’s to occur–

Antonin Scalia:

But that–

–That, like conspiracy, is a crime where you are being held responsible for acts done by other people.

I think you have to set aside aiding and abetting, just as you set aside conspiracy.

Malcolm L. Stewart:

–Well, it is true that respondent is not being held responsible for the drug-trafficking crimes in the sense of being prosecuted for distribution of narcotics or for conspiracy to distribute narcotics, but I think it’s nevertheless accurate, in a sense, to say that she is being held responsible for those acts.

In the–

Ruth Bader Ginsburg:

But if we could take the substance of it, is what I’m… let’s assume we’re talking about just a single defendant, no aiding and abetting, so I know from the cases that there’s receiving stolen property, and there’s jury tampering, and there’s money-laundering.

What else?

Malcolm L. Stewart:

–I think perhaps the best example would be offenses involving the use of the mails, or the channels of interstate commerce, where Congress has provided by statute that those offenses can be prosecuted in any district, for instance, where the mail was sent, where the mail was received, or even in a district through which the mail passes in transit, and the idea is that even though the defendant may not personally have been present in the district of receipt, nevertheless she is responsible for harm occurring in that district by–

Antonin Scalia:

Well, is that it, or she is using the mails wherever she sends her letter.

She’s using the mails where it’s received, she’s using the mails where it’s transported through.

I don’t think that’s a good example.

Malcolm L. Stewart:

–I think… it… I think it is a good example, at least to the extent that it shows that the Constitution does not guarantee the defendant the right to trial in a district where she personally acted.

Antonin Scalia:

Oh, sure, but that’s not the contention being made here by the defendant, I don’t think.

And the Palliser case really is the mailing in one district to a postmaster in another district a solicitation that’s unlawful, and it seems to me that that falls considerably short of showing that the Government should prevail here.

Malcolm L. Stewart:

Well, I think the Palliser case involves–

William H. Rehnquist:

I think it’s Palliser.

Malcolm L. Stewart:

–Oh, Palliser.

William H. Rehnquist:

Have you read the Trollope novels, the Palliser novels?

I think those are always pronounced Palliser.

Malcolm L. Stewart:

Okay.

I’m sorry, Your Honor.

The Palliser case involved the use of the mails.

The Palliser case also cited authorities dealing with the crime of murder, that established that the crime of murder may typically be prosecuted at the place where the fatal blow… the fatal force was struck or the poison administered, even if that was not the place where the defendant acted, for instance, the hypothetical which appears to have arisen, at least on occasion, where a person standing in jurisdiction A shoots a gun across the border and hits a person in jurisdiction B.–

So I think the Court in Palliser was not announcing a holding that was unique to the mail setting.

Rather, it was relying on a more general principle that a person may be held accountable for harm caused in another jurisdiction even if he never sets foot there.

Anthony M. Kennedy:

So your–

Anthony M. Kennedy:

–Well, but there’s a difference, it seems to me, in prospective and retroactive.

Under your view, as I understand it, if methamphetamine is manufactured in Arizona and it goes through about four different distributors and ends up in New York, you’re going to be able to prosecute the New York, what do you call him, mule, or the ultimate seller in Arizona.

I think that’s what you’re saying, and… but that’s, to me, backward-looking.

Now, if he… if the defendant intends to cause or should know that what he does will have a prospective effect in some other jurisdiction, that’s quite different.

Malcolm L. Stewart:

I mean, I think Your Honor is correct in saying that the defendant in a money-laundering case doesn’t cause the narcotics-trafficking activities to occur, but I think it’s nevertheless the case that the harm of those… the money-laundering activities is felt in the district where the predicate crimes took place.

That is, the transactions prohibited by the money-laundering statutes are not prohibited because they are per se harmful.

They are prohibited because they assist in the concealment and facilitation of the underlying crimes.

Anthony M. Kennedy:

You’re not backing away from my description of your position as to the meth prosecution being in Arizona, even though it was sold by someone who has never been in Arizona and it’s gone through three different stages and it’s in New York City?

Malcolm L. Stewart:

I guess I’m not sure about the precise scope of your hypothetical.

Anthony M. Kennedy:

Well, the hypothetical is that meth is manufactured in Arizona, it’s sold by two or three different people, and it’s finally sold by some guy on the street in New York, and it seems to me, under your point of view, this street seller can be prosecuted in Arizona, because that… it makes the meth laboratory work to have this little distribution network.

Malcolm L. Stewart:

I think that may not be accurate, because I think in the prosecution of the street seller it would not in any sense be an element of the crime, where… we would not typically show–

Anthony M. Kennedy:

But you’re not relying on elements of the crime.

Malcolm L. Stewart:

–Well, we are relying on effects to the extent that they are elements of the crime.

That is, here it’s not simply the case that the money-laundering did facilitate the drug-trafficking activities.

It’s the case that in order to obtain a conviction for money-laundering, we would have to show that the funds were–

Stephen G. Breyer:

Use Justice Kennedy’s example with counterfeiting.

Malcolm L. Stewart:

–I’m sorry.

Stephen G. Breyer:

Use Justice Kennedy’s example with counterfeiting.

I mean, you have the person passing the $10 bill, but the bill was counterfeited in Arizona.

Malcolm L. Stewart:

I think that probably would fall under our theory, although I think that’s a harder case, because the harm in that case would be felt where the counterfeit bill was passed, and not where the bills were manufactured.

Again, to return to–

Anthony M. Kennedy:

Oh, you mean the Government doesn’t think there’s any harm in having a counterfeit organization in a particular community?

Malcolm L. Stewart:

–There’s harm in having the counterfeit organization.

I mean, hypothetically, if you had an individual who, as a hobby, liked to counterfeit bills simply for the artistry of it, never did anything with them, it wouldn’t cause any harm.

Now, the statutes prohibit that simply because it would be hard to detect the activity going on if you couldn’t go after the counterfeiting, but the harm that results from counterfeiting bills occurs at the moment they’re passed to innocent people, and to return to Justice Ginsburg’s question for a second, I think you were right that part of the purpose of the Sixth Amendment’s guarantee of a right to trial in the place where the crime shall have been committed is to assure that a jury from the relevant community sits in judgment upon the accused, but in our view, the relevant community here is the Western District of Missouri.

That is–

David H. Souter:

Well, but Mr. Stewart, may I ask you a question that goes one step further on that question of purpose.

The reason for selecting the community that the Constitution has done in the vicinage provision historically, as I understand it, was to select a jury from the place where the evidence was going to be found.

Originally, if you go far enough back, it reflects the fact that the jury in fact supplied evidence.

Later on the theory was still maintained and, as I understand it, the theory was maintained in order to prevent the Crown or later the Government from taking people from the places where they are accused of having committed a crime, spiriting them away to another part of the kingdom, or another part of the country, where the Government can, with its power, get all the evidence it wants, but where the individual is probably not going to be very effective in getting any defense evidence.

David H. Souter:

Now, assuming that that… and I think that’s a fair statement of at least an important historical consideration.

If that is so, then it is not… not only is it, I suppose, not a positive justification for the position that you take, but it shows that the kind of evidence that you want to prove these nonact elements really is the kind of evidence that the provision is not concerned with at all.

For example, the fact that the money was counterfeited somewhere is not an important fact.

All the Government has got to prove is that the counterfeiting, the counterfeited bill was passed at the place where the defendant committed that particular crime.

So that it seems to me that no purpose within the Sixth Amendment is served by having a jury anywhere except in places where the evidence either of the cause or the effect of the crime is likely to be found, so if we get into purpose, it seems to me that purpose argues against you.

Am I wrong in my assumption about the purposes?

Malcolm L. Stewart:

–I think you are right in your assumption about the purposes, and I… we would respectfully disagree with the assertion that the purposes are not served here.

That is, in the instant case, for example, it’s very unlikely to be a fact in dispute that the banking transactions which are alleged to have occurred in Florida actually occurred as stated in the indictment.

It’s conceivable that that will be disputed, but it’s unlikely.

What is most likely to be disputed if this case goes to trial is, first, whether the money was unlawfully generated and, second, whether the respondent knew it.

Now, you’re correct in saying that it’s possible that we could prove the money was unlawfully generated without proving where the predicate crimes occurred, but certainly a very good way of proving that the money was unlawfully generated would be to prove the circumstances underlying the drug-trafficking activities, particularly in a case where the Government has already gotten a conviction for the drug conspiracy that is alleged to have generated the laundered funds.

David H. Souter:

The counterfeiting case, that wouldn’t apply.

That reasoning wouldn’t apply.

I suppose that reasoning wouldn’t apply in the case of the felon in possession of the firearm.

You pointed out in your footnote that you’re not suggesting that the place of the firearms manufacture would provide venue, but I do suppose that on your theory the place of the predicate felony would be within your choice of venue, and yet the only thing you have to prove is, in fact, that a felony was committed, which you do by record.

There’s no need to go to that jurisdiction.

Malcolm L. Stewart:

I don’t think it follows that the place where the felony was committed would be an appropriate venue.

First, we wouldn’t be proving conduct, because it wouldn’t be necessary or even permissible in a 922 (g) prosecution for us to present independent evidence that the defendant had actually committed the prior crime.

We would simply be introducing the judgment of conviction or relying upon a stipulation.

But the… as to the counterfeiting, I think that the… having the trial in the district where the counterfeiting took place might or might not be a sensible venue.

That is, if the Government–

David H. Souter:

Why might it be?

Malcolm L. Stewart:

–It might be because I assume that an element of the offense of passing counterfeiting money is that the person knew that it was counterfeited and, at least in some cases, one of the ways of proving that the defendant knew that the money was counterfeit was to show that he was the one who manufactured it and perhaps took it to distant locations to pass it, but that he was involved in the operation.

So depending on the facts of an individual case, evidence concerning the circumstances upon… under which the money was manufactured might or might not be relevant to the prosecution.

David H. Souter:

Well, I suppose if that’s what you’re going to rely on for proof you would prosecute him for manufacturing the counterfeited bill in the jurisdiction in which he did it.

Malcolm L. Stewart:

We might prosecute him for that.

We could also have a circumstance… we could also have cases in which it was clear that money had been passed from jurisdiction A to jurisdiction B, and the circumstances under which the counterfeiting occurred would be relevant to the prosecution.

Antonin Scalia:

I’m not sure you have to win the counterfeiting case in order to win this case.

As I understand your theory that you’re giving us now, I’m not sure it is the same as the one that was in your briefs.

You are… you’re insisting upon two things before you can try this person in Missouri, number 1, that the act which occurred in Missouri be an element of the crime, but not that alone.

Antonin Scalia:

In addition, that element must be the whole purpose… in the counterfeiting case I guess you’d say must be one of the purposes, but here you say that the whole purpose of the crime for which she’s prosecuted is to prevent what occurred in Missouri, so it’s element, plus the whole purpose of the crime in Missouri is to prevent the drug dealing in Missouri.

Malcolm L. Stewart:

I wouldn’t say the whole purpose, but I would say–

Antonin Scalia:

You wouldn’t say the whole purpose?

Malcolm L. Stewart:

–I–

Antonin Scalia:

I mean, what do you care if somebody launders money if it’s not… you know, you’re trying to stop the drug-dealing?

Malcolm L. Stewart:

–I mean, I would say… I’m sorry if I misspoke.

I wouldn’t say that our test is that the whole purpose of the statute has to be to–

Antonin Scalia:

Oh, I know, because you want to reach further, but in order to win this case I don’t have to agree to go any further, do I?

Malcolm L. Stewart:

–I think that’s absolutely correct, and I think certainly we would acknowledge that there is indeterminacy at the margins as to the way that certain cases should come out.

David H. Souter:

Well, sure.

In the felon-in-possession case you would certainly be able to argue that one reason for penalizing the possession of the handgun later is to discourage felonies generally, so that the original felony is within the purpose considered by the felon-in-possession statute.

Malcolm L. Stewart:

That seems to me at the margins.

I think the other thing I would point to as to the felon-in-possession cases, where they were talking about the location where the underlying felony occurred, or the location where the gun was manufactured, is that in a sense, whether venue would be proper at those sites under the statute or the Constitution is a rather abstract question.

That is, there is a Federal rule of criminal procedure that provides for change of venue in criminal cases even–

John Paul Stevens:

May I ask about your suggestion that the fact the money was illegal… the taint of the money occurred in Missouri makes venue proper there.

Supposing that was everybody’s understanding, that the money was tainted, with the proceeds of drug transactions in Missouri, but the proof at the trial, they brought in an accountant who proved yes, it was illegal, but actually illegality occurred in Illinois, would that mean that the element of the offense that it was illegal money had not been established?

It isn’t the place where it occurs.

It’s what occurs, isn’t it?

Malcolm L. Stewart:

–Well, it’s the place where the funds were unlawfully generated, and–

John Paul Stevens:

But supposing you’d alleged Missouri, you thought it was, and it turned out… on proof it turned out they were actually done right across the river in Illinois.

Malcolm L. Stewart:

–The–

John Paul Stevens:

Would you lose the case?

Malcolm L. Stewart:

–We would lose the case.

John Paul Stevens:

You would not.

Malcolm L. Stewart:

We would lose the case.

John Paul Stevens:

You would lose the case.

Malcolm L. Stewart:

That is–

William H. Rehnquist:

It would be dismissed for improper venue.

Malcolm L. Stewart:

–That’s correct.

We would lose it for improper venue.

Malcolm L. Stewart:

That is, even if–

John Paul Stevens:

Now, assume he’s tried in… assume she’s tried in Florida.

I’m assuming there’s no venue problem.

Malcolm L. Stewart:

–Oh.

John Paul Stevens:

I’m just talking about the element of the offense.

When you say the element of the offense is that the illegal drugs transactions occurred in Missouri, say you… they actually proved that occurred across the river, would the offense not have been proved?

Malcolm L. Stewart:

No.

It is not necessary to prove the location in that sense, but that really seems to us analogous to the situation involving use of the mails, where the Federal statute says that offenses involving the use of the mails may be prosecuted in any district through which the mailed matter passes.

That doesn’t mean that the Government in a prosecution involving use of the mails has to prove the identity of all those districts.

It simply means that if we do, we can lay venue there on that basis.

Stephen G. Breyer:

When the conduct that occurs in a different place, like Missouri here, is not conduct that has been engaged in by the defendant, as is true here, you say it has to be an element of the offense, and it has to be the purpose of the statute, to get at it?

Malcolm L. Stewart:

I would say if the defendant could show that that act, while an element of the offense, is manifestly not the act that Congress was attempting to–

Stephen G. Breyer:

Does that mean that that act has to be bad in some way?

I mean, what I’m thinking of, suppose under your test the act in the distant place considered apart from the conduct in Florida, or the close place, is fine.

Nothing wrong with an act like that.

It’s only when it takes place… that’s true, of course, in dozens of statutes.

I mean, then does your test get it, or not?

Malcolm L. Stewart:

–I think it does get it.

I mean–

Stephen G. Breyer:

It does get it.

Malcolm L. Stewart:

–We would say in these cases that–

Stephen G. Breyer:

All right.

Well, if it does get it, then I’m back to my listing of the drug in dozens of… because that’s an element of the offense, and it’s connected… I mean, it’s nothing wrong with it in itself, but nothing’s wrong with a lot of things in themselves.

Malcolm L. Stewart:

–I think as a practical matter another way of coming at it is to say that the District of Columbia wouldn’t be an appropriate venue in the hypothetical regarding the listing of the drugs because trial in that district would manifestly fail to serve the purposes underling the constitutional requirements.

That is, it’s extraordinarily unlikely that the fact of the listing is going to be a matter in dispute at trial, and the district–

Stephen G. Breyer:

Sounds as if it’s getting a little ad hoc, this test.

The… I mean, what I’m thinking is, the other case, of course, if I’m in California and I steal by mail, you know, something that was… the property was in New York, I would have thought normally you could try the person in New York, but there’s nothing wrong with taking property in New York and moving it unless, of course, this conduct went on in California.

Malcolm L. Stewart:

–I guess one of the things I’d like to focus on is, on the facts of this case, this is… the Western District of Missouri seems to us to be manifestly the sensible district to try the case.

We have a defendant who was a resident of Missouri.

Her lawyer is a resident of Missouri.

Malcolm L. Stewart:

The Federal prosecutor who is immersed in the details of the case is–

Ruth Bader Ginsburg:

Mr. Stewart, may I ask you, what practical difference does it make?

You have the conspiracy, so you’ve got her on that, and then at sentencing relevant conduct can be taken into account, so what are we talking about in terms of the defendant’s exposure, whether you can have it all tried in Missouri, whether you have to split the trials?

Malcolm L. Stewart:

–I think the main difference is that if we are limited to the conspiracy charge in Missouri we would have to prove an agreement in addition to… an agreement to launder money in addition to the money-laundering offense.

If I may, I’d like to reserve the balance of my time.

William H. Rehnquist:

Very well, Mr. Stewart.

Mr. Rogers, we’ll hear from you.

John W. Rogers:

Mr. Chief Justice, and may it please the Court:

The Government’s essential-but-not-essential-all-the-time elements test has no objective content and, if applied consistently, will produce absurd results that violate the constitutional venue provisions.

In contrast, the framework that respondent offers is the analysis that this Court has used over and over again when it has confronted a venue question in this century.

It’s what it did in Armour Packing, it’s what it did in Freeman, Lombardo, Mid-State Horticultural Company, Johnson, Anderson, Johnston, Cores, and Travis.

That is, it looked at the statute and said, what is the proscribed conduct, and then… the actus reis… and then it said, where was that conduct performed, and then, that is where venue lies.

The Government’s essential elements test abandons this precedent and offers an unworkable result.

Money-laundering is conducting a financial transaction under certain circumstances in the case of a 1956 violation, and it’s engaging in a monetary transaction in a 1957 violation.

Clearly, the conducts that’s prohibited are the proscribed financial transactions.

They have nothing… it is not the narcotics activity.

That is a separate and distinct crime.

In that sense, this is a straightforward case of statutory construction.

This is simply not a continuing offense.

It’s a crime that was committed entirely within Florida, and that is where it should be prosecuted.

Ruth Bader Ginsburg:

So could Congress provide… you say this is a straight question of statutory interpretation that we have, this venue statute.

Suppose Congress was explicit that a place of proper venue is the place where the funds later laundered were first generated?

John W. Rogers:

I think that if Congress was to define money laundering where venue would be proper where the underlying unlawful activity–

Ruth Bader Ginsburg:

That’s not defining the crime.

It’s a venue statute and it says, the crime of money-laundering defined… however it is now defined.

For that crime, the prosecution can be brought in either of two places.

John W. Rogers:

–I believe that statute would violate the Constitution when… in the cases when the crime was not committed where it’s tried, so I don’t think that that would pass constitutional muster.

Ruth Bader Ginsburg:

So we’re dealing not merely with a question of statutory interpretation, but one that you say is constitutionally compelled.

John W. Rogers:

I think… I believe the Constitution compels that the trial be had where the crime is committed, and if the trial is not had where the crime is committed, I think it will violate the Constitution.

William H. Rehnquist:

Well, that’s really tautological.

William H. Rehnquist:

I think we’d all agree with that.

That the Constitution does require that trial of all crimes shall be held in the State where the crimes were committed, and if it’s held someplace else, it violates the Constitution, but I think we need a little more fine-tuning here than that.

John W. Rogers:

Well, this Court has said when it… to look… to determine where the crime is committed, you must look at the acts of the defendant that violate the statute, and that’s why you can’t divorce what the proscribed conduct is from the Constitution.

Sandra Day O’Connor:

Well, in this situation, if the Government were to allege and show that the defendant had, indeed, conspired and participated in the drug offenses in Missouri and had agreed that there would be money-laundering, could she be tried in Missouri?

John W. Rogers:

She could be tried in Missouri–

Sandra Day O’Connor:

For the money laundering that occurred in Florida?

John W. Rogers:

–If it was a conspiracy to launder money, possibly, under that hypothetical, she could be.

She could not be tried in Missouri for a subsequent violation of money laundering.

Sandra Day O’Connor:

Well, was she–

–Well, how do you–

–Was she charged with conspiring with Missouri defendants concerning laundering of drug proceeds?

John W. Rogers:

She was.

That’s Count I of the indictment.

Sandra Day O’Connor:

And does that mean that the laundering offense started in Missouri, in effect, because that was the conspiracy agreement?

John W. Rogers:

Well, conspiracy, of course, punishes the agreement to commit the illegal act, so in the sense that the agreement was formed in Missouri and there were overt acts in Missouri, venue would be proper for a conspiracy prosecution in Missouri.

Antonin Scalia:

Or even if the agreement was formed in Missouri and there… or the agreement was formed in New York and there were overt acts in Missouri.

John W. Rogers:

That is correct, Your Honor.

That’s what Hyde holds.

This, of course, isn’t a conspiracy… this case doesn’t involve a conspiracy.

Antonin Scalia:

But how do you square that with your interpretation of the Constitution?

How do you square that?

I mean, it’s fine to say, as I said to Mr. Stewart, that… you know, that conspiracy is different, and aiding and abetting is different, but how do you square treating them differently with your constitutional point?

John W. Rogers:

In both those cases, in the conspiracy context and in the aiding and abetting context, you have a situation where the defendant herself or himself would be legally liable for the conduct of another, so in that sense the crime is committed in that district where the other acts that they’re legally liable for.

You do not have that in a substantive violation of money laundering.

There is no acts of others that the defendant’s legally liable for.

Antonin Scalia:

That’s… okay.

That’s so for conspiracy.

The co-conspirators are effectively agents of the defendant, you can say.

What about aiding and abetting?

John W. Rogers:

Aiding and abetting is… by a statutory matter it says that an aider and abettor can be prosecuted as a principal, so in that sense I think the aider and abettor is legally liable for the actions of the principal.

William H. Rehnquist:

Mr. Rogers, you… I… am I correct in thinking that there is a conspiracy charge here against your client in connection with one of the pending counts?

John W. Rogers:

That is correct, Your Honor.

William H. Rehnquist:

Then why doesn’t Hyde cover this case?

John W. Rogers:

Venue has to be looked at for each crime that is charged.

While the conspiracy to launder money may or may not be proper in Missouri based on the proof that the Government may or may not be able to make, it’s clearly not proper for the substantive violation of money laundering.

William H. Rehnquist:

So you say all we’re talking about here is the substantive offense, not the conspiracy?

John W. Rogers:

Conspiracy is not at issue in… on… in this case at all.

Ruth Bader Ginsburg:

You didn’t contest venue, or whoever was representing the defendant didn’t contest venue with respect to the conspiracy count.

John W. Rogers:

No, that’s not correct, Your Honor.

I did–

Ruth Bader Ginsburg:

You did?

John W. Rogers:

–I filed the motion to dismiss based on all three counts on venue.

The district court sustained it as to the two substantive violations, denied it as to the conspiracy.

I believe that that was a correct decision, not because I believe venue’s proper on conspiracy, but I think the Government should have an opportunity to be able to prove that venue’s proper on a conspiracy, meaning they should have an opportunity to prove that the agreement was formed in Missouri, overt acts were carried out in Missouri and, thus, the prosecution can properly lie in Missouri.

On… as far as the substantive violations that the district court did dismiss, they failed on their face.

There is no possible way venue is proper on those two cases, and that’s why they were dismissed.

Ruth Bader Ginsburg:

But on appeal the only question related to the money laundering, not to the conspiracy, is that right?

John W. Rogers:

That is absolutely correct, Your Honor.

Ruth Bader Ginsburg:

So that’s what’s before us for review.

You pursued the conspiracy only in the district court.

John W. Rogers:

I’m sorry, I–

Ruth Bader Ginsburg:

The… you pursued the venue objection on the conspiracy count only in the district court, not in the court of appeals.

John W. Rogers:

–That is correct.

The Government made an interlocutory appeal on the two dismissed counts, and so at the Eighth Circuit, they, likewise, didn’t consider the conspiracy issue at all.

Antonin Scalia:

What if the Government enacts a statute that says, a person who launders money derived from a illegal enterprise, drug sales, for example, shall be deemed an aider and abettor of the illegal enterprise?

John W. Rogers:

If they were, in fact… I… if… in that situation, if they in fact–

Antonin Scalia:

This same statute, just calling your client an aider and abettor of the drug dealing.

Then she could be prosecuted in Missouri, I guess.

John W. Rogers:

–That is correct, Justice–

Antonin Scalia:

The court just said it wrong.

John W. Rogers:

–Or she would have to aid and abet the drug dealing.

They would have to prove that because that would be what the statute would… that would be the proscribed conduct of the statute.

Antonin Scalia:

Well, the statute says that the act of enabling the drug dealers to get the benefit of their drug dealing by rendering the money usable, laundering it, constitutes aiding and abetting of the drug dealing.

That’s what the statute says.

John W. Rogers:

That’s… in your hypothetical–

Antonin Scalia:

Yes.

John W. Rogers:

–If that’s what the statute–

Antonin Scalia:

I’m making it up.

John W. Rogers:

–Yes.

I think if that is what the statute said, and they in fact aided and abetted the drug dealers by laundering their money–

Antonin Scalia:

Right.

John W. Rogers:

–then you could be proper where the underlying illegal activity happened.

Antonin Scalia:

It’s not much of a constitutional protection, is it, if it just turns on how the statute was framed.

If you could frame a statute that way, why don’t you say, effectively that’s the same thing going on here.

Then you ought to be able to try your client in Missouri.

John W. Rogers:

I would respectfully disagree that it’s not a constitutional protection, since because what you have done is, you have created a statute that penalizes different conduct than the money-laundering statutes at issue.

Of course, if you had… if the statute said, anyone who participates in a narcotics enterprise by agreeing to launder their money, they could be prosecuted in Missouri.

I agree with you completely.

But in that sense, they would be involved–

William H. Rehnquist:

Well–

John W. Rogers:

–and they would be legally liable for the people that–

William H. Rehnquist:

–Well, but what would happen, Mr. Rogers, if your client were charged with aiding and abetting, and that was the only basis for venue in Missouri, and the court concluded after all the evidence was in that she may have done something, but that she did not aid and abet.

Would that mean dismissal for want of proper venue?

John W. Rogers:

–On the hypothetical that Justice Scalia gave, yes.

William H. Rehnquist:

No, on the hypothetical that I gave.

John W. Rogers:

I’m sorry, I didn’t follow that.

I–

William H. Rehnquist:

Well, what I’m trying to get at is, if the basis for venue were a charge of aiding and abetting, and the court were to decide there just is insufficient evidence of aiding and abetting as to this particular individual, would the next step be to dismiss the case against that individual for improper venue?

John W. Rogers:

–Well, I think you would dismiss it for failure of proof on the substantive–

William H. Rehnquist:

Failure to prove that–

John W. Rogers:

–That they aided and abetted, yes, and–

William H. Rehnquist:

–Well, what if they were charged both with a substantive offense and with aiding and abetting, and the district court says, there’s enough here to go to the jury on the substantive offense, but there isn’t enough on aiding and abetting?

John W. Rogers:

–Once again, I think my answer would be the same.

I think it would be a failure of proof on the aiding and abetting count, and if there was enough to go to a jury on the substantive violation, it would go to a jury.

William H. Rehnquist:

Even though were venue were based only on the aiding and abetting?

John W. Rogers:

Oh, no, no.

I misunderstood what you were asking.

Venue has to be proper for each count that’s charged.

You can’t bootstrap venue by getting venue proper on one count and then saying it’s proper for any count we choose… that the Government chooses to join.

I clearly–

Ruth Bader Ginsburg:

If that were so there would be no problem here, because she was indicted on the conspiracy count.

John W. Rogers:

–Correct.

Ruth Bader Ginsburg:

If that’s all that matters, then you could link the other two.

John W. Rogers:

In that sense, this is no different from many cases where, if you have a huge conspiracy of a criminal enterprise, that they can… the Government can only join the counts in the district where the crime was committed if they were… even if they were substantive violations in furtherance of the conspiracy.

They can’t bring those substantive violations that weren’t committed in the district.

They have to choose the best district where the crime was committed and, of course, if it’s… they could… for sentencing purposes they could, of course, bring that in as relevant conduct as–

Ruth Bader Ginsburg:

That’s one of the questions I was asking Mr. Stewart.

I’m trying to determine the practical consequences for your client, if you should prevail and say, they have to deal with the money laundering in Florida.

Still, let’s say she’s convicted of the conspiracy in Missouri, and they can take account of the money laundering as relevant conduct, what’s the difference in terms of–

John W. Rogers:

–There’s–

Ruth Bader Ginsburg:

–her exposure?

John W. Rogers:

–You’re right on the money, Your Honor.

There’s very little difference.

When you have a conspiracy count and an aiding and abetting, this case becomes very unimportant.

I don’t see the importance to it as far as the Government’s concerned.

Antonin Scalia:

Why is aiding and abetting different from this statute?

You say that the Government can enact a statute, which is called an aiding and abetting statute, which will render your client liable to be hauled into Missouri to defend the case simply because the Government says that the essence of the crime is aiding and abetting.

Here, the Government has said that the essence of the crime is laundering, not just any money, or doing this financial deal not just with any money, but with money that was the product of a drug… of a drug enterprise.

Why can’t… why doesn’t that suffice, just as an aiding and abetting statute would, to enable your client to be tried in Missouri?

John W. Rogers:

Your Honor, if I said that just because the Government said she aided and abetted, venue would be proper in Missouri, I clearly misspoke.

John W. Rogers:

The Government would need to prove she aided and abetted.

Antonin Scalia:

No, when I say the Government said it.

I mean, the Government said it when it enacted the statute.

It simply defined the crime in a way that makes it an aiding and abetting crime.

Now, why is that magical?

Why isn’t it enough if the Government defines the crime in such a way that there has to have occurred in Missouri, or somewhere… in this case it happened in Missouri… an unlawful acquisition of money?

John W. Rogers:

I go back to the Constitution.

You… if the Government defines a crime where the act of the crime is committed in a certain district, venue’s proper.

Antonin Scalia:

But in aiding and abetting, the act that she’s aiding and abetting did not occur in Florida, it occurred in Missouri, and here the act that she’s facilitating, the drug deal, did not occur in Florida, it occurred in Missouri.

What’s the difference–

John W. Rogers:

I… the difference–

Antonin Scalia:

–for constitutional purposes?

John W. Rogers:

–Well, for constitutional purposes, in an aiding and abetting situation you’re legally liable for the acts of others, so the crime can be committed.

Antonin Scalia:

So here, you are legally liable… you’re being punished in part because of the acts of others, the drug transaction.

John W. Rogers:

In an aiding and abetting situation, I don’t disagree with that.

Of course, this–

David H. Souter:

Mr. Rogers, may I interrupt with this suggestion, because this may be what’s defeating the joinder here.

Don’t you, on your theory, have to make a distinction between aiding and abetting which, in fact, facilitates the commission of the crime in the first place and aiding and abetting after the fact of the crime that involved no pre-criminal agreement?

Your theory… the reason I pose the question that way is this.

I thought your theory for reconciling conspiracy and aiding and abetting liability with the Constitution was something like this: the person charged with aiding and abetting in effect is like an agent of the individual who actually commits the criminal act, what you call the actus reis, and therefore when the agent acts, the agent is, in fact, acting for the aider and abettor, acting for the conspirator.

That works fine, it seems to me, until you get the situation in which the person charged with what we now call aiding and abetting was the individual who, under the old law, was called the accessory after the fact with no other connection, the person in… you know, when the crime is committed in State A, the felon flees to State B, goes to his friend and says, I’m on the lam, let me hide out.

Letting him hide out has nothing to do with the effectiveness of the crime that he committed in State B. It simply has to do with whether he’s going to get caught or not.

Don’t you have to distinguish between those situations and say, when the aiding and abetting is that kind of independent, after-the-fact accessory, then, in fact, you’re in a situation just like this and, in fact, that would not be a basis for venue in the State of the aiding and abetting?

John W. Rogers:

–Your Honor–

Antonin Scalia:

Take it, Mr. Rogers, take it.

[Laughter]

John W. Rogers:

–Thank you, Your Honor, and you are absolutely correct.

[Laughter]

In a situation when you’re an accessory after the fact–

David H. Souter:

And this is a case in which Justice Scalia may even agree with you.

David H. Souter:

[Laughter]

John W. Rogers:

–If you are an accessory after the fact you aren’t legally liable for the principals.

That is a… and that, you’re absolutely right, and that was briefed in the brief, and I think an accessory after the fact is a totally different situation, regardless if, Congress named it aiding and abetting and then essentially passed an accessory-after-the-fact statute.

I agree with that.

As far as the… the Government’s put forth two primary arguments, and one is that we can base venue on an act of confederates.

I think that clearly is not the case that we’ve discussed so far.

The other one is that the effects of the crime are somehow felt in Missouri.

I think that in that situation we’re getting… this is a very, very attenuated and very, very abstract effects argument.

Anthony M. Kennedy:

Suppose you intend the effects of the crime to be felt in Missouri, so that there is this prospective element?

John W. Rogers:

Sure.

I don’t think that would make any difference for venue analysis.

I think if you… for instance, if the Unabomber sent a bomb to New Jersey and intended to kill the president of a corporation and intended to harm that corporation, that doesn’t mean venue’s proper where the harm is felt.

Same if you commit murder and the widow is obviously affected by the murder that was committed, and even if you meant to affect the widow, that doesn’t mean venue’s proper there.

The crimes that are able to be had where the effect is felt are the crimes that are defined as in causing a certain result, like murder.

It’s not… that’s not defined as in terms of an act, like shooting.

It’s defined as in causing the death of a person, so where you cause the death of that person, yes, venue would be proper.

The same is true of obstruction of justice.

Antonin Scalia:

Well, you wouldn’t say that, I mean, what if you… you know, the Unabomber sends the bomb, it explodes and injures the person in New York, and he goes back to Darien, Connecticut, and dies in Darien.

Is the Unabomber triable in Darien?

John W. Rogers:

I believe that in certain situations that if you have a… where you commit the… like, if I shot someone and they didn’t die, and then they stumbled over to a different district and died, I believe that’s one of the rare situations when murder probably could be a continuing offense, and would be proper where the act of the… was committed and where the result was caused in that sense.

I wouldn’t have a problem with that analysis.

It’s kind of a far-fetched hypothetical and it probably wouldn’t happen very much, but at least in that–

Antonin Scalia:

Cases that we’ve decided which allow a Federal murder indictment where the person died and not where the act which caused the death was applied?

John W. Rogers:

–Well, I think that… go back to the Unabomber example.

I think that you could look at the act as mailing… or making a bomb and mailing it, and the person dies halfway across the country, but I think they can clearly be tried–

Antonin Scalia:

No, but the explosion occurs, the act which you produced occurs where the package is received, and then the person is taken to another State where he eventually dies.

I wouldn’t think it’s consistent with your theory to say that the Government can bring the indictment where the death occurs.

John W. Rogers:

–I’d have to agree with you.

I think I was getting a little carried away with myself.

I think in the sense where murder can be a continuing offense is where the act crosses the… in a sense where you shoot a gun across the border of–

Ruth Bader Ginsburg:

I’m not clear on your answer to that question.

You’re talking about the Federal prosecutor, but murder would ordinarily be prosecuted by the State, and do you mean to say that the State prosecutor in Connecticut could not bring in the Connecticut State courts a murder charge when somebody dies in Connecticut, even though the poison was administered someplace else and the person stumbled home before he died?

John W. Rogers:

–I think that if you… I’m not… I… were… I don’t think that if the person was shot in one district and then somehow they hopped on a plane and went somewhere else, I don’t think that State would properly be able to try a murder prosecution there.

Anthony M. Kennedy:

Suppose that the defendant intends the… his acts to have effects which it’s the object of the statute to prevent.

I’m thinking of your answer in which the widow grieves in some other State, but that… it’s not the object of the statute to prevent those effects, but suppose in this case the object of the statute was to make sure that this drug ring could continue to operate effectively.

John W. Rogers:

Well, if the statute was–

Anthony M. Kennedy:

And there was proof to that effect.

John W. Rogers:

–Sure.

If the statute was defined as then causing the narcotics enterprise to continue their activities by agreeing to launder their money, I think in that sense that they properly could be tried there.

Of course, that’s an entirely different crime than what the Government’s charged Ms. Cabrales with in this case.

They charge her with the substantive act of engaging in a financial transaction with… under certain circumstances with dirty money.

That is a far cry from a situation where someone’s… someone where the statute’s defined in the terms of causing a drug enterprise or a narcotics enterprise to continue.

And, in fact, they wouldn’t be able to prosecute her under this statute because she… the money laundering, even if it did occur, didn’t cause any drug enterprise to continue at all.

They were… the narcotics… as the Government points out, they’ve been convicted and tried.

It’s clearly stopped.

The money laundering was something that happened after the fact.

Ruth Bader Ginsburg:

Mr. Rogers, one aspect of this puzzles me and that is, this is presented to us as a very clean case.

She’s been charged just with the money laundering in those counts, nothing with transporting it, and in reality usually these questions don’t come up because it is a continuing offense.

She’s involved in the original trafficking, she’s involved in transporting it someplace else and in, finally, the money laundering, the beginning, the middle and the end.

But here, it was just presented so cleanly that the… that no, she had nothing to do with transporting the money.

She didn’t have anything to do with the original sales.

That seemed to me odd.

John W. Rogers:

Well, in that situation, in the crime you’re talking about, you’ve got a… you could have a conspiracy to launder money, or a conspiracy to distribute drugs.

Ruth Bader Ginsburg:

Who did transport this money?

How is it that she had nothing to do with that?

John W. Rogers:

I… frankly, I don’t know who transported the money.

I… there hasn’t been a trial on this.

Antonin Scalia:

Your answer should be, what money?

[Laughter]

John W. Rogers:

Assuming the money was transported… assuming the money was transported, that has nothing to do with the substantive violation of money laundering.

John W. Rogers:

The statute doesn’t prohibit transporting dirty money.

It prohibits–

Ruth Bader Ginsburg:

Yes, but I was just wondering why, on the Government’s side, there was this admission that she wasn’t involved in transporting, or that at least what they charged doesn’t involve that.

John W. Rogers:

–I couldn’t speak for the Government on that issue.

I don’t know why they did that.

Maybe because they are looking for a certain rule of law out of this case.

Ruth Bader Ginsburg:

That’s what I was wondering.

John W. Rogers:

I just don’t know.

If there are no further questions–

William H. Rehnquist:

Thank you, Mr. Rogers.

John W. Rogers:

–Thank you.

William H. Rehnquist:

Mr. Stewart, you have 1 minute remaining.

John W. Rogers:

As the exchange between Mr. Rogers and Justices Scalia and Souter indicates, really the respondent’s position stands or falls with the proposition that there is a constitutionally significant difference between being an aider and abettor and being an accessory after the fact, and I think the fact that Congress has chosen to define an aider and abettor as–

John Paul Stevens:

Of course, in the aider and abettor, you’ve got to aid something that hasn’t yet happened.

Let me ask you this.

What difference does it make to the Government in this case, if you can prove the conspiracy charge?

Don’t you get everything you need?

John W. Rogers:

–I think if we can prove the conspiracy charge, then presumably the money laundering–

John Paul Stevens:

Would be relevant conduct–

John W. Rogers:

–itself would be relevant conduct and probably the end result would be negligible.

It’s not necessarily the case that we could prove conspiracy simply because we could prove a substantive money… thank you, Your Honor.

William H. Rehnquist:

Thank you, Mr. Stewart.

The case is submitted.