Whitfield v. United States – Oral Argument – November 30, 2004

Media for Whitfield v. United States

Audio Transcription for Opinion Announcement – January 11, 2005 in Whitfield v. United States

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John Paul Stevens:

We’ll now hear argument in Whitfield against the United States and Hall against the United States.

Ms. Samek.

Sharon C. Samek:

Justice Stevens, and may it please the Court:

Congress enacted 18 U.S.C. 1956(h) for the sole purpose of increasing the penalties for money laundering conspiracies.

Congress did not intend to abandon the overt act requirement from money laundering conspiracies and for good reason.

The list of specified unlawful activities under 1956 is vast.

Anytime two or more people conspire or reach an agreement to commit a crime that generates economic proceeds, invariably the discussion will lead to what they’re going to do with the money get… that gets generated, how they’re going to spend the money, which is a potential 1957 offense, or how they’re going to hide the money, a potential 1956 offense.

The Government would charge these agreements as money laundering conspiracies without there even being a single overt act to demonstrate that criminal intent had crystallized, that a money laundering conspiracy was really afoot, and that steps were being taken to launder money, oftentimes triggering substantially higher penalties for the underlying offense, and subverting… subverting the overt act requirement for conspiracy to commit the underlying offense.

John Paul Stevens:

Would you just clarify one thing for me?

Do they have to prove an overt act in order to establish venue?

Sharon C. Samek:

Excuse me?

John Paul Stevens:

Does the Government have to prove an overt act in order to establish venue?

Sharon C. Samek:

Our position is that the venue provision in 1956(h) for money laundering conspiracies requires that they establish an overt act and that venue would lie–

John Paul Stevens:

Well, your… you say the… the statute requires.

I’m just asking if it independently of the conspiracy statute… of the… the substantive statute itself, how do they establish venue.

Do they have to prove an overt act just for the purpose of getting a venue established–

Sharon C. Samek:

–Yes.

John Paul Stevens:

–as they do–

Antonin Scalia:

Is that the only basis for venue?

I mean, I thought the statute provides that’s just one of the bases for venue.

Sharon C. Samek:

Our position is that the venue provision in 1956, 1956(i), is the exclusive venue provision for money laundering.

Antonin Scalia:

But… but read it.

What does it say?

Sandra Day O’Connor:

Are we talking about section 1956(i)?

Sharon C. Samek:

Section 1956(i) is the venue provision.

Sandra Day O’Connor:

And doesn’t it allow it to be brought where venue would lie if the completed money laundering offense that’s the object of the conspiracy has been accomplished or anywhere an overt act was committed?

Isn’t it an either/or?

Sharon C. Samek:

Yes.

Our position is that when you read the venue–

Sandra Day O’Connor:

So you don’t have to read it as requiring venue.

Sandra Day O’Connor:

It’s just requiring an overt act.

If there is an overt act, then venue will lie, but it also will lie where the completed offense would have occurred.

Sharon C. Samek:

–Certainly, but where the completed offense occurs, there certainly would be overt acts.

You know, it’s inherent in completing the money laundering transaction that there would be overt acts as part of the financial transaction.

John Paul Stevens:

–But why would they state it in the alternative if… why would they state it in the alternative if the overt act were always required?

That’s the–

Sharon C. Samek:

I agree that it’s… it’s somewhat confusing, Your Honor, but we would submit that the Government’s interpretation of subclause (2) is that if two people conspired in… if two people in Florida conspired to commit a money laundering offense in California, absent any overt act whatsoever, conspiracy would lay in California.

Ruth Bader Ginsburg:

But that doesn’t respond to the venue question.

Venue, as written in this statute and in most statutes, is permissive.

It gives you a choice of forum.

It doesn’t limit.

In… in the times when venue is exclusive, Congress is explicit in telling you that, but ordinarily a venue provision, as this one, either/or, is permissive.

It would be extraordinary to make a venue provision exclusive.

Sharon C. Samek:

Well, this Court has made venue provisions exclusive in the patent infringement context and in the Banking Act precisely using the–

Ruth Bader Ginsburg:

Well, this Court has no authority to make a venue provision either exclusive or permissive.

Congress decides that.

Sharon C. Samek:

–And our position is that Congress made this venue provision the exclusive venue provision–

Antonin Scalia:

I… I mean, one can understand that if the venue provision just read, a prosecution may be brought in any… in… let’s see… may be brought in the district where venue would lie for the completed… if it just read, venue will lie in any district where an act in furtherance of the attempt or conspiracy took place, then we could argue about whether that is the exclusive venue or not.

But I don’t see how there is even an argument that it’s the exclusive venue when you’re dealing with a provision which says that a prosecution may be brought in the district where the… where venue would lie for the completed offense or in any other district where an act in furtherance took place.

How can you possibly read that to say that the exclusive venue is a place where an act in furtherance took place?

Sharon C. Samek:

–Our position is that those are the two alternatives for where venue would lie for a conspiracy case.

Antonin Scalia:

Oh, okay, but… but then… then you acknowledge that the place where an overt act took place is not the exclusive venue.

Sharon C. Samek:

Our argument is that the first clause of that provision contemplates the existence of an overt act.

Ruth Bader Ginsburg:

What about the rule provision for venue, which has not been excluded by the statute?

The ordinary provision for venue.

Sharon C. Samek:

The ordinary provision for venue would be that venue lies in the district where the crime occurs.

Ruth Bader Ginsburg:

Yes.

Sharon C. Samek:

That would be… in the money laundering context, under our interpretation of 1956(h), that would be where the overt act occurs.

So it would be consistent with it.

Our–

Ruth Bader Ginsburg:

I thought the crime is the conspiracy.

The overt act may be an additional requirement.

Sharon C. Samek:

–The overt act is part of… it’s our position that the overt act is required, and there needs to be an agreement–

Ruth Bader Ginsburg:

But you will… you will concede that there are many Federal crimes, conspiracy crimes, in which an overt act is not required.

The Shabani case requires you to recognize that.

Sharon C. Samek:

–Correct.

And in those cases where all that’s required is an agreement, then venue would lie where the agreement occurs, but in this case, because the… the offense requires an agreement plus an overt act, it’s our position that that’s where venue would lie.

As a practical matter, if there is… if… if this Court construes 1956(h) as requiring overt act, as a practical matter, anytime two people agree to commit a money laundering conspiracy in one district and commit overt acts in another district in furtherance of that, it would be highly unlikely that there would not be some overt act in the district where they agreed to commit the offense.

Ruth Bader Ginsburg:

So you’re saying that it doesn’t mean very much because an overt act wouldn’t be hard to prove.

Sharon C. Samek:

As a–

Ruth Bader Ginsburg:

But there are… I mean, the difference between statutes that say overt act is required and those that just say conspiracy… there are many, many such statutes, and we dealt with one in Shabani.

But of all the statutes that include no express overt act requirement, have any of them be read to implicitly include one, which is the argument you’re making that we should adopt here?

Sharon C. Samek:

–That’s correct.

And no.

There… we have not found any cases where the Court has heretofore read an overt act requirement into a conspiracy provision.

But this statute is unique.

The money laundering statute is unique.

If you look at the statute and we lay it out… the statute in total… in our reply brief, starting at 1a… the structure of 1956 strongly supports our position that all Congress was doing, when they enacted 1956(h), was increasing the penalty for money laundering conspiracies.

As this Court is well aware, when Congress typically writes a complex statute, the statute begins by setting forth all of the offense elements.

Here, that would be set forth in (a)(1), (a)(2), and (a)(3).

The statute then goes on in subsection (b) to set forth the civil penalty provisions.

Subsection (c) then defines the various terms used in the act.

Subsection (d) then talks about relationships with other laws.

Subsection (e) identifies those Federal agencies that can investigate money laundering offenses.

Subsection (f) talks about circumstances under which there would be extraterritorial jurisdiction.

Subsection (g) then talks about recording… reporting requirements, and then you get to subsection (h), which we say, when you read the statute as a whole, clearly intends simply that the penalty for money laundering conspiracies would be increased to the same penalties as those prescribed for the offense provision.

Antonin Scalia:

Except that there are other statutes that… that read this way, which we have held to… to create the conspiracy offense, as well as impose the penalty for it.

Sharon C. Samek:

Your Honor–

Antonin Scalia:

I mean, it… it could do that.

Any person who conspires to commit any offense defined in this section shall be subject to the same penalties as those prescribed for the offense.

Antonin Scalia:

And that could be deemed to create the conspiracy offense and prescribe the penalty for it.

Sharon C. Samek:

–It could be construed as a freestanding offense provision–

Antonin Scalia:

And there are other such provisions, aren’t there?

Sharon C. Samek:

–There are not any of the offense… conspiracy provisions that this Court has interpreted that had the same structural ambiguity as 1956(h).

Sandra Day O’Connor:

Well, Shabani comes pretty close, doesn’t it?

Sharon C. Samek:

Shabani is a separate, distinct statute.

846 was a separate, distinct, discrete offense statute.

Sandra Day O’Connor:

–like this it seems to me contains no express requirement of an overt act, and we’ve said, indeed, none is required and that at common law it wasn’t required.

Sharon C. Samek:

That’s true.

Sandra Day O’Connor:

So why would we read it in here?

Sharon C. Samek:

Because text… as this Court has said on multiple occasions, in order to understand what the words mean in a statute, you have to look at context.

So you have to look at where the provision is placed and what Congress meant by that provision and look at the statute as a whole.

If anyone… if we look–

John Paul Stevens:

–Of course, if you look at this statute as a whole, you don’t find the overt act requirement in it anywhere, do you?

Sharon C. Samek:

–You don’t find the overt act explicitly in the statute.

John Paul Stevens:

And the fact that you described it as a long, detailed statute it seems to me cuts against you.

Sharon C. Samek:

No, because our position is that placing it in subsection (h) evidences that Congress’ intent and sole focus when they enacted this was the purpose of increasing the penalty for money laundering.

The–

Antonin Scalia:

Let’s get–

John Paul Stevens:

And they were making it unnecessary to rely on the general conspiracy statute in 18-371 or whatever it was.

Sharon C. Samek:

–It’s our position that they’re incorporating the overt act requirement, the act in furtherance requirement, from 371 as evidenced by the legislative history.

Antonin Scalia:

–If that’s so… if that’s so, then why does the venue provision which you were just alluding to earlier read, except as provided in paragraph (2), a prosecution for an offense under this section.

An offense under this section or section 1957 may be brought in… and then it says… (2) a prosecution for an attempt or a conspiracy offense under this section.

Not under section 371, but a prosecution for an attempt or a conspiracy offense under this section.

Sharon C. Samek:

And it would be an offense under this section because certainly the jury would need to find that the object of the conspiracy was money laundering.

So it would be an offense in that respect.

Antonin Scalia:

I… I think that language really cuts very hard against you.

A conspiracy offense under this section.

It… it is reading as though that’s the section that defines the offense, not just the section that provides the penalty.

Sharon C. Samek:

I can see how you would read it that way, Your Honor, but the offense–

Antonin Scalia:

Only because I’m a reasonable man.

[Laughter]

Sharon C. Samek:

–The offense provisions set forth in 1956 are clearly set out and enumerated in subsection (a)(1), (a)(2), and (a)(3).

In 1988… when the statute was originally enacted, (a)(1) and (a)(2) set forth the offense provisions.

When the statute was amended in 1988 and Congress intended to create another offense provision, they set forth (a)(1)… the third sting provision which is (a)(1)(iii).

If Congress intended to create an offense provision when they enacted 1956(h), they would have set it forth as (a)(1)(iv), or alternatively, they would have added or conspires to each of the predecessor offenses.

Notably, the offense provision at issue here does not include attempts, which 846 did, and which the overwhelming majority of conspiracy subsections include… attempts are included with offenses.

The fact that Congress did not include attempts in this provision again reflects the fact that they were solely focused on 371, a conspiracy offense, and all they were trying to do was increase the penalty.

The placement of the–

Ruth Bader Ginsburg:

Then you would expect at least a cross reference to 371 for defining the conspiracy, but there’s nothing here.

Sharon C. Samek:

–That’s true, and it clearly would… it certainly would be clearer had they done so.

But if you take the language originally, this provision was proposed by Representative Annunzio to be an amendment to 371, and we lay out in our… in the blue brief at page 12 what that amendment would have looked like, virtually identical language to 1956(h).

Certainly if you read it in subsection 371… if you take the identical language and put it in section 371, there wouldn’t be much of an argument, we would submit, that Congress surely intended to include the overt act, act in furtherance language and they were just talking about increasing the penalty for money laundering.

That makes our point that you look at the language, and depending on where it’s placed in a statute, it can have different meanings.

Ruth Bader Ginsburg:

You have given a few examples of a word may mean different things in different contexts, but you haven’t given any example… and I don’t know if there is one… where the entire string of words is identical in two statutes, both dealing with conspiracies, and you read an overt act requirement into one and not the other.

I mean, you have a much harder argument to make when you’re talking about an entire provision where the wording is almost identical than when you’re talking about one word used in different contexts.

Sharon C. Samek:

That’s true, Your Honor, but as this Court said in Shabani, absent contrary indications, the Court will presume that Congress intends to incorporate the common law concept of the terms that it uses.

In Shabani, the defendant did not argue any contrary indications.

They argued that at common law conspiracy required the commission of an overt act.

That is not our position.

But our position is that here there are contrary indications, and because the statute is ambiguous based on the placement and structure of 1956(h), you have to look to see if there are other indications.

And clearly in the legislative history–

John Paul Stevens:

Yes, but there’s nothing in the text of the statute that’s ambiguous, is there?

Sharon C. Samek:

–No, but that is not dispositive because the placement the Congress has said… I mean, this Court has said on multiple occasions that you need to read a statute as a whole, and when you look at the–

John Paul Stevens:

But if you read it as a whole, you can’t find any ambiguity.

Sharon C. Samek:

–I think you can find ambiguity, Your Honor.

John Paul Stevens:

In the text of the statute?

Sharon C. Samek:

In the–

John Paul Stevens:

Reading the whole text.

Sharon C. Samek:

–Reading the whole text of the statute, it looks to me it reads that the offenses are set off… set forth at the beginning, followed by the civil penalties, then procedural aspects, including this penalty provision for increasing conspiracies.

John Paul Stevens:

None of which mentions an overt act.

Sharon C. Samek:

No, it doesn’t mention an overt act, but–

John Paul Stevens:

So I don’t find anything ambiguous in what you describe.

Sharon C. Samek:

–Well, we believe that 1956(h) clearly reflects Congress’ intent to solely increase the penalty.

John Paul Stevens:

Perhaps that’s all they thought of, but maybe they did a little more than they thought they were doing.

Sharon C. Samek:

Well, if Congress inadvertently omitted the overt act requirement, this Court has on prior occasions read into congressional silence terms, definitions that Congress may have inadvertently left out.

So in United States v. Taylor, for example, the question was whether or not Congress intended to revert back to the common law definition of burglary in the Career Criminals Amendment Act, and in 1984, the Career Criminals Amendment Act had language that talked about a generic burglary, breaking and entering into a dwelling.

In 1986, when they amended the act, they removed that language.

The question before the Court then came up what does… you know, what does burglary mean.

Congress had omitted those words, but the Court found that that wasn’t Congress’ intent.

They clearly didn’t intend to revert back to the common law, and it was probably an error of drafting and this Court found that generic burglary was the standard.

So this Court has done that before.

In the… in the Perrin case, United States v. Perrin, the same thing.

There… words were missing from the statute and the Court did not find that in Perrin… it was a bribery case, and what was at issue was whether or not the… the statute covered bribery of private persons or only the common law definition where it would only incorporate bribery of public… public persons, public officials.

And the Court said even though there are other statutes that have private person language in it, similar to this case, even though there are other statutes that have overt act requirements in it, we are not going to assume that Congress intended to revert back to the common law and interpret bribery as only applying to public officials.

So this Court can look at the legislative history.

The purpose is clear.

The Government admits that the purpose of the act was to increase the penalty.

Prior to 1956(h), money laundering conspiracies were prosecuted pursuant to 371, which required the commission of an overt act.

Congress clearly intended to increase the penalty from 5 years to a potential 10 or 20 years, based on what the object of the conspiracy was.

The legislative history all reflects that fact, and the Government admits that.

The… as contrasted with 846, which… in which the public law described 846 in a section labeled offenses and provision in the money laundering context, the public law described 1956(h) as a penalty to increase the… as a money laundering conspiracy for increasing the penalty.

Antonin Scalia:

Can I… can I ask what you make of subsection (d) of… of this provision which says that violations of this section may be investigated by such components of the Department of Justice as the Attorney General may direct and by such components of the Department of the Treasury as the Secretary of the Treasury may direct, as appropriate, and with respect to offenses over which the Postal Service has jurisdiction, by the Postal Service?

Apparently there was some turf war going on as to who had jurisdiction over these offenses and… and this was meant to… to solve the turf war, but it reads violations of this section.

Now, does that allocation of authority among Justice and Treasury and the Postal Service not apply to the conspiracy offenses under section 371?

Because that’s not a violation of this section.

Sharon C. Samek:

I’m not sure I understand your point.

I would think that if it’s a conspiracy to commit… if the specified unlawful activity is one of the postal offenses or one of the customs offenses, both of which carry–

Antonin Scalia:

The offense is never completed.

there’s nothing… nothing occurs except a conspiracy, and you’re telling us a conspiracy is not a violation of this section.

Antonin Scalia:

This section sets forth the penalty… that’s your argument… but it does not establish the offense.

The offense is established by 371.

If that’s the case, this allocation of responsibility among the various divisions of the Government doesn’t apply to conspiracy prosecutions, which would make no sense at all.

Sharon C. Samek:

–It’s our position that when Congress enacted this, they were trying to enact a penalty-enhancing statute.

1956(h) then incorporates or impliedly recognizes the overt act requirement from 371.

Congress was not intending to change the way money laundering conspiracies were prosecuted.

They would have done so under 371, requiring the act in furtherance, and a jury or a judge would find that money laundering was the object of the conspiracy.

That’s how Congress envisioned this act as… as being applied, and so I would assume Congress would envision that if it was a conspiracy to violate one of the postal offenses, that the postal authority would have had authority to investigate that offense.

Interesting–

David H. Souter:

What do you… excuse me.

What… what do you make of… of this argument?

Let’s start with the premise that Congress wasn’t thinking about overt acts at all.

Start with the premise that you argue from that what Congress was concerned with here was primarily penalty.

However, Congress did this in a context in which there are two recognized kinds of statutes, two recognized kinds of… of conspiracy formulations.

And if one has the magic words in it referring to an overt act, you got to prove an overt act.

In the other variety, there’s no reference to overt acts, and as a general rule, you don’t have to prove overt acts.

Why isn’t it a sensible interpretive rule to say, look, when there are recognized models and Congress, in fact, chooses one rather than another, we’re not going to get into the question of did Congress really mean to make a change when it picked one model rather than the other?

It simply picked one model, and the… the clearest way to have a coherent system of conspiracy law is to apply the model.

If it didn’t talk about overt act, there’s no overt act requirement.

Why isn’t that a sensible way to… to work our way through these thickets?

Sharon C. Samek:

–I… I think that would be a sensible way to work your way through thickets of statutes that were enacted after Shabani when this Court created that formulary.

David H. Souter:

But Shabani rested on… on the existence of these prior models.

Shabani didn’t create them.

Sharon C. Samek:

That’s correct, but there is nothing in the legislative history to suggest that Nash and Singer, the cases that Shabani relied on, were ever discussed or contemplated by Congress.

If Congress was going to make such a fundamental change in how they were going to prosecute money laundering conspiracies, they would have said so.

We’re not talking about a backdrop of not requiring an overt act and should Congress read an overt act into Congress’ silence.

Ruth Bader Ginsburg:

There are about… there are over 50, I think, in title 18 alone conspiracy provisions with no overt act requirement, no explicit overt act requirement.

The… the argument you’re making, I suppose, would require this Court to go by… one by one through those 50-odd statutes, and there would be contests of every one because the absence of those words is not dispositive, as you see it.

So you would be generating a controversy about 50-odd statutes that would be gone, that just wouldn’t be there if you agreed with Justice Souter’s approach.

Sharon C. Samek:

Well, we don’t… we don’t believe that’s the case because if you look at all of those subsections in title 18, none of them have the structural ambiguity that 1956(h) has, combined with a venue provision–

Ruth Bader Ginsburg:

Have you looked at all 59, I think–

Sharon C. Samek:

–The–

Ruth Bader Ginsburg:

–and assured yourself on that?

Sharon C. Samek:

–I’ve… I’ve looked through the entire statute, and I have not found… title 18.

I have not found any that have both an anomaly, a structural anomaly, and a venue provision that turns on the existence of an overt act.

Ruth Bader Ginsburg:

Well, we’ve already dealt with venue where I think your argument is exceedingly weak since the statute phrases it as a permissive not a requirement.

Sharon C. Samek:

Well, first of all, we would submit, just briefly on… on the venue point, if Congress wanted this to be a permissive venue provision, they could have said venue would lie where and in the circumstances or as otherwise required by statute, in which case they could have shown that they were applying to other statutory bases for venue, as well as what Congress was establishing here.

They didn’t do that.

The venue provision was enacted in response to this Court’s decision in Cabrales, which dealt with the money laundering… the substantive offense of money laundering, and this Court’s suggestion that money laundering could be considered a continuing violation for purposes of 18 U.S.C. 3237, the continuing offense venue provision.

If all Congress was doing was codifying that principle and trying to address the issue in Cabrales, they would have just dealt with substantive money laundering in the venue provision.

They would not have also included a provision in the venue section dealing with conspiracy.

The fact that they did and the fact that they used language that this Court has previously found to–

Ruth Bader Ginsburg:

It gave… it gave the prosecutor more choices of where to bring suit.

Sharon C. Samek:

–We say those are the only choices on where to bring suit.

But–

John Paul Stevens:

Do you want to reserve any time?

Sharon C. Samek:

–Oh, yes.

I’m sorry.

John Paul Stevens:

Mr. Marcus.

Jonathan L. Marcus:

Justice Stevens, and may it please the Court:

The money laundering conspiracy statute does not require proof of an overt act for three reasons.

First, the text of the statute contains no such requirement.

Second, the statute is modeled on the drug conspiracy statute which this Court unanimously held in the Shabani case does not require proof of an overt act.

Third, the statute was enacted against the background rule of statutory construction that… that a conspiracy provision, whose text conditions liability on the act of conspiring only, will be construed to follow the common law, where proof of an overt act was not required for conviction.

This Court should adhere to its bright line rule in this case because it provides clear guidance to Congress and to the lower courts.

Petitioners seek to avoid application of the bright line rule on a variety of grounds, none of which has… none of which has merit.

I will address a few of those grounds here.

First, the money laundering conspiracy statute, section 1956(h), is not a penalty provision for the general conspiracy statute, section 371.

Section 1956(h) does not contain any reference to section 371, and petitioners are unable to cite any provision in the United States Code that provides a penalty for an offense defined elsewhere, without also referencing where that offense is defined.

Under petitioners’ theory, if section 371 were appealed tomorrow, section 1956(h) would also no longer be valid.

Jonathan L. Marcus:

But there is–

David H. Souter:

If… if 371 were repealed, would it affect the actual practice in the Justice Department?

I… I think I recall reading in the briefs for the other side that… that the… the United States has continued to charge conspiracies in money laundering cases under 371.

Is that correct?

Jonathan L. Marcus:

–Well, my understanding is on… on occasion that is done in a multi-object conspiracy case.

Where there are several objects to the conspiracy sometimes for purpose of simplification, the Government will just… will charge a 371–

David H. Souter:

But not in exclusively laundering cases.

Jonathan L. Marcus:

–Generally, no.

There might be… there might be an occasional example where it may have been an oversight where a prosecutor may have overlooked section 1956(h), maybe soon after 1956(h) was enacted, but generally speaking no.

The money laundering conspiracy prosecutions are done under 1956(h).

Antonin Scalia:

When… when you say when there are multiple objects, you’re not getting the money… money laundering just under 371.

You’d surely charge both under 371 and under… under… what is it?

1956.

Jonathan L. Marcus:

That’s correct, Justice Scalia.

You could.

You could prosecute… you could prosecute them as… as separate offenses, but sometimes the Government for… just for purpose of simplification will just charge one… one agreement with multiple objects, and one of those objects might be a money laundering object.

Anthony M. Kennedy:

If it were just money laundering, could you charge under 371?

Jonathan L. Marcus:

Yes, you could charge under 371.

There’s nothing that prevents the Government from doing so.

This Court has… has held before, for example, in the Batchelder case that there can be multiple provisions that essentially cover the same conduct, and the Government has discretion to choose which one to use.

Generally speaking, the money laundering conspiracy statute contains higher penalties.

So the practice today is… is to prosecute those offenses under section 1956(h).

Another… another reading there… another reason they’re reading that it’s a penalty provision should be rejected is that Congress modeled section 1956(h) on the drug conspiracy statute that’s virtually identically worded to section 1956(h), and no one disputes that the drug conspiracy statute establishes a freestanding criminal offense.

Antonin Scalia:

This is 846.

Jonathan L. Marcus:

846, yes, in title 21.

Petitioners also argue that because prior to enactment of section 1956(h), the Government had to prosecute money laundering conspiracies for 6 years under section 371, that this Court should presume that Congress intended to perpetuate the overt act requirement of section 371 into the money laundering conspiracy offense.

But this Court looks, first, to the text of the statute to discern Congress’ intent, and had Congress wanted to perpetuate section 371’s overt act requirement, it could have easily modeled the text of section 1956(h) on the language from 371 or on the language from any of the other numerous conspiracy provisions in the code that contained express overt act requirements.

Congress chose a different model, the drug conspiracy statute, which as I said before, this Court held in Shabani does not contain an overt act requirement.

By choosing that model, Congress manifested its intent not to require proof of an overt act because at the time it… because at the time it acted, the background rule of statutory construction provided that a conspiracy statute that conditions liability solely on the act of conspiring would be construed to follow the common law.

Petitioners point to silence in the legislative history, but the silence in the legislative history on the overt act requirement is not the kind of compelling evidence of… of contrary intent that would justify departing from the text of the statute and this Court’s bright line rule.

Jonathan L. Marcus:

Finally, petitioners rely on a venue provision for money laundering cases, section 1956(i), which was enacted 9 years after the money laundering conspiracy statute at issue here.

That venue provision reflects Congress’ intent to identify a variety of districts in which money laundering cases can be brought.

It does not reflect an intent to redefine the… the elements of the substantive money laundering conspiracy offense.

David H. Souter:

What do you make of the… the argument that I think occurs in the yellow brief, that… the reference to any other district where an act in furtherance, et cetera, took place implies that in the clause preceding, they were referring to a district in which an act in furtherance took place?

Jonathan L. Marcus:

Justice Souter, I think what… what that terminology was… was referring to was district.

The other is meant to modify district.

In other words, the first… the first clause there provides a venue where the case can be brought.

And if it’s not brought in that… if it doesn’t fall within that venue, then you can bring it in… in a different district, an other district.

I think that’s the… the best way to read the… the statute.

I mean, otherwise, it could have… as it was pointed out during petitioners’ argument, otherwise they could have just had one.

They wouldn’t need separate clauses.

They could have just had one clause that said, and the case… the conspiracy case can be brought in any district where an overt act was committed.

Petitioners seize on the fact that the venue provision permits venue to be laid in any district in which an overt act was committed.

But the rule in conspiracy cases has always been that an overt… that venue can be laid where an overt act was committed regardless of whether an overt act was an element of the offense.

At common law, as I said before, conspiracies… a conspiracy conviction did not rely… depend on proof of an overt act, and yet venue could always be laid at common law where an overt act was committed.

The common law venue rule has been applied consistently to modern Federal conspiracy statutes, such as the drug conspiracy statute, which likewise does not require proof of an overt act as an element of the offense.

Congress’ codification in the money laundering statute of… of this… of this venue principle cannot be read to presuppose an overt act element when the very venue rule it was codifying did not presuppose one.

If this Court… if this Court has no further questions–

John Paul Stevens:

I had just one other question, just out of curiosity, about how important this case is.

How many prosecutions under this statute does the Government bring without proving an overt act?

Jonathan L. Marcus:

–I’m… I’m not aware of… I’m not aware of a number, Justice Stevens.

John Paul Stevens:

Are there any?

Jonathan L. Marcus:

I… I don’t know.

I mean, it’s–

John Paul Stevens:

It seems to me quite unlikely.

Jonathan L. Marcus:

–Well–

John Paul Stevens:

I’m just wondering.

It seems to me sort of a tempest in a teapot, this whole case to me.

Jonathan L. Marcus:

–Yes.

I think it’s true in the vast majority of cases, the Government does have proof of an overt act.

Jonathan L. Marcus:

And, of course, overt acts help establish the… establish the agreement and… and to convince the jury beyond a reasonable doubt there was an agreement.

If the Court has no further questions–

Ruth Bader Ginsburg:

I… I do have one and it’s not on the money laundering conspiracy issue, but in this particular case, would it be consistent with the position that the Solicitor General has been taking for us to hold the final disposition of this case pending Booker and Fanfan?

Wasn’t there a sentencing question?

Jonathan L. Marcus:

–Well, it’s our position that it wasn’t… they didn’t raise that issue in… in the court of appeals.

They didn’t raise the Sixth Amendment issue in the court of appeals.

They didn’t raise that issue in their cert petition here, and so it’s… it’s not covered by the… by the question presented.

So it is the position that we’ve… that we’ve set out in the brief that it should not be… it should not be held pending that… that disposition in Booker and Fanfan.

Ruth Bader Ginsburg:

And that’s consistent with the position that the Government has been taking routinely in cases where Booker… where the sentencing guidelines are an issue?

Jonathan L. Marcus:

Well, I think in the… I think that that position is based on petitions that have raised the question, I believe.

If… if the Court has no further questions, it should reaffirm the conspiracy statutes that do not contain an overt act requirement should not be read to include one.

Thank you.

John Paul Stevens:

Thank you, Mr. Marcus.

Ms. Samek, you have about 3 and a half minutes left.

Sharon C. Samek:

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

Justice Ginsburg, you had inquired about the number of subsection… conspiracy subsections, and I didn’t get a chance to answer your question.

Even if you don’t find the statute is unique because of the venue provision, as my review of the conspiracy subsections in title 18, there were only about two others out of the 50-some-odd cases that have the same structural anomaly that 1956(h) does.

So this would not be opening up a can of worms to say that in this case an overt act clearly was intended by Congress and that we need to look at congressional intent.

So it wouldn’t be… require… a holding in this case consistent with congressional purpose would not require the Court to then have to review every single title 18 conspiracy subsection.

As the Government pointed out, money laundering cases are not typically prosecuted without the commission of an overt act because overt acts are relatively simple to prove.

There’s no reason why Congress would have intentionally eliminated the overt act requirement from money laundering conspiracies when, on the one hand, it’s easy to prove, but on the other hand, it placed such a critical value in money laundering conspiracies because it’s not just that it shows that criminal intent has crystallized and that money laundering is actually afoot, but you’re talking about taking offenses, like we say in our brief, where someone pledges a… a cow for collateral for a loan and then they talk with a friend about whether or not they should sell the cow, and they decide not to sell the cow.

Under the Government’s theory, they couldn’t be prosecuted for defrauding the Government because, in fact, they never sold the cow.

They couldn’t be prosecuted for conspiracy to defraud the Government because they didn’t commit an overt act in furtherance of defrauding the Government.

They couldn’t be convicted or prosecuted for money laundering because they never sold the cow, so there were never any proceeds to generate.

But they could be convicted, under the Government’s theory, of conspiracy to commit money laundering based on the sale of a cow and their sentence would increase from a potential 5 years to a potential 20 years.

There’s absolutely no indication in the Congressional Record that Congress ever intended such dramatic triggering of substantially higher penalties without the commission of an overt act, which is not difficult to prove.

Ruth Bader Ginsburg:

The Government has said that… that you have essentially waived their sentencing guidelines issue that you asked us in footnote 6 of your brief to consider.

Sharon C. Samek:

In the district court, there were issues raised as to all defendants as far as various sentencing enhancements.

In front of the Eleventh Circuit, one of those enhancements was argued and it was rejected.

As to Mr. Hall, one of the sentencing enhancements were argued and was reversed on that sentencing enhancement.

Sharon C. Samek:

But there is still a sentencing enhancement that was raised in the Eleventh Circuit, but it was not raised in this petition.

It was not the issue that this Court granted cert on, but we would argue that it’s still a valid… a valid claim and that this Court should hold this decision in abeyance until its decision in Booker and Fanfan.

Antonin Scalia:

Was the argument below that… # that imposing the sentencing enhancement was unconstitutional, or was the argument just that the facts didn’t support it?

Sharon C. Samek:

The argument was that the facts didn’t support it.

Finally, Your Honor, we would… Your Honors, we would just again say that Congress did not intend to cause a dramatic change in the way money laundering conspiracies were prosecuted.

This Court has said in other cases that when Congress intends dramatic changes, that you would expect to find something in the legislative history.

The Court has said that in the Lewis case having to do with interstate gambling and… I see my time is up.

Thank you.

John Paul Stevens:

Thank you very much.

The case is submitted.