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The Money Laundering Hammer
The federal government has wielded the money laundering statutes, 18 U.S.C. ” 1956 and 1957, to great effect in various cases due to their breathtaking sweep, jury appeal, and severe sentencing enhancement under the federal Sentencing Guidelines. The Supreme Court's recent ruling in United States v. Santos, 128 S.Ct. 2020 (June 2, 2008), may undermine the feds' use of this weapon, particularly in cases in which the profit to the defendant from any given transaction is unclear. Although Santos raises many legal and practical issues to be litigated over time, an immediately compelling aspect is that it creates opportunities for defendants already convicted and sentenced under ' 1956, including those who have exhausted their appeals.
The Santos Opinion
Efrain Santos collaterally attacked his money laundering conviction under the “promotion” prong of ' 1956, which prohibits financial transactions that “promote” a specified unlawful activity (SUA). To prove ' 1956 or ' 1957 charges, the government must show that the charged transaction involved the “proceeds” of an SUA, and that the defendant knew that the property involved in the transaction represents such “proceeds.” In Santos, the SUA was running an illegal lottery. The charged financial transactions included Santos' payments to employees, runners, winners, and collectors. A four-vote plurality opinion penned by Justice Scalia found that, as a matter of statutory interpretation and employing the rule of lenity, “proceeds” under ' 1956(a)(1) refers only to the net profits of criminal activity, not gross receipts. “What counts is whether the receipts from the charged unlawful act exceeded the costs fairly attributable to it.” Because there was no evidence at trial that the charged transactions could be traced to profits of the illegal lottery, the Court affirmed the decision below vacating the convictions.
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