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June 2, 2008

Two defense wins on federal money laudering issues

Though not focused on sentencing issues, a notable set of rulings and voting patterns today emerged from the Supreme Court in two money laundering cases.  Here is are the basics and links thanks to early posts at SCOTUSblog:

[The Supreme Court] ruled that mere concealment of money during a transport is not enough to support a conviction for money-laundering. And, in another money-laundering case, the Court ruled that the crime of using the proceeds of illegal activity applies only to the profits involved, not the total amount of money.

Today’s opinion by Justice Thomas in Cuellar v. United States (06-1456) is now available here.  Justice Alito filed a concurring opinion in which Chief Justice Roberts and Justice Kennedy joined. 

Today’s opinion in United States v. Santos (06-1005) is now available here.  Justice Scalia announced the judgment of the Court and delivered an opinion in which Justices Souter and Ginsburg joined, and in which Justice Thomas mostly joined. Justice Stevens concurred in the judgment. Justice Alito filed a dissenting opinion in which Chief Justice Roberts and Justices Kennedy and Breyer joined. Justice Breyer also filed a dissenting opinion.

That Justices Scalia and Thomas were key votes for the defendant in Santos proves yet again that their commitment to legal and structural principles trump any anti-defendant instincts that some pundits assume they have.  As I have suggested before, anyone inclinded to make quick or broad assertions about jurisprudential and political trends in the Roberts Court needs to take a close look at all the unpredictable stuff going on throughout the Court's criminal docket.

UPDATE:  Marty Lederman has this interesting post, titled "The Santos Resolution (?)," discussing why the Santos decision took so long and whose votes may have been in play.

June 2, 2008 at 10:24 AM | Permalink


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Scalia's plurality opinion in Santos really allows him to give his lenity love a workout in high-profile setting. Just one more vote and he has a lenity majority.

Posted by: A. Nony. Mous | Jun 2, 2008 2:44:13 PM

A fine point Prof Berman. The Santos majority: Scalia, Thomas, Souter, Ginsburg, Stevens. Who is that familiar quintet?

Why, its the Apprendi majority! When this block of liberals and principled textualists hang together, defendants have a good day (habeas and death penalty cases excluded).

Posted by: RW | Jun 2, 2008 3:02:46 PM

I'd be interested to hear speculation about why Scalia's statutory views in the habeas context are so different.

Posted by: 6:28 | Jun 2, 2008 8:41:03 PM

If one were defending him, you could make a helluva case that the difference is accounted for by the sweeping and god-awful language in AEDPA

Posted by: RW | Jun 3, 2008 1:37:23 AM

This is a pretty fascinating opinion, in which a number of Justices play to type. Justice Scalia refuses to look at the legislative history. Justice Stevens feels sorry for the poor lottery bosses who are doomed to spend lots of time in jail just because the government was able to toss in a money laundering conviction. Justice Breyer thinks the Sentencing Commission can cure all ills. And Justice Alito's worried about how the Justice Department is supposed to prosecute unprofitable drug dealers.

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