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December 1, 2008

Interesting State and Federal Split

In Dallas v. State, __ S.E.2d __ (Fla. App. 2008), the defendant sold cocaine, and then walked away with the money.  The state charged him with selling cocaine and unlawful transportation of currency.  He argued on appeal that his motion for judgment on the second count should have been granted because there was no evidence that he had the cash with intent to promote unlawful activity.  Noting that it had found it proper to convict someone when they were carrying cash to buy cocaine, the court nonetheless reversed this conviction, but noted that there was a split even among federal courts on the issue of whether carrying the money after a crime is done "with the intent to promote the carrying on of specified unlawful activity," as the state statute required.  It reasoned:

The State argues that because no Florida case has addressed the issue of whether the statute includes transporting money to promote past crimes, this Court should look to federal cases dealing with that issue under the federal money laundering statute, from which the Florida statute was adopted. Specifically, the State cites three federal cases holding that Title 18 United States Code, Section 1956, encompasses the act of accepting and negotiating or depositing a check derived from the proceeds of
illegal activity. United States v. Valuck, 286 F.3d 221, 227 (5th Cir. 2002); United States v. Bencs, 28 F.3d 555, 562 (6th Cir. 1994); United States v. Paramo, 998 F.2d 1212, 1218 (3d Cir. 1993). For example, in Paramo, the court rejected the defendant's argument that one cannot promote an already completed illegal activity. It noted that the definition of "promote" -- to contribute to an activity's growth or prosperity -- includes not only ongoing and future activity but also prior activity. Based on this reasoning, the court upheld the defendant's money laundering convictions for cashing checks from the proceeds of past mail fraud because such actions created value out of an otherwise unremunerative enterprise. 998 F.2d at 1218.

In reply, Dallas points out two problems with the State's reliance on these federal cases. First, he correctly notes that federal law is in conflict on this issue. Not all federal circuits adhere to the position that the federal money laundering statute criminalizes transactions that promote prior criminal activity. In fact, the court in Valuck noted this split of authority, acknowledging the following cases taking a contrary position:

United States v. Jolivet, 224 F.3d 902, 909 (8th Cir. 2000) (reversing promotion conviction because subsequent activity cannot "promote the carrying on of an already completed crime"), and United States v. Heaps, 39 F.3d 479, 486 (4th Cir. 1994) (expressly rejecting broad statutory interpretation
employed by Third and Ninth Circuits as inconsistent with congressional intent). Cf. United States v. Calderon, 169 F.3d 718, 722 (11th Cir. 1999) (questioning whether the decisions of the Third, Sixth, and Ninth Circuits "were rightly decided," but not deciding the issue)

December 1, 2008 | Permalink


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