United States v. Robert Reggie Oleson

DAVID A. NELSON, Circuit Judge,

concurring in the judgment.

Although I concur, I write separately to explain that I do so reluctantly insofar as the money laundering issue covered in Part II of the court’s opinion is concerned.

Count 22 of the indictment — the money laundering count — charged Oleson with having violated 18 U.S.C. § 1956(a)(3)(A), among other statutory provisions. (Count 22 did not cite § 1956(a)(1)(A).) Section 1956(a)(3)(A) provides in pertinent part as follows:

‘Whoever with the intent—
(A) to promote the carrying on of specified unlawful activity ******
conducts or attempts to conduct a financial transaction involving property represented to be the proceeds of specified unlawful activity ... shall be fined under this title or imprisoned for not more than 20 years....”

The term “transaction,” as used in § 1956, includes, among other things, a “delivery.” 18 U.S.C. § 1956(c)(3). The term “financial transaction” includes “a transaction ... involving one or more monetary instru-*387mente....” 18 U.S.C. § 1956(c)(4). (Both of these subsections were likewise cited in count 22 of the indictment.) The term “monetary instruments” includes “coin or currency of the United States or of any other country....” 18 U.S.C. § 1956(c)(5).

The evidence in the ease at bar was sufficient to support findings that defendant Ole-son delivered to Nancy Tadman monetary instruments in the form of United States currency; that these monetary instruments constituted proceeds of unlawful drug dealing; and that Oleson made the delivery to Nancy Tadman with the intent that the instruments be transported to Texas for investment in marijuana, thereby promoting Oleson’s unlawful drug business. Without objection from the defendant, the trial court instructed the jury that “[t]he term ‘transaction’ includes a transfer or delivery;” that “[t]he term ‘financial transaction’ means a transaction ... involving one or more monetary instruments;” and that “[t]he term ‘monetary instruments’ means coin or currency of the United States or of any other coun-try_” On these instructions — which meticulously tracked the language of the pertinent statutory provisions — the jury returned a verdict of guilty. If we were writing on a clean slate, I should have no hesitancy in voting to affirm the conviction.

But we are not writing on a clean slate, of course. In United States v. Samour, 9 F.3d 531 (6th Cir.1993), where the facts were strikingly similar to those presented here,1 we overturned a money laundering conviction on the ground that the mere transportation of cash does not constitute a “financial transaction.” My colleagues on the panel view Samour as dispositive. Subject to the reservations described below, I agree.

My reservations stem from the way in which Samour dealt with the circumstance that alternative definitions of “financial transaction” are provided in § 1956(c)(4)(A). Under § 1956(c)(4)(A)(i), the term can mean a transaction “involving the movement of funds by wire or other means.” Alternatively, under § 1956(c)(4)(A)(ii), the term can mean a transaction “involving one or more monetary instruments.” Focusing on the first of these alternatives, the Samour panel described the issue to be decided as “whether transporting money concealed either in an automobile or on one’s person is a ‘financial transaction.’ ” Samour, 9 F.3d at 535. The panel concluded, as noted above, that merely transporting cash is not such a “transaction.” Id. at 535. Nowhere, however, did the Sam-our panel purport to hold that delivery of United States currency is not a “transaction.”

The Samour panel did acknowledge that under § 1956(c)(4)(A)(ii) a financial transaction includes a transaction involving one or more monetary instruments, while § 1956(e)(3) defines “transaction” to include “transfer, delivery, or other disposition.” The panel stated, however, that “[tjhese statutory definitions do not address the specific situation before us.” Id. at 535.

I am frank to say that I do not understand why these statutory definitions were not considered pertinent in Samour, the trial court in that case having explicitly instructed the jury that “[t]he term ‘transaction’ includes a purchase, sale, loan, gift, transfer, delivery, or other disposition.” (Trial transcript of April 7, 1992, at p. 307; emphasis supplied.) The Samour panel said what it said, however, and what it seemed to be saying was that the alternative definition of a “financial transaction” as a transaction (“delivery,” e.g.) “involving one or more monetary instruments” simply was not implicated.

The Samour panel may have assumed that a delivery of monetary instruments cannot constitute a transaction, but “[a] point of law merely assumed in an opinion, not discussed, is not authoritative.” Matter of Stegall, 865 F.2d 140, 142 (7th Cir.1989), citing inter al., United States v. Kucik, 844 F.2d 493, 498 (7th Cir.1988); United States v. Crawley, 837 F.2d 291, 293 (7th Cir.1988). Technically, therefore, I suppose it would be open to this panel to vacate Mr. Oleson’s money laundering conviction on the principle that transportation of cash is not a “movement of funds by *388wire or other means,” while permitting a retrial limited to the question whether Ole-son violated the money laundering statute by making a “delivery” of “one or more monetary instruments.”

I do not advocate this course. Because the instructions given by the trial court in Sam-our were substantially identical to those given by the trial court here; because the underlying facts of the two cases are indistinguishable on any meaningful ground; and because of the possibility that I may not fully have understood the scope of Samour, I bow to my colleagues’ view that Samour is dis-positive. Samour may be a somewhat flawed decision, but it is a published decision that this panel, under our longstanding tradition, is not at liberty to overrule.

. The defendant in Samour was prosecuted not under § 1956(a)(3)(A), but under different subsections of § 1956. As in the case at bar, however, the applicability of the subsections turned on whether the defendant had conducted a “financial transaction.” And in Samour, as here, the district court instructed the jury that the term “transaction” includes, among other things, a “delivery.”