United States Court of Appeals
Fifth Circuit
UNITED STATES COURT OF APPEALS FILED
For the Fifth Circuit February 2, 2007
Charles R. Fulbruge III
Clerk
No. 05-10065
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
HUMBERTO FIDEL REGALADO CUELLAR,
Defendant-Appellant.
Appeal from the United States District Court
For the Northern District of Texas
Before JONES, Chief Judge, KING, JOLLY, HIGGINBOTHAM, DAVIS,
SMITH, WIENER, BARKSDALE, GARZA, DeMOSS, BENAVIDES, STEWART,
DENNIS, CLEMENT, PRADO and OWEN, Circuit Judges.
W. EUGENE DAVIS, Circuit Judge:
We took this case en banc to consider whether the government
presented sufficient evidence at Cuellar’s trial to support his
conviction of international money laundering under 18 U.S.C. §
1956(a)(2)(B)(i). For the reasons that follow, we conclude that
the evidence was sufficient to prove all elements of the offense.
We also consider Cuellar’s arguments that the district court
erred in admitting the expert testimony of Agent Nuckles, which
arguments were unnecessary for the panel to address under its
disposition of the case. Finding no error, we affirm.
I.
On July 14, 2004, defendant Humberto Fidel Regalado Cuellar
was stopped just south of Eldorado, Texas, about 114 miles from
the Mexican border. Cuellar was traveling south in a Volkswagon
Beetle toward Mexico on State Highway 77. Highway 77 runs toward
Del Rio, Texas, which is directly across the border from Acuna,
Mexico. He was pulled over by Deputy Kevin Herbert from the
Schleicher County Sheriff’s office, after Herbert observed the
vehicle traveling very slowly, approximately 40 miles per hour in
a 70 mile per hour zone. The car also swerved onto the shoulder,
leading Herbert to suspect that the driver might be intoxicated.
Because Cuellar spoke no English, Herbert called State Trooper
Danny Nunez to assist him. As they waited for Nunez to arrive,
Herbert attempted to determine whether Cuellar had insurance.
Cuellar handed him written material from the glove compartment.
He then exited the car, without being asked, and went to the
front of the VW where the trunk was located and lifted the lid.
Such behavior raises suspicion among law enforcement officers
because it is considered a diversionary tactic used to draw
attention away from other locations in the vehicle where
contraband is hidden.
2
In the papers Cuellar handed Herbert were bus tickets issued
in Cuellar’s name. The tickets showed northbound travel the
previous day, from Del Rio, Texas to San Antonio. They also
showed a departure the same day from San Antonio to Big Spring,
Texas. From there the tickets showed a departure to Lubbock,
with a stop in Tulia, ending in Amarillo and then reversing
course. Also among the papers were three Mexican permits to
operate a vehicle without license plates. Two were in Cuellar’s
name, dated April 17, 2004 and June 28, 2004. The third, dated
May 18, 2004, was in the name of David Rodriguez Aleman. The
papers also included a traffic ticket issued to Cuellar in Mexico
on March 5, 2004.
Nunez arrived and began to talk to Cuellar. Nunez became
suspicious of Cuellar because he was avoiding eye contact and
seemed very nervous. Cuellar claimed he was on a three-day
business trip attempting to buy vehicles, despite the fact that
he had no luggage or extra clothing. Cuellar gave conflicting
stories about his travels, saying first that he was coming from
Acuna, Mexico and later that he had been in San Angelo and was on
his way to Acuna. Nunez noticed a bulge in Cuellar’s pocket, and
when asked about it, Cuellar pulled out a wad of cash that
smelled like marijuana to the officers. Nunez then requested
that a drug search dog come to the scene.
3
While waiting for the canine unit, Nunez asked Cuellar for
permission to search the vehicle. Cuellar consented. The
officers started with the trunk that Cuellar had opened. Nunez
noticed drill marks on the fender walls and evidence of tampering
on the gas tank. Contraband is often transported in gas tanks
and in secret compartments behind fender walls. Nunez considered
the markings as evidence of possible modifications to facilitate
transportation of contraband. He also noticed that mud appeared
to be splashed purposefully on the car with an acoustic gun,
which is done by criminals to cover up tool marks, fresh paint
and other work done on a vehicle. In addition, while most of the
car’s interior was faded and worn, the carpet appeared newer.
Animal hair was found in the vehicle, concentrated in the rear
area, but nowhere else in the car. Cuellar claimed that he had
used the VW to transport goats on a prior occasion. Nunez
doubted that goats could fit in the space.
Nunez also found a Whataburger bag with a receipt dated
earlier the day of the stop. After calling the phone number on
the receipt the officers determined that the restaurant was in
Big Spring, which is northwest of San Angelo - farther north than
Cuellar told officers he had traveled. A border patrol agent
called to the scene checked Cuellar’s last border crossing date.
That information was also inconsistent with Cuellar’s story.
4
While Nunez was talking to Cuellar and searching the car, Nunez
observed Cuellar standing on the side of the road and making the
sign of the cross leading Nunez to believe that Cuellar knew he
was in trouble.
Deputy Chatham arrived with the canine unit. The dog
alerted on the money in Cuellar’s pocket and on the back
floorboard area of the car. The officers found a hidden
compartment underneath the floorboard containing $83,000 wrapped
in duct tape bundles inside blue Walmart sacks and marked with a
Sharpie as to the amounts in each bundle. A Sharpie was in the
glove box of the car along with a Phillips-head screwdriver that
matched the types of screws used in the hidden compartment.
Chatham noticed that animal hair was concentrated in the area of
the compartment. He testified that animal hair is often used to
try to distract a dog during a search but it does not work.
The officers arrested Cuellar and transported the car to the
sheriff’s office for further investigation. At the station
Cuellar wanted to call his family in Mexico and told Nunez that
if he did not have the car in Mexico by midnight “his family
would be floating down the river.”1 As Cuellar was questioned,
he gave several different versions of his travels, including the
1
When Cuellar made this statement he did not know the
officers had discovered the cash in the hidden compartment.
5
purpose of his trip, where he had been and when, and who owned
the vehicle he was driving.
At trial, the government also offered testimony from Special
Agent Richard Nuckles of U.S. Immigration and Customs, an expert
on drug trafficking organizations. Nuckles testified that drug
operations typically involve the flow of drugs from Mexico into
the United States and the flow of cash proceeds of drug sales
from the United States back into Mexico. He described the usual
methods employed by drug traffickers in transporting drugs and
money across the border. Cash is usually bundled. Duct tape and
plastic are used to cover the odor of drugs and to prevent
couriers from pilfering bills from the stash. Vehicles used to
transport drugs and cash are sometimes registered in the driver’s
name to avoid suspicion in the event of a traffic stop. Nuckles
also indicated that couriers of drug proceeds would almost
certainly know they were involved in illegal activity and were
carrying money. Nuckles’ description of the typical drug courier
was consistent with the facts concerning Cuellar. Nuckles did not
testify regarding what customarily happens to the drug money in
Mexico other than to say that it is returned to those in charge
of the drug trafficking operation. Once in Mexico, which has a
more cash-based economy than the U.S., the dollar can be used as
readily as the peso.
6
Cuellar testified at his trial that he was in the business
of buying and selling vehicles. He had purchased the Volkswagon
Beetle in March and used it in his business. He also testified
that he had carried small goats in the car. Cuellar said that he
sold the car in May to a Mr. Morcia. Morcia could not get a
permit for the car, so Cuellar obtained the permit in his own
name in June 2004. Cuellar crossed the car into the United
States and delivered it to Mr. Morcia and returned to Mexico.
Cuellar stated that he began a bus trip on July 13, 2004, to
Amarillo, Texas to buy two trucks. He was only planning to be
gone for two days so he carried no luggage. He arrived in
Amarillo on July 14th, where a friend was waiting with the
trucks. They began driving toward Acuna, using one truck to tow
the other. The two men stopped in Big Spring, but found no
additional trucks at an acceptable price. When they arrived in
San Angelo, Cuellar called Mr. Morcia to inquire about trucks for
sale. Mr. Morcia showed them a truck and suggested that Cuellar
buy the truck and tow the Volkswagon back to Mexico. The VW had
a transmission problem that Cuellar was going to repair in
Mexico, where needed parts were available. Cuellar did not want
to buy the truck Mr. Morcia had shown him but offered to buy a
truck he had seen in Big Spring if Mr. Morcia would loan him the
necessary funds. Cuellar stated that Mr. Morcia lent him $1,600
7
to buy the other truck, which was part of the money he was
carrying in his pocket.
According to Cuellar, Mr. Morcia told him to deliver the
Beetle to a certain shop in Acuna, run by Mr. Morcia’s brother-
in-law. Cuellar drove the Beetle and his friend took the two
trucks. Cuellar was unable to purchase the truck in Big Spring
because the price was too high. After looking at other cars,
Cuellar bought lunch at the Whataburger and then headed to Acuna.
On the way to Acuna, the Beetle broke down and Cuellar could only
drive it 18 miles per hour. Cuellar stopped in Eldorado to look
at another vehicle but didn’t see the price. He was then stopped
by the officers just outside of Eldorado. Cuellar said that he
opened the hood of the car after being asked to do so. He denied
knowing about the money and making the comment about his family
floating down the river.
After all the evidence was presented, Cuellar moved for a
judgment of acquittal alleging that the government had failed to
prove all the elements of the offense, which was denied. The jury
found him guilty. After trial, Cuellar filed a motion for
judgment of acquittal, alleging that the government failed to
prove the required elements of the offense. The district court
denied the motion and sentenced Cuellar. Cuellar appeals.
8
A divided panel of this court concluded that the
government’s evidence was insufficient to support Cuellar’s
conviction on the issue of whether Cuellar’s transportation of
the funds hidden in the VW was designed to conceal or disguise
the nature, location, source, ownership or control of the
proceeds and whether Cuellar knew that. We took this case en
banc to reconsider that question. We also address the
evidentiary issue raised by Cuellar relating to admissibility of
the expert testimony of Agent Nuckles which the panel did not
reach.
II.
Cuellar argues that the district court erred in denying his
motion for judgment of acquittal because the facts outlined above
are insufficient to sustain Cuellar’s conviction under 18 U.S.C.
§ 1956(a)(2). The denial of a motion for judgment of acquittal
is reviewed de novo. United States v. Delgado, 256 F.3d 264, 273
(5th Cir. 2001). The verdict will be affirmed if a reasonable
trier of fact could conclude from the evidence that the elements
of the offense were established beyond a reasonable doubt. Id.
In assessing the sufficiency of the evidence, this court does not
evaluate the weight of the evidence or the credibility of the
witnesses but views the evidence in the light most favorable to
9
the verdict, drawing all reasonable inferences to support the
verdict. Id. at 273-74.
Cuellar was convicted of international money laundering in
violation of 18 U.S.C. § 1956(a)(2). Section 1956 outlaws two
types of money laundering. Subsection (a)(1) prohibits a person
from knowingly engaging in a financial transaction involving
illicit criminal proceeds knowing that the transaction is
designed to conceal or disguise the nature, location, source,
ownership or control of the illicit proceeds.2 Subsection
(a)(2), the subsection Cuellar’s prosecution is brought under,
does not require a transaction. Instead it prohibits a person
from transporting (or attempting to transport) illicit funds,
from a place inside the United States to a place outside the
United States, knowing that such transportation is designed to
conceal or disguise the nature, location, source, ownership or
2
That subsection reads as follows:
(a)(1) Whoever, knowing that the property involved in a
financial transaction represents the proceeds of some
form of unlawful activity, conducts or attempts to
conduct such a financial transaction which in fact
involves the proceeds of specified unlawful activity –
. . .
(B) knowing that the transaction is designed in whole or in
part -
(i) to conceal or disguise the nature, the location ,
the source, the ownership, or the control of the
proceeds of specified unlawful activity . . .
shall be sentenced . . .
10
control of those proceeds.3 Because both subsections of the
statute contain identical language to describe the concealment
element of the crimes, courts rely on cases under either
subsection as controlling on the issue of concealment. United
States v. Bieganowski, 313 F.3d 264, 279 (5th Cir. 2002).
The plain language of the statute of conviction, 18 U.S.C. §
1956(a)(2)(B)(i), which outlaws international money laundering,
requires the government to prove five distinct elements. First,
it must show that the transportation or attempted transportation
of funds was across U.S. borders. Second, the funds in question
must be the proceeds of specified unlawful activity.4 Third, the
3
That subsection reads as follows:
(a)(2) Whoever transports, transmits, or transfers, or
attempts to transport, transmit, or transfer a monetary
instrument or funds from a place in the United States to
or through a place outside the United States or to a
place in the United States to or through a place outside
the United States
. . .
(B) knowing that the monetary instrument or funds
involved in the transportation represent the proceeds of
some form of unlawful activity and knowing that such
transportation, transmission, or transfer is designed in
whole or in part --
(i) to conceal or disguise the nature, the location,
the source, the ownership, or the control of the
proceeds of specified unlawful activity . . .
shall be sentenced . . .
4
In contrast, the money smuggling statute, 31 U.S.C. §
5332, outlaws the unreported transportation of large sums of money
outside the country whether they are legitimate funds or illicit
funds. In passing that legislation, Congress found that
transporting money across the border may be the most common form of
11
accused must know that the funds represent such proceeds. Fourth,
the transportation of the funds must have been designed (in whole
or in part) to conceal or disguise the nature, location, source,
ownership or control of the proceeds. Fifth, the accused must
know that such concealment was part of the transportation plan or
design.
The panel unanimously found that the government’s proof was
sufficient to establish the first three elements. On the first
element (the international element), the government offered
sufficient evidence that Cuellar was attempting to transport
money into Mexico. He told the officers he was headed for Acuna
and so testified at trial. Although he claimed he did not know
the money was in the car, the jury was free to disbelieve this
testimony, especially given the evidence of his guilty knowledge
discussed in Section III.
On the second and third elements, the evidence was
sufficient to allow a reasonable jury to infer that the money was
proceeds of drug trafficking and that Cuellar knew that. The
evidence of Cuellar’s guilty knowledge discussed in Section III
was also probative on these elements. In addition, the money
smelled of marijuana and was bundled in a way that is typical of
money laundering. 31 U.S.C. § 5332, Congressional Findings and
Purpose.
12
drug trafficking. The jury was able to infer from the expert
testimony regarding drug trafficking operations that Cuellar's
conduct was consistent with that of a typical drug money courier
who knows what he is carrying. Based on this evidence, a
reasonable trier of fact could have concluded that the money
hidden in the car was proceeds of drug trafficking and that
Cuellar knew that.
The issue narrows to the fourth and fifth elements, whether
the government produced sufficient evidence to allow the jury to
find that the defendant was knowingly transporting the funds
under a plan designed at least in part “to conceal or disguise
the nature, the location, the source, the ownership, or the
control of the proceeds.” 18 U.S.C. § 1956(a)(2)(B)(i). Cuellar
argues that if all the government’s proof shows is that the money
was hidden to allow it to be transported to Mexico, that is not
enough to sustain a conviction. He reads the statutory
prohibition against transportation that is designed in part to
conceal the nature, location, source, ownership or control of the
proceeds as requiring proof of a plan to conceal the funds once
they reach the ultimate destination outside the country.5 The
plain words of the statute do not support this interpretation.
5
The dissent makes a similar argument by asserting that the
statute does not prohibit “concealing something to transport it,”
but only prohibits “transporting something to conceal it.”
13
The transportation of the funds to the border begins when they
leave the owner’s hands and are delivered to the courier. The
transportation ends when the funds arrive at the destination.
Cuellar’s transportation plan or design includes the trip to
Mexico as well as the disposition of the funds once they reach
Mexico. So concealment of the funds during the U.S. leg of the
trip is a vital part of the transportation design or plan to get
the funds out of this country.
On several bases, we find that the government adequately
established the concealment prong of the statute, i.e. that
Cuellar’s transportation of the funds was designed, in whole or
in part, to conceal or disguise the nature, location, source,
ownership or control of the proceeds. First, the evidence
establishes that the transportation was designed to conceal the
nature of the proceeds. The concealed cash, like the cash found
on Cuellar’s person, had a strong enough odor of marijuana that
the drug sniffing dog alerted on both. The smell identified it
as proceeds associated with illicit drug activity. Several
measures were taken in an effort to contain the odor of the drug
tainted funds and conceal the nature of the hidden funds as drug
proceeds during the transportation. The duct tape wrapped cash
bundles were first covered in plastic bags and then covered by
carpet. Goat hair was placed in the area of the concealed cash
14
in an attempt to conceal the odor from a drug sniffing dog. In
addition, because the packaging of the cash in duct tape and
markings on the packages are consistent with methods used by drug
traffickers without regard to the odor, placing the packaged cash
in a hidden compartment also helped conceal the association of
the money with an illegal enterprise. The jury could conclude
that these aspects of the transportation were designed to conceal
or disguise the nature of the cash as drug proceeds.
The evidence also supports a conclusion that the
transportation was designed to conceal the location of the cash.
Part of the transportation plan outlined above clearly was
designed to contain the odor of the cash and hide the cash in a
secret compartment during transport.
The government’s proof also establishes that the
transportation was designed to conceal or disguise the source,
ownership or control of the cash. Cuellar had very little
information about the person, identified by Cuellar as Mr.
Morcia, who was the owner of the cash. The transportation plan
allowed the owner to put the cash in the hands of an intermediary
or third party, which made it difficult for authorities to
determine who actually owned or controlled the cash. Agent
Nuckles testified that drug dealers typically insulate themselves
15
from others in the organization, such as couriers, to avoid
revealing their identity.
Cuellar argues that a conviction under § 1956, which deals
with money laundering, requires proof that the defendant’s acts
created the appearance of legitimate wealth or converted dirty
money into clean. The Second Circuit in United States v. Ness,
466 F.3d 79 (2d Cir. 2006), expressly rejected this argument and
the panel’s position on this issue. In Ness, the defendant
received narcotics proceeds and remitted them to others connected
with the same drug operation. Concealment was established by the
use of “clandestine meetings to transfer large sums of concealed
cash, the use of coded language, and the scrupulous avoidance of
a paper trail.” Id. at 81. On this evidence, the Second Circuit
found that “a jury could find that the acts of which Ness is
accused were designed, at least in part, to conceal the identity
of the funds.” Id. We agree. Although creating the appearance
of legitimate wealth is one way of concealing illicit funds, it
is not the only way concealment can be established.6 This
6
The phrase “create the appearance of legitimate wealth”
appears to have first appeared in a statement of purpose of money
laundering by the Department of the Treasury. As quoted in United
States v. Garcia-Emanuel, 14 F.3d 1469, 1474 (10th Cir. 1994), the
purpose is “concealing the illicit sources of their monies by
creating the appearance of legitimate wealth.” Garcia-Emanuel
quotes a similar description by the President’s Commission on
Organized Crime. The commission “described money laundering as
schemes designed to assist criminals who ‘seek to change large
16
argument is inconsistent with the statutory language and with our
case law. Congress chose the broad, unqualified word “conceal.”
It makes no sense to say that Congress only intended to prohibit
concealment that is accomplished in a certain way.
Two cases from this circuit hold that simply taking steps to
hide illicit funds is sufficient to prove concealment. In United
States v. Short, 181 F.3d 620 (5th Cir. 1999), the defendant gave
$25,000 in cash to his wife with instructions to put it in a
safety deposit box in a relative’s name. The defendant’s
conviction of money laundering was sustained even though nothing
happened to the cash except the defendant removed it from his
possession and tried to hide it. In United States v. Cihak , 137
F.3d 252 (5th Cir. 1998), the defendant Bloch hurriedly
transferred funds from his bank in the U.S. to banks out of the
country after his co-conspirator was convicted of bank fraud.
Concealment was found based on the timing of the transfers
coincident with his co-defendant’s conviction and the defendant’s
apparent hurry to liquidate his accounts and transfer them out of
the country. The funds were not converted into other assets and
were placed in accounts under the defendant’s name.
amounts of cash . . . into ostensibly legitimate form, such a
business profits or loans, before using those funds for personal
benefit . . .’” Id.
17
Cases in other circuits with facts more closely on point
with this case support a conclusion that concealment was
established in this case. In United States v. Carr, 25 F.3d 1194
(3d Cir. 1994), the defendant’s conviction for international
money laundering was affirmed on evidence that Carr transported
cash in a carry-on bag for a flight to Colombia. When asked at
the airport to declare any monetary instruments in excess of
$10,000, he declared that he had only $4,000 in cash. A search
revealed $180,000 in cash hidden in a container in the bag and an
additional $6,000 on his person. Carr told a highly suspicious,
“if not incredible” story about the source and destination of the
funds.7
Cuellar argues that the 10th Circuit opinion in United
States v. Dimeck, 24 F. 3d 1239 (10th Cir. 1994), supports his
argument that proof of concealment requires evidence that the
defendant attempted to convert dirty money into clean money and
7
See also United States v. Hurtado, 38 F. App’x. 661 (2d Cir.
2002). Hurtado with others was stopped crossing the border into
Canada. A search of her van revealed several pieces of luggage
containing $540,000. Drug dogs alerted to two of the bags.
Customs agents testified regarding methods used by drug cartels to
use couriers to exchange large quantities of drugs for cash, the
packing of the money (which matched the packaging in the van), and
that cash was commonly placed in bags that had previously held the
drugs explaining why the drug dogs would alert on bags containing
cash. Hurtado lied about her employment and had no legitimate
explanation for the source of the cash or its destination. Her
conviction for international money laundering under § 1956(a)(2)
was affirmed.
18
that mere transportation of illegal funds from place to place is
not the type of activity the statute is intended to target.
Dimeck’s role in the drug transaction was to collect funds in
Detroit that were due to the supplier and deliver the funds to
the courier who in turn brought the funds to the supplier in
California. Dimeck delivered the funds to the courier in an
unsealed, untaped box, marked with the logo of Dimeck’s company.
Dimeck suggested that the courier move the cash to another
container, but the courier did not do so.
The 10th Circuit found that the evidence did not support a
conviction because “delivery of the money did not result in the
kind of transaction prohibited by 18 U.S.C. § 1956(a)(1)(B)(i).”
Id. at 1246. The funds were transferred to the supplier in a box
marked with Dimeck’s company logo and were not transported in a
manner designed to confuse or mislead anyone about the
characteristics of the proceeds. The court also seemed to
conclude that the underlying crime was not complete and the
government failed to establish that funds were proceeds of
illegal activity. The court observed that “The money laundering
statute was designed to punish drug dealers who thereafter take
the additional step of attempting to legitimize their proceeds so
that observers think their money is derived from legal
enterprises.” Id. at 1247.
19
Dimeck is distinguishable from today’s case on several
bases. We read the primary holding of Dimeck to rest on the
conclusion that the funds were not yet proceeds of a specified
illegal activity, because the illegal activity, the drug sale,
was not complete until the funds were delivered.8 In addition,
the facts of Dimeck do not display the effort to hide or conceal
the “nature, the location, the source, the ownership, or the
control” of the funds that the government established in
Cuellar’s case. The participants in Dimeck simply transported
the “illegal proceeds as illegal proceeds” with a minimal attempt
at concealment. Id. at 1246.
In contrast, the record in today’s case reflects a number of
facts a recent 11th Circuit opinion considered relevant in
establishing the concealment prong of the money laundering
statute. United States v. Johnson, 440 F.3d 1286 (11th Cir.
2006), contains a thorough review of the types of activities that
satisfy the concealment element under 18 U.S.C. § 1956(a)(1) and
(a)(2). From a review of the caselaw, the following were listed
as evidence to consider in determining whether a transaction or
transportation is designed to conceal:
8
We question the conclusion that the funds making up the
payment are not themselves proceeds of illegal activity because
they presumably were generated by sales of the drugs to end users
or other distributors.
20
Statements by a defendant probative of intent to
conceal; unusual secrecy surrounding the transaction;
structuring the transaction in a way to avoid
attention; depositing illegal funds in the bank account
of a legitimate business; highly irregular features of
the transaction; using third parties to conceal the
real owner; a series of unusual financial moves
culminating in the transaction; or expert testimony on
practices of criminals.
Id. at 1291. Another consideration the court found probative is
whether the money is “better concealed or concealable after the
transaction than before.” Id. After looking at the facts of
several transactional money laundering cases, the court stated
that they had in common “either numerous transfers, multiple
accounts, or the use of third parties to effectuate concealment
of the actual source of the money.” Id. at 1293.
Several of the activities listed above are present in this
case. Cuellar made unbelievable and inconsistent explanations
for his activities indicating an intent to conceal. The way the
money was hidden within the vehicle demonstrates unusual secrecy
surrounding the transportation of the funds. Expert testimony
was presented about the practices of criminals transporting
illegal proceeds to Mexico consistent with Cuellar’s
transportation. In addition, Cuellar was a third party
transporter used to effectuate concealment of the actual source
and ownership of the money. Finally, given Mexico’s largely cash
21
economy, if Cuellar had successfully transported the funds to
Mexico without detection, the jury was entitled to find that the
funds would have been better concealed or concealable after the
transportation than before.
Under the facts as presented by the government, the evidence
was more than sufficient to support Cuellar’s conviction of money
laundering under 18 U.S.C. § 1956(a)(2).
III.
Cuellar’s remaining issue on appeal relates to the expert
testimony of Special Agent Nuckles. Cuellar argues that the
district court erred in allowing Nuckles to testify because the
government failed to provide the defense with the disclosure
required by Federal Rule of Criminal Procedure 16. Cuellar also
contends that parts of Nuckles’ testimony constitute
impermissible drug courier profiling and should have been
excluded on that basis.
Shortly after Cuellar was arraigned, he filed a motion under
Fed. R. Crim. P. 16(a)(1)(G) requesting a summary of the
government’s opinion testimony. The district court granted the
motion. A little over two weeks before trial, the government
informed Cuellar of the government’s intent to introduce expert
testimony from Richard Nuckles, an Immigration and Customs
Enforcement Agent. The letter stated that his testimony would
22
concern background information regarding drug smuggling
operations and methods used to transport drugs and money into and
out of the United States. Fed. R. Crim P. 16(a)(1)(G) requires
the government to provide upon request a written summary of
expert testimony that the government intends to use in its case
in chief, including “the witness’s opinions, the bases and
reasons for those opinions, and the witness’s qualification.”
The government’s disclosure did not fully comply with the rule.
Cuellar argues that the district court reversibly erred by
denying his motion to exclude Nuckles' testimony.
This court reviews a district court’s rulings on discovery
violations for abuse of discretion. United States v. Doucette,
979 F.2d 1042, 1044-45 (5th Cir. 1992). A violation of Rule 16
does not necessitate exclusion of the testimony. Rule 16 (d)(2)
states that the court “may,” but is not required, to impose
sanctions. If the district court elects to admit the evidence
without sanctions, a new trial must be ordered based on alleged
discovery error only when a defendant demonstrates prejudice to
his substantial rights. Doucette at 1044-45. See also
23
Fed.R.Crim.P. 52(a).9 Cuellar raises two sources of prejudice,
surprise and the admission of drug profile testimony.
The type of expert testimony offered by Officer Nuckles has
become almost routine in drug cases where interpretation of the
defendant’s actions or other evidence would be helpful to the
jury. United States v. Ortega, 150 F.3d 937, 943 (8th Cir.
1998). In this circuit, “the rule is well-established that an
experienced narcotics agent may testify about the significance of
certain conduct or methods of operation unique to the drug
distribution business, as such testimony often is helpful in
assisting the trier of fact understand the evidence.” United
States v. Washington, 44 F.3d 1271, 1283 (5th Cir. 1995). Such
opinions, unlike technical or scientific expert opinions, are not
complex, so less extensive disclosure may adequately advise the
defense of the nature of the testimony and allow them to prepare
for cross-examination. United States v. Jackson, 51 F.3d 646,
651 (7th Cir. 1995).
9
The Doucette test provides the proper standard of review
for deciding whether the error claimed by Cuellar requires reversal
of his conviction. See also Fed.R.Crim.P. 52(a). The dissent is
correct that the test laid out in United States v. Sarcinelli, 667
F.2d 5, 6-7 (5th Cir. Unit B 1982), provides the district court with
the framework for evaluating whether to impose a sanction for a
Rule 16 violation and for this court to evaluate the propriety of
the sanction imposed. See also United States v. Katz, 178 F.3d
368, 371 (5th Cir. 1999), and United States v. Bentley, 875 F.2d
1114, 1118 (5th Cir. 1989). Reversal requires a showing that the
refusal to impose a sanction prejudiced the defendant.
24
Although Cuellar has demonstrated a violation of Rule
16(a)(1)(G) because the government’s disclosure regarding
Nuckles’ testimony was incomplete, he has not shown that the
violation prejudiced his substantial rights. The principal
violation of Rule 16 arises from the failure to provide Nuckles’
qualifications and the basis for his testimony on a timely basis.
Cuellar does not claim prejudice related to the information that
was lacking in the notice the government did provide or argue
that it would have provided additional grounds for cross-
examination. The disclosure, while lacking in detail, did reveal
in general terms the nature of Agent Nuckles’ testimony. The
record of counsel’s cross examination of Nuckles shows likely
familiarity with testimony of this nature which is frequently
used by the government in the prosecution of cases of this
nature. See United States v. Washington, 44 F.3d at 1283, n.45
and cases cited therein. Cuellar did not directly attack
Nuckles’ testimony about the manner in which drug smuggling
operations are conducted. However, he did effectively cross-
examine Nuckles and elicited testimony that tended to undermine
the government’s point that Cuellar was transporting the proceeds
of a drug transaction. Nuckles conceded on cross-examination
that a variety of illicit and legal enterprises could have a need
to transport United States currency to Mexico and also testified
25
that United States currency can be useful in obtaining permits
and other items of value needed to do business in Mexico.
The purpose of Rule 16(a)(1)(G) is “to minimize surprise
that often results from unexpected expert testimony, reduce the
need for continuances, and to provide the opponent with a fair
opportunity to test the merit of the expert’s testimony through
focused cross-examination.” Fed. R. Crim P. 16 Advisory
Committee Notes to 1993 amendment. Although the notice provided
by the government did not contain all the detail required by the
rule, it did notify Cuellar of the fact that the government
intended to call Agent Nuckles as an expert witness and the
subject of his expected testimony. The purposes of Rule 16 were
not frustrated. Cuellar has not shown that the violation of the
discovery order by the government necessitated the exclusion of
Nuckles’ testimony, the “most extreme sanction possible.” United
States v. Bentley, 875 F.2d 1114, 1118-19 (5th Cir. 1989).
Neither has he demonstrated that his substantial rights were
prejudiced by any surprise resulting from the discovery
violation. Doucette, 979 F.2d at 1044-45; United States v.
Smith, 354 F.3d 390, 397 (5th Cir. 2003).
Cuellar also argues the district court erred in allowing
Nuckles to provide drug courier profile testimony. Cuellar
26
specifically references the following testimony, which occurred
during the government’s direct examination of Nuckles:
Q: Does a drug smuggler give his marijuana or his
money to be transported to someone who doesn’t know
what they are transporting?
A: Not in my experience. The people who are driving
money or who are driving dope know that they are
transporting either dope or money, something of value.
They may not know that - - whether they are marijuana
or cocaine. They may not know how much money they
have, but they know they are transporting it.
Although Cuellar objected to the admission of Nuckles’ testimony
generally as a violation of Rule 16, Cuellar did not object to
the above testimony as improper drug-courier profile testimony.
An appellant must raise an objection to the admission of
evidence at trial such that the issue is presented to the
district court with sufficient specificity. Rule 103(a)(1)
F.R.E.; United States v. Maldonado, 42 F.3d 906, 910 (5th Cir.
1995). Cuellar’s failure to raise the issue at trial results in
plain error review. Id. at 912. Under that standard, we do not
correct an error raised for the first time on appeal unless there
is (1) error, (2) that is plain, and (3) that affects substantial
rights. United States v. Olano, 507 U.S. 725, 731-37 (1993). If
these factors are established, the decision to correct the
forfeited error is within the court’s sound discretion, which
will not be exercised unless the error seriously affects the
27
fairness, integrity, or public reputation of judicial
proceedings. Id. at 736.
We have previously disapproved of the use of an expert’s
drug courier profile evidence as a substitute for substantive
evidence of a defendant’s guilt and we repeat that disapproval
today. A drug-courier profile is “nothing more than a
compilation of characteristics which aid law enforcement
officials in identifying persons who might be trafficking in
illegal narcotics.” United States v. Williams, 957 F.2d 1238,
1242 (5th Cir. 1992). Drug-courier profiles “have long been
recognized as inherently prejudicial because of the potential
they have for including innocent citizens as profiled drug
couriers” and therefore are not admissible as substantive
evidence of the defendant’s guilt. Id. (internal quotation marks
omitted.).
In United States v. Gutierrez-Farias, 294 F.3d 657 (5th Cir.
2002), this court held that it was error to admit expert
testimony that “crosses the borderline . . . between a mere
explanation of the expert’s analysis of the facts and a forbidden
opinion on the ultimate legal issue in the case. The clear
suggestion of [the agent’s ] testimony is that, because most
drivers know there are drugs in their vehicles, Gutierrez must
have known too.” Id. At 663 (internal quotations and citations
28
omitted). Similarly in United States v. Ramirez-Velasquez, 322
F.3d 868 (5th Cir. 2003), where the agent testified that drug
organizations seek trustworthy drivers because their cargo is
valuable and uninsurable, this court determined that the
admission of such testimony was obvious error because the agent
“made the generalization, albeit not quite directly, that drivers
know they are carrying drugs.” Id. at 878-79 & n. 12.
Nuckles’ testimony that “[t]he people who are driving money
or who are driving dope know they are transporting either dope or
money, something of value,” is indistinguishable from the
testimony held erroneously admitted in Gutierrez-Farias and
Ramirez-Velasquez. Id. at 879. Cuellar has thus established an
error that is obvious, thereby satisfying the first two prongs of
the plain error standard. However, Cuellar also bears “the
burden of demonstrating that the error affected his substantial
rights, i.e. affected the outcome of the proceedings.” Id.
Cuellar cannot sustain that burden. As set forth above in
the description of the evidence presented at trial, the jury
heard ample evidence of Cuellar’s guilty knowledge. Cuellar was
carrying a large sum of cash on his person that smelled
noticeably of marijuana. He was nervous when stopped by officers
on the highway and made numerous inconsistent false and
implausible statements about his travels. He attempted to focus
29
the officers’ attention on the trunk of the car and away from the
secret compartment where the money was hidden. Once he was
arrested and brought in for further questioning he told officers
that if he did not have the car in Acuna by midnight his family
would be floating down the river. This evidence provided a firm
basis for the jury to find that Cuellar knew he was transporting
funds that represented the proceeds of illegal activity. Because
Cuellar has not demonstrated that his substantial rights were
affected by the admission of improper drug-courier profile
testimony, he has not shown plain error. See Ramirez-Velasquez,
322 F.3d at 879.
IV.
For the foregoing reasons, Cuellar’s conviction is affirmed.
AFFIRMED.
30
JERRY E. SMITH, Circuit Judge, with whom DEMOSS, Circuit Judge,
joins, dissenting:
This is a case of a prosecution run amok. Mike Nifong, an-
other prosecutor apparently familiar with the “win at any cost”
mantra,1 most surely would approve. The government set out to
“get” Humberto Cuellar for something, and why not? He is appar-
ently a “bad dude,” an accessory to what likely was a serious
drug-running operation; moreover, this is, after all, the “war on
drugs.” But instead of charging under a statute of which Cuellar
(by his attorney’s admission) is guilty, the government used the
wrong law, and the majority now has blessed the government’s mis-
steps with a holding that makes “money laundering” out of
virtually any transfer of illicit proceeds across an
international border. A person steals petty cash, hides it in
his shoe, and is caught crossing into Mexico: “money laundering,”
according to the en banc majority’s rendering of this appeal.
The government is guilty of at least three excesses in this
case. First, it stumbled by charging the wrong statute, when it
easily could have used the correct one. Then, in a transparent
1
See, e.g., Dorothy Rabinowitz, The Michael Nifong Scandal,
WALL ST. J., Jan. 11, 2007, at A15, available at
http://www.opinionjournal.com/medialog/?id=110009507; Editorial, As
Duke Case Unravels, Focus Turns to Prosecutor, USA TODAY, Dec. 27,
2006, at A12, 2006 WLNR 22559516.
-31-
effort to cover for its blunder, it has succeeded in making a
mockery of the concept of money laundering in this court. And
finally, it blatantly deprived Cuellar of his rights at trial by
its knowing failure to provide adequate disclosure of the
expected testimony of a key, expert witness.
Today’s zealous en banc majority aids and abets the
government’s excesses. It exhibits an impressive determination
to aid the “war on drugs” and the government’s boundless quest to
incarcerate a foot soldier who apparently is on the wrong side of
that war. Unfortunately, to achieve its end the majority ignores
common sense, context, and accepted principles of statutory
interpretation to reach an ultimately absurd and embarrassing re-
sult. Because I decline to rewrite the law judicially,
I respectfully dissent.
I.
The relevant statute, 18 U.S.C. § 1956, bans, inter alia, a
transportation of money that a defendant knows is designed “to
conceal or disguise the nature, the location, the source, the
ownership, or the control of the proceeds of specified unlawful
activity.” 18 U.S.C. § 1956(a)(2)(B)(1). The majority finds
that because Cuellar temporarily hid the money to transport it,
-32-
his behavior is within the plain meaning of the words “conceal”
and “location.”
If “conceal” and “location” are considered in isolation, the
majority’s reading might be plausible. But these terms are not
supposed to be considered in isolation, and we must follow the
Supreme Court’s guidance:
The definition of words in isolation, however, is not
necessarily controlling in statutory construction. A
word in a statute may or may not extend to the outer
limits of its definitional possibilities.
Interpretation of a word or phrase depends upon reading
the whole statutory text, considering the purpose and
context of a statute, and consulting any precedents or
authorities that inform the analysis.
Dolan v. United States Postal Serv., 126 S. Ct. 1252, 1257
(2006).2 The majority must rest its interpretation on the
meaning of the words in isolation, because if the context and
purpose of the statute are properly considered, the majority’s
interpretative error is quickly exposed.
At least two interpretations of these words are plainly ap-
parent. There is a difference between concealing something to
2
The Dolan Court found that, based on context and precedent,
the term “negligent transmission” had a statutory meaning that was
more narrow than its ordinary meaning and usage. The majority
opinion was joined by Justice Scalia, one of the judiciary’s
foremost textualists. See also United States v. Lowe, 118 F.3d
399, 402 (5th Cir. 1997) (“[T]he plain meaning of a word cannot be
determined in isolation, but must be drawn from the context in
which it is used.” (citing Reich v. Arcadian Corp., 110 F.3d 1192,
1195-96 (5th Cir. 1997))).
-33-
transport it, and transporting something to conceal it. Cuellar
was unquestionably doing the former: He concealed money under the
floorboards of his car to transport it. Without knowing his
ultimate plans for disposing of the cash once he reached his
destination, however, it is uncertain whether he was also doing
the latter.
For example, if Cuellar intended to place the money in a
safe deposit box in another’s name, then he was transporting the
money to conceal it. But if he intended to spend the money,
deliver it to someone, or even donate it to charity, then he was
merely concealing the money to transport it. The government did
not prove or even attempt to prove anything about what Cuellar
planned to do with the money once he reached his destination; the
prosecution showed only that he was concealing the money to
transport it.
The majority reasons that because “Congress chose the broad,
unqualified word ‘conceal,’” the statute prohibits both
transporting money to conceal it and concealing it to transport
it. The majority finds that “[i]t makes no sense to say that
Congress only intended to prohibit concealment that is
accomplished in a certain way.” But later in the opinion the
majority explicitly contradicts itself when it declares that the
-34-
statutory meaning of “conceal” does not include “minimal attempts
at concealment,” such as concealing money in a closed box.
This is a damaging admission, by the en banc majority, that
these words cannot be interpreted in isolation. In isolation
they could bear at least several meanings, from banning, as the
text states, all concealment, to proscribing only those efforts
at concealment that go beyond “minimal effort,” to banning
concealment that is indicative of the traditional understanding
of money laundering. The majority uses the frailest of legal
logic to claim that the second option is correct. An honest ex-
amination reveals how wrong that proffered logic really is.
The statute’s title
This statute’s title is “[l]aundering of monetary
instruments.” Where, as here, a statutory phrase is susceptible
to multiple interpretations, “the title of a statute or section
can aid in resolving an ambiguity in the legislation’s text.”3
When used in a monetary context, to launder is to disguise ille-
3
INS v. Nat’l Ctr. for Immigrants’ Rights, Inc., 502 U.S.
183, 189 (1991). See also, e.g., Carter v. United States, 530 U.S.
255, 267 (2000); Almendarez-Torres v. United States, 523 U.S. 224,
234 (1998); FTC v. Mandel Bros., Inc., 359 U.S. 385, 388-89 (1959);
United States v. Katz, 271 U.S. 354, 357 (1926); Smythe v. Fiske,
90 U.S. 374, 380 (1874); Denn v. Reid, 35 U.S. 524, 527 (1836).
-35-
gally-obtained money by making it appear legitimate.4 This usage
of the word is well accepted and has existed for over thirty-five
years.5
The statute’s title cuts against the majority’s
interpretation. Of the two interpretative
possibilitiesSSconcealing money to transport it and transporting
money to conceal its locationSSthe latter is consistent with the
definition of money laundering, which is to make dirty money
difficult to trace by concealing its illegality.
4
See, e.g., PRESIDENT'S COMM'N ON ORGANIZED CRIME, THE CASH CONNECTION:
ORGANIZED CRIME, FINANCIAL INSTITUTIONS, AND MONEY LAUNDERING 7 (Books for
Bus. 2001) (1985) (defining money laundering as “[t]he process by
which one conceals the existence, illegal source, or illegal
application of income, and then disguises that income to make it
appear legitimate”); BLACK’S LAW DICTIONARY 1027 (8th ed. 2004)
(stating that money laundering is “the act of transferring
illegally obtained money through legitimate people or accounts so
that its original source cannot be traced”); 8 OXFORD ENGLISH
DICTIONARY 702 (2d ed. 1989) (explaining that to launder is “to
transfer funds of dubious or illegal origin, usually to a foreign
country, and then later to recover them from what seem to be
‘clean’ sources”); THE AMERICAN HERITAGE DICTIONARY OF THE ENGLISH LANGUAGE
992 (4th ed. Houghton Mifflin Co. 2006) (showing that to launder is
“to disguise the source or nature of (illegal funds, for example)
by channeling through an intermediate agent”); THE NEW OXFORD AMERICAN
DICTIONARY 958 (2d ed. Oxford Univ. Press 2005) (stating that to
launder is to “conceal the origins of (money obtained illegally) by
transfers involving foreign banks or legitimate businesses”).
5
THE BARNHARD DICTIONARY OF ETYMOLOGY 581 (Robert K. Barnhard ed.,
H.W. Wilson Co. 1988) (“The modern meaning of launder, as used to
denote the ‘cleansing’ of illegally obtained ‘dirty’ money to make
it appear ‘legitimate, lawfully gained, or acceptable,’ originated
in 1970.”).
-36-
Legislative history
The terms of a criminal statute are to be construed
according to their “ordinary and natural meaning . . . as well as
the overall policies and objectives of the statute.” United
States v. Kay, 359 F.3d 738, 742 (5th Cir. 2004) (quoting United
States v. Lowe, 118 F.3d 399, 402 (5th Cir.1997)). If the
language can bear more than one meaning, courts can use
legislative history as an interpretive aid. Id. at 743.
When viewed in its totality, this statute is designed to
combat money laundering, which is the cleansing of illegal funds,
and not to curb the mere transportation of concealed cash. This
is reinforced, as I have said, by the statute’s title. The
multiple possible interpretations warrant, however, an
examination of legislative history.
This inquiry is fraught with peril, because it is
seductively easy to find a small, but misrepresentative, piece of
legislative history that appears to support a given position.6
Caution is thus required.7 But even when viewed with great care,
6
As Judge Leventhal warned, using legislative history is
sometimes akin to “looking over a crowd and picking out your
friends.” See Patricia M. Wald, Some Observations on the Use of
Legislative History in the 1981 Supreme Court Term, 68 IOWA L. REV.
195, 214 (1983).
7
See Aviall Servs., Inc. v. Cooper Indus., Inc., 312 F.3d
677, 683-84 (5th Cir. 2002) (citing Boureslan v. Aramco, 857 F.2d
1014, 1018 (5th Cir. 1988), adopted en banc, 892 F.2d 1271 (5th
(continued...)
-37-
the legislative history makes it obvious that Congress passed
this statute to combat traditional money laundering. Absent is
any support whatsoever for the majority’s interpretation.
The government’s response to money laundering activity began
with the passage of the Bank Secrecy Act in 1970.8 That law,
however, did not reach much of the money laundering that was
occurring. Thus, in 1984 the President’s Commission on Organized
Crime released a report detailing the problem presented by money
laundering and recommending the legislative solution that
eventually became the law at issue in this case, § 1956.
The executive report defines money laundering as “the
process by which one conceals the existence, illegal source, or
illegal application of income, and then disguises that income to
make it appear legitimate.” PRESIDENT’S COMM’N, supra, at 7. The
term is “derived from the argot of criminals, who refer to
‘dirty’ or ‘black’ cash being ‘washed’ so that it can be used
openly.” Id. at 84 n.4. The report provided several examples of
the money laundering behavior that should be targeted by
legislation: payments to the Gambino family that were transferred
through three bank accounts, including one in Switzerland, then
7
(...continued)
Cir. 1990), aff'd sub nom. EEOC v. Arabian Am. Oil Co., 499 U.S.
244 (1991)).
8
See Pub. L. 91-508, 84 Stat. 1118, § 221(a)(2), as amended,
31 U.S.C. § 5313(a).
-38-
withdrawn and placed into a safe deposit box; secretion into
Swiss bank accounts, by the head of the New Orleans family of La
Cosa Nostra, of $1.8 million that had been extorted from the
Teamsters; a drug trafficker’s practice of making numerous small
deposits, totaling over $500,000, into a casino account, gambling
a small amount, and then withdrawing the balance from the account
in the form of checks made out to third parties, which were
deposited in a securities firm before withdrawal; and the Hell’s
Angels’ use of drug proceeds to purchase, through front men,
failing businesses and real estate to legitimize the cash. Id.
at 10-11. Each of these examples is consistent with a legisla-
tive desire to combat not the mere transportation of hidden cash,
but the cleansing of illegitimate cash to make it appear
legitimate.
The same intent is apparent in the legislative history once
Congress began, based on the President’s recommendations, to
craft the money laundering bill. The committee report states
that Congress aimed the legislation at “complex schemes to
disguise the illegal nature and true source” of the proceeds of
their illegal activity. United States v. Butler, 211 F.3d 826,
829 (4th Cir. 2000) (quoting S. REP. NO. 99-433, at 2 (1986)).
Many of our sister circuits agree; as one summarized, “The
legislative history indicates that Congress passed the money
-39-
laundering statutes to criminalize the means criminals use to
cleanse their ill-gotten gains.”9
This intent is also plainly evinced by the floor statements
of the bill’s sponsors. Senator Thurmond, then Chairman of the
Judiciary Committee, said that “[c]reation of a money laundering
offense is imperative if our law enforcement agencies are to be
effective against the organized criminal groups which reap
profits from unlawful activity by camouflaging the proceeds
through elaborate laundering schemes.” See 132 CONG. REC. 17,571
(1986). Senator Biden remarked that “[m]oney laundering is the
process by which the proceeds of crime are disguised to appear
legitimate . . . . Or as a former money launderer stated,
‘Laundering money is to switch the black money or the dirty money
to clean money.’” Id. Senator DeConcini declared that
“[w]ithout the means to launder money, thereby making cash
generated by a criminal enterprise appear to come from a
9
United States v. Savage, 67 F.3d 1435, 1441 (9th Cir. 1995)
(emphasis added). See also United States v. Edgmon, 952 F.2d 1206,
1213 (10th Cir. 1991) (citing S. REP. NO. 99-433, at 4); United
States v. Estacio, 64 F.3d 477, 481 (9th Cir. 1995) (“The senate
report on § 1956 expresses the need for a federal criminal offense
aimed directly at the activity of laundering the money gained from
illegal activity.”); United States v. Holmes, 44 F.3d 1150, 1154
(2d Cir. 1995) (“Creation of a money laundering offense is
imperative if our law enforcement agencies are to be effective
against the organized criminal groups which reap profits from
unlawful activity by camouflaging the proceeds through elaborate
laundering schemes.”) (quoting S. REP. NO. 99-433, at 9).
-40-
legitimate source, organized crime could not flourish as it now
does.” Id. at 18,487. Finally, Senator Hatch defined the target
of the bill as “the process by which one conceals the existence,
illegal source, or illegal application of income and camouflages
the source of that income to make it appear legitimate.” Id.
The final piece of legislative history evincing the intent
of Congress can be found by examining a subsequent law, 31 U.S.C.
§ 5332, which prohibits bulk cash smuggling. See Pub. L. No.
107-56, § 371(c), 115 Stat. 337 (2001). It was enacted in 2001
because Congress realized that § 1956 did not prohibit the
carrying of bulk cash across a U.S. border.10 Or, as the
Committee put it, “under current law, the person transporting
currency may not be guilty of any money laundering offense.” See
H.R. REP. 107-250(i), at 37. The law was passed with a finding
that “[t]he arrest and prosecution of bulk cash smugglers are
important parts of law enforcement’s effort to stop the
laundering of criminal proceeds, but the couriers who attempt to
smuggle the cash out of the United States are typically low-level
employees of large criminal organizations . . . .” Pub. L. No.
10
The astute reader may ask why Cuellar was not convicted
under this statute. It is because the government did not charge
him with it, but opted instead to charge money laundering, which
carries a maximum prison term of twenty years, compared to a
maximum of five for bulk cash smuggling. Cuellar concedes on
appeal that he violated § 5332.
-41-
107-56 § 371(a)(5). The conclusion is inescapableSSCongress
enacted § 5332 because bulk cash smuggling by low-level drug
couriers is not proscribed by § 1956.
Thus, the history underlying the enactment of § 5332 is
especially damning to the position taken today by the en banc
majority. Congress would not have passed a statute banning bulk
cash smuggling by low-level drug couriers if such behavior was
already prohibited as money laundering. Maybe because it would
doom its desired conclusion, the majority conveniently opts not
to address this issue. It ignores all the legislative history,
hiding instead behind the facade that the plain language of the
statute compels its conclusion.
Further, none of the pitfalls that occasionally plague an
inquiry into legislative history is present here. It is
overwhelmingly evident from the executive report, committee
reports, sponsor statements, and subsequent legislation that
Congress intended the money laundering statutes to target the
cleansing of illegally obtained money. In support of the en banc
majority’s novel interpretation, however, the government can
muster only one snippet of legislative history from § 1956SSa
single sentence from a floor statement that, when considered
fairly and in context, actually cuts against the majority’s
-42-
interpretation.11 In contrast, Cuellar cites thirty-eight pieces
of legislative history in consistent support of the correct
interpretation.
The rule of lenity
The rule of lenity is nearly as old as statutory
interpretation itself. See United States v. Wiltberger, 18 U.S.
(5 Wheat.) 76, 79 (1820). That rule dictates that ambiguous
statutory language in criminal statutes should be strictly
construed to ensure that we do not penalize conduct that Congress
did not intend to criminalize. See, e.g., United States v.
Elrawy, 448 F.3d 309, 316 (5th Cir. 2006). It is an “outgrowth
of our reluctance to increase or multiply punishments absent a
clear and definite legislative directive.” Id. (quoting Simpson
v. United States, 435 U.S. 6, 15-16 (1978)). The rule of lenity
is triggered if the interpretive issue is subject to “some
doubt,” and the doubt must be “resolved in favor of the
defendant.” Adamo Wrecking Co. v. United States, 434 U.S. 275,
11
The majority cites a statement from Senator Biden that money
laundering is used by drug traffickers to convert illegal cash into
manageable form. This quote came two sentences after Senator Biden
had defined money laundering as “the process by which the proceeds
of crime are disguised to appear legitimate.” 132 CONG. REC. 17,571
(1986).
-43-
284-85 (1978) (citing United States v. Bass, 404 U.S. 336, 348
(1971)).
The rule of lenity cuts against the majority’s
interpretation. The majority resolves the statute’s ambiguity in
a manner that exposes Cuellar to a punishment of twenty years’
imprisonment and a fine of up to $500,000. A strict construction
of the statute, as required by the rule of lenity, would find
that conviction requires proof that the money is being
transported to conceal its location, a burden the government
utterly failed to meet.
The Canon Against Absurdities
It is well established that reviewing courts must avoid
interpretations that produce absurd results.12 This maxim also
dictates that if a statute’s language appears plain but leads to
absurd results, the court should examine extrinsic interpretive
aids.13
12
Rowland v. Cal. Men’s Colony, 506 U.S. 194, 200 (1993); EEOC
v. Commercial Office Prods. Co., 486 U.S. 108, 120 (1988);
Carpenters Dist. Council v. Dillard Dep’t Stores, 15 F.3d 1275,
1285 (5th Cir. 1994) (citing Birdwell v. Skeen, 983 F.2d 1332, 1337
(5th Cir. 1993)).
13
Clinton v. City of New York, 524 U.S. 417, 429 (1998);
United States v. X-Citement Video, Inc., 513 U.S. 64, 69 (1994);
Burns v. United States, 501 U.S. 129, 135 (1991); Pub. Citizen v.
U.S. Dep’t of Justice, 491 U.S. 440, 454-55 (1989); Green v. Bock
Laundry Mach. Co., 490 U.S. 504, 509 (1989); Am. Trucking Ass’ns,
(continued...)
-44-
Two examples illustrate the absurdity of the majority’s
interpretation. First, imagine a young petty thief who
pickpockets a small sum of cash from an unsuspecting Laredo
tourist and intends to spend it on an enjoyable evening at the
bars of Nuevo Laredo, just across the Mexican border. Wanting to
escape suspicion at the border, the youth conceals the cash in
his shoe. But alas, his nervous demeanor prompts border agents
to question him further, and he reveals his crime. Under today’s
holding, this minor miscreant is now guilty of money laundering
and faces up to 20 years’ imprisonment and a fine of $500,000.
Our hypothetical international money-laundering youth satis-
fies all five prongs of the statute: (1) He attempted to
transport funds across a U.S. border; (2) the funds were the
proceeds of illegal activity; (3) he knew the funds were illegal;
(4) the method of transportation was designed to conceal the
location of the funds by hiding it from law enforcement; and
(5) the accused knew that the concealment was part of the
transportation plan. The fourth prong is satisfied because,
under today’s en banc decision, the concealment prong of the
money laundering statute requires only that a defendant
temporarily hide money for the purpose of transporting it. This
13
(...continued)
Inc. v. ICC, 659 F.2d 452, 459 (Former 5th Cir. Oct. 1981) (citing
United States v. Am. Trucking Ass'ns, 310 U.S. 534, 543-44 (1940)).
-45-
is because, as the majority lamely explains, “Congress chose the
broad, unqualified word ‘conceal.’ It makes no sense to say that
Congress only intended to prohibit concealment that is
accomplished in a certain way.”
This is an embarrassing and absurd result and thus cannot be
the correct meaning of the statute, yet it is the conclusion of
today’s majority and is now the law in this circuit. At oral ar-
gument the government claimed that the hypothetical pickpocket
would not be guilty of money laundering because hiding money in
one’s shoe is not concealment, but instead is only “mere
concealment,” whereas hiding money in a hidden compartment
covered with goat hair is concealment. When pressed, the
government attorney stated, “I don’t think that just concealing
money is what Congress was talking about.”
Today’s majority makes a similarly irrational
distinctionSSbetween concealment and “mere concealment”SSwhen it
distinguishes United States v. Dimeck, 24 F.3d 1239 (10th Cir.
1994). In that case the defendant hid cash in a box. The
majority claims this was insufficient to satisfy the concealment
prong of the statute, because it was “a minimal attempt at
concealment.”
Here the majority’s zealous reasoning completely unravels.
Its argument is purportedly premised on the plain words of the
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statute, so it refuses to consider the interpretive tools used
above, because it maintains that the text is not susceptible to
multiple interpretations: The majority reasons that “to conceal”
is to hide something,14 and Cuellar hid money while he was
transporting it, so his transportation was designed to conceal
and satisfies the statute.
But, when confronted with Dimeck, or presumably with the hy-
pothetical above, the majority says that it is only a “minimal
attempt” at concealment, or as the government says, “mere
concealment” or “normal concelament,” and accordingly is not
concealment under the statute. Thus, the majority goes beyond
the plain meaning and finds that when Congress said “conceal,” it
actually meant “tried really hard to conceal” or “concealed
really well.” This majority, as only a majority can, is having
its cake and eating it too: It refuses to examine tools of
statutory interpretation on the excuse that it must stop at the
plain meaning, but it distinguishes unfavorable precedents and
hypotheticals by going beyond the plain meaning.
14
Conceal means “to put, remove, or keep out of sight or
notice; to hide.” 3 OXFORD ENGLISH DICTIONARY 646 (2d ed. 1989). See
also WEBSTER’S NEW INTERNATIONAL DICTIONARY 551 (2d ed. 1958)(“To hide or
withdraw from observation; to cover or keep from sight; to prevent
the discovery of”); WEBSTER’S NINTH NEW COLLEGIATE DICTIONARY 271
(1984)(“to prevent disclosure or recognition of; to place out of
sight”).
-47-
The absurdity of the result reached by the majority is
starkly illustrated by still another hypothetical. Cuellar
would not be found guilty of violating this statute under today’s
ruling if he had set the cash, bundled and smelling of marihuana,
in a large pile in the passenger seat of his car. Under such a
circumstance, he would have made no attempt to hide the money, so
his behavior would fall outside the reach of the majority’s
ruling. One lesson pickpockets and petty criminals near a U.S.
border should take from today’s ruling is to carry the proceeds
of their illegal activity openly and conspicuously when crossing
the border, because if they hide the money they place themselves
at risk of a conviction for money laundering, with its stiffer
penalties. Although that might be a rational legislative goal,
it is not encompassed within a fair reading of § 1956.
The majority does not even pretend that Congress could have
intended these results. In fact, the majority does not address
these hypotheticals or any other consequences of its ruling. In-
stead, its ipse dixit opinion focuses exclusively on ensuring
that Cuellar’s conviction is upheld by any means acceptable to a
majority of the en banc judges.
-48-
Caselaw
The cases cited by the majority, when reviewed carefully,
provide no support for its view. The majority leads with United
States v. Ness, 466 F.3d 79 (2d Cir. 2006), in which the
defendant moved narcotics proceeds abroad at the behest of drug
traffickers. He transferred millions of dollars in cash from the
United States to Belgium, Canada, and Israel by employing a
sophisticated network of couriers who used code words and
clandestine meetings to smuggle the funds. United States v.
Ness, 2003 WL 21804973, at *1-*4 (S.D.N.Y. Aug. 6, 2003). Ness
does not, as the majority claims, indicate that the position of
the Second Circuit aligns with the position the majority adopts
today. The Ness court explicitly premises its holding on the
complexity of the scheme: “[W]e express no view as to
sufficiency issues that might arise when the remittance of
unlawful funds is surrounded by less elaborate stratagems or a
lesser measure of secrecy.” Ness, 466 F.3d at 81. The
scrupulous avoidance of a paper trail and the use of numerous
couriers, small bills, clandestine meetings to funnel millions of
dollars in drug proceeds overseas is classic money laundering,
and it could not be more distinguishable from Cuellar’s use of
duct tape and goat hair to conceal money temporarily while he
transported it. The majority next relies on United States v.
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Short, 181 F.3d 620 (5th Cir. 1999) (Davis, J.), in which
defendant was convicted of money laundering because he gave his
wife $25,000 and asked her to place it in a safe deposit box
rented in the name of one of her relatives. The majority claims
that “nothing happened to the cash except the defendant removed
it from his possession and tried to hide it.” The majority errs:
Something did happen to the cashSSShort passed it to someone else
with directions to place it in a secure location under the name
of an innocent relative. This is classic money launderingSSthe
transfer of dirty money through legitimate individuals to
disguise its criminal source.
This court did not hold in Short, as today’s majority
appears to claim, that Short’s conduct was sufficient to justify
the conviction merely because he tried to hide the cash. Rather,
the panel based its holding on the manner by which Short did so,
particularly his planned transfer of the cash through others.
The court held that the conviction was justified because “Short
was attempting to conceal or disguise [the cash] by having his
wife place the money in a safety deposit box under the name of
one of her relatives.” Id. at 626. By placing the money under
the name of someone not connected directly to Short, but only to
his wife, he was trying to make the cash appear legitimate.
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In contrast to Short, Cuellar merely hid cash to transport
it. He did not attempt to conceal the fact that the cash was
drug money; to the contrary, as Agent Nuckles testified,
Cuellar’s transportation method typified that of a drug courier.
Nor did Cuellar attempt to transfer the cash through legitimate
persons, as did Short, to make it appear legal. These
distinctions place Cuellar’s conduct outside the holding of
Short, under which the evidence against Cuellar is insufficient
to sustain a conviction under the statute the government charged.
The majority next cites United States v. Cihak, 137 F.3d 252
(5th Cir. 1998), which is just as distinguishable. Cihak
received approximately $2 million in illegal kickbacks funneled
through his attorney in an elaborate eight-step scheme to mask
the nature and source of the funds.15 Following a codefendant’s
15
The opinion described the laundering scheme by which
defendant Bloch would provide kickbacks to Cihak:
(1) First City paid Banner [Bloch’s company] for Bloch’s
consulting services; (2) Bloch deposited the checks from
First City into Banner’s account; (3) the funds were then
wired to another Banner account; (4) from this account,
Bloch drew checks payable to himself; (5) these checks
were deposited into his personal account; (6) checks made
payable to Landan [Cihak’s attorney] were then drawn on
this account; (7) these checks were deposited into
Landan’s firm’s account; (8) from this account, Landan
issued checks payable to various banks as payment on
Cihak's outstanding debts and to make investments for
Cihak.
(continued...)
-51-
conviction, Cihak transferred $860,000 to multiple foreign
accounts in different countries. Id. at 262. The money was
first transferred to two accounts in Texas before being sent to
accounts in Panama and Mexico. Id. As was the case in Ness and
Short, this is classic money laundering: The defendant split his
illegally gained money into smaller amounts, transferred these
amounts multiple times through different banks, and ultimately
placed them into offshore accounts. It is amazing that the
majority finds this precedent, involving sophisticated white-
collar money laundering, applicable to Cuellar’s use of duct tape
and goat hair to hide money covered in marihuana. It should be
obvious that Cihak’s behavior typified money laundering, as
targeted by § 1956, and that Cuellar’s did not.
The only other published case cited by the majority is
United States v. Carr, 25 F.3d 1194 (3d Cir. 1994), in which
defendant made numerous trips to the Cayman Islands and Colombia
to deposit quantities of bills of small denominations that had
been exchanged for large quantities of fresh $100 bills. Id. at
1199-1200. Once again, note the facts omitted by the majority,
which show that Carr was participating in classic money
15
(...continued)
Cihak, 137 F.3d at 257.
-52-
laundering: the exchange of large bills for smaller ones and the
making of multiple cash deposits into offshore banks accounts.
The majority repeats the same drill four timesSSit cites
cases, carefully removes all context, and ignores the
inconvenient details that distinguish those cases from Cuellar’s
conduct. All four decisions stand squarely for the proposition
that § 1956 bans only the transportation of money to conceal it,
not the concealment of money to transport it. Further, in citing
only these four inapposite decisions, the majority ignores the
overwhelming caselaw, in both this court and our sister circuits,
to the effect that the statute requires a design to create the
appearance of legitimate wealth.16 It is astounding that the
16
See, e.g. United States v. Dobbs, 63 F.3d 391, 397 (5th Cir.
1992) (“It is necessary to show a desire to create the appearance
of legitimate wealth or otherwise to conceal the nature of funds so
that it might enter the economy as legitimate funds.”); United
States v. Gonzalez-Rodriguez, 966 F.2d 918, 925 (5th Cir. 1992);
United States v. Powers, 168 F.3d 741, 748 (5th Cir. 1999) (“Under
the money laundering statute, the government must . . . show that
the defendant desired to create the appearance of legitimate wealth
or otherwise to conceal the nature of funds so that the money could
enter the economy as legitimate funds.”); United States v. Olaniyi-
Oke, 199 F.3d 767, 771 (5th Cir. 1999) (“In one sense, the ac-
quisition of any asset with the proceeds of illegal activity con-
ceals those proceeds by converting them into a different and more
legitimate-appearing form. But the requirement that the
transaction be designed to conceal implies that more than this
trivial motivation to conceal must be proved.”); Dimeck, 24 F.3d at
1246; United States v. Garcia-Emanuel, 14 F.3d 1469, 1474-1477
(10th Cir. 1994) (“[C]ases involving investments made with illegal
proceeds are close to the core of the statute’s purpose of
criminalizing changing cash into an ostensibly legitimate form,
(continued...)
-53-
majority rewrites the law in this circuit, and creates a circuit
split, in such a cavalier and intellectually imprecise manner.
Finally, in addition to arguing that Cuellar concealed the
money, the majority holds that the evidence can bear a jury find-
ing that Cuellar’s transportation method concealed the “nature of
the cash as drug proceeds.” But Cuellar did precisely the oppo-
site: He transported the cash in a manner that made it obvious
that this was drug money; the sum of $83,000 in cash smelling of
marihuana was bundled, wrapped in duct tape, and covered with
16
(...continued)
such as business profits or loans, before using those funds for
personal benefit.”) (internal quotations and citations omitted);
United States v. Sanders, 929 F.2d 1466, 1472 (10th Cir. 1991);
United States v. Stephenson, 183 F.3d 110, 121 (2d Cir. 1999)
(“There is no indication, therefore, that the drug proceeds were
spent to create the appearance of legitimate wealth . . . .”)
(internal quotations and citations omitted); United States v.
Samour, 9 F.3d 531, 535 (6th Cir. 1993); United States v. Esterman,
324 F.3d 565, 570 (7th Cir. 2003) (“[T]he Money Laundering Control
Act of 1986 was meant to target the transformation of funds derived
from illegal activities into a “clean” or useable form.”); United
States v. Jackson, 935 F.2d 831, 841-42 (7th Cir. 1991); United
States v. Wynn, 61 F.3d 921, 926 (D.C. Cir. 1995) (upholding a
money laundering conviction because, inter alia, “the jury
reasonably could have inferred that Wynn knew that their money was
dirty and that he knew that the two were anxious to disguise their
identity as the purchasers of the merchandise and the source of the
cash used to pay for it.”); United States v. Johnson, 440 F.3d
1286, 1291 (11th Cir. 2006) (“Merely engaging in a transaction
with money whose nature has been concealed through other means is
not in itself a crime . . . . If transactions are engaged in for
present personal benefit, and not to create the appearance of
legitimate wealth, they do not violate the money laundering
statute.” (quoting United States v. Majors, 196 F.3d 1206, 1213
(11th Cir. 1999))).
-54-
plastic bags, then placed in a hidden compartment and covered
with carpet and goat hair. These measures would not persuade
anyone that this cash was legitimate.
Quite the oppositeSSit is difficult to imagine what more
could be done to indicate that this cash was illicit. In
addition to comporting with common sense, this conclusion is
verified by Agent Nuckles’s testimony that this was a “usual
method” of transporting drug money. The majority is incorrect:
This method of transportation made it abundantly obvious that the
cash was drug money.
In sum, the majority finds a way to ensure that Cuellar goes
to prison, thereby protecting the Executive Branch’s prosecution
despite its having charged entirely the wrong statute. Unfortu-
nately, that now-successful effort requires ignoring the
statute’s context, its title, the legislative history, the rule
of lenity, the canon against absurdities, and existing caselaw.
I can find no basis for the majority’s holding other than the
personal legislative preferences of its members.
II.
The majority also holds that the district court acted
permissibly in not imposing sanctions on the government for
violating Federal Rule of Criminal Procedure 16. This is error.
-55-
A.
As it does with accepted principles of statutory
interpretation, the en banc majority completely ignores the
framework used by this court in evaluating whether to impose
sanctions for a violation of rule 16. In United States v.
Sarcinelli, 667 F.2d 5, 6-7 (5th Cir. Unit B 1982), we
articulated a four-factor test to determine a proper sanction:
(1) the reasons why disclosure was not made; (2) the amount of
prejudice to the opposing party; (3) the feasibility of curing
such prejudice with a continuance of the trial; and (4) any other
relevant circumstances.17
A brief recounting of facts omitted by the majority is
needed before embarking on the analysis. Cuellar requested a
summary of the government’s expert witnesses that described the
“witness’s opinions, the bases and reasons for those opinions,
and the witness’s qualifications.” FED. R. CRIM. P. 16(a)(1)(G).
The court’s discovery order required a response by a specified
date. Almost three weeks after that deadline, and only two weeks
before trial, the government stated, in a letter, that Nuckles
would testify
17
See also United States v. Katz, 178 F.3d 368, 371 (5th Cir.
1999) (citing United States v. Bentley, 875 F.2d 1114, 1118 (5th
Cir. 1989)).
-56-
concerning the organizational structure of a typical
drug smuggling operation, including, but not limited
to, how drug proceeds are packaged, hidden and
transported; routes of travel; time of day; types and
conditions of vehicles; documents kept by transporters
in their vehicles or on their persons; manner in which
drugs are smuggled into the United States and money is
smuggled out of the United States; and any other
testimony that may help the jury understand this case.
The government provided no further details on the specifics
of the testimony or on Nuckles’s qualifications until it gave
Cuellar a handwritten note in response to his motion to deny the
expert testimony. The note, in its entirety, read, “Rick Nuckles
= 12 years U.S. Customs; 4 years DEA; 7 years state + local, UC
w/ DEA, 100's of drug cases investigated in all capacities.” The
court denied Cuellar’s motion, noting its familiarity with
Nuckles based on its admission of him as an expert on at least
one occasion.
Instead of using the Sarcinelli framework, which it mentions
in a footnote, the en banc majority creates a new test. It first
finds that the government did violate rule 16, then it notes that
“[t]he type of expert testimony offered by Officer Nuckles has
become almost routine.”18 Finally comes the new test: The
refusal to impose sanctions on the government was not improper
after all, according to the majority’s notion, because Cuellar
18
This section conveniently omits any discussion of the
majority’s later finding that Nuckles’s drug courier profiling
testimony was improper and should have been excluded.
-57-
effectively cross-examined Nuckles, so Cuellar’s substantial
rights were not prejudiced.
The two cases cited by the majority for its new test provide
no support. In United States v. Doucette, 979 F.2d 1042 (5th
Cir. 1992), the disputed evidence was made available to defendant
well before trial, and defense counsel did not avail himself of
the opportunity to review it. “For this reason, there can be no
violation of Rule 16 where, as here, the defendant’s lack of
diligence is the sole cause of his failure to obtain evidence
made available by the government.” Id. at 1045. This holding
has no bearing on the present case, where the government, in
blatant and intentional violation of rule 16, provided no timely
opportunity for Cuellar to review fully the expected testimony of
Nuckles.
The other cited authority is United States v. Smith, 354
F.3d 390 (5th Cir. 2003), which dealt with whether one sentence
of the expert’s testimony was beyond his expertise and exceeded
the disclosure that was made in accordance with rule 16. This is
plainly much different from the case before us, where (as the en
banc majority admits) the government has violated rule 16.
Doucette and Smith thus do not form a reasonable basis for
the majority’s new test. Today’s majority opinion creates one
“super factor” that supplants the entire Sarcinelli framework:
-58-
If the defendant effectively cross-examines an expert witness,
any violation of rule 16 by the government in failing to disclose
that witness’s testimony is overlooked.
I wonder whether the majority has considered the risky game
today’s opinion creates for criminal defendants when the gov-
ernment violates rule 16. Defendants whose counsel “burn the
midnight oil” to cobble together a cross-examination strategy
that, while less effective than one that could have been prepared
had the government followed rule 16, still manages to be semi-
effective, now face the prospect of losing the remedy for the
rule 16 violation. On the other hand, the defendant whose
attorney does nothing and mounts an ineffective cross-examination
risks harming his chances at trial but stands a better chance of
an appellate court’s finding that a remedy is needed for the rule
16 violation. These perverse incentives provide further reason
for this court to hew to the Sarcinelli test.
Had the court applied Sarcinelli, and had it done so
properly, it would have found the following: Under the first
factor, the government makes no attempt to explain its failure to
adhere to the discovery order. Under the second, Cuellar was
caused substantial prejudice by the government’s three-week head
start in the preparation of Nuckles, while Cuellar had two weeks
to prepare and little detail about the content of Nuckles’s
-59-
testimony. Third, the district court likely could have cured the
prejudice by granting, as Cuellar requested, a continuance so he
could prepare more fully.
Finally, other factors may come into play. It is here that
the majority should have considered the factor it has chosen to
make dispositive, that despite the violation of rule 16, Cuellar
elicited (the seemingly self-evident) testimony from Nuckles that
some “legal enterprises could have a need to transport United
States currency to Mexico.” This is less than eviscerating
cross-examination testimony, but according to today’s majority,
it is sufficient to excuse the government’s rule 16 violation.
In sum, the government completely flouted the discovery
rules to Cuellar’s detriment but offered no explanation for its
action. The majority finds that, because Cuellar elicited self-
evident testimony on cross-examination, he had sufficient time to
prepare, so no sanction is necessary. This holding creates
perverse incentives: incentives for the government to ignore
well-established discovery rules because it need not fear sanc-
tions, and incentives for the defendant to hold back from mount-
ing an effective defense so he might have a chance to have the
government sanctioned on appeal.
-60-
III.
In summary, Humberto Cuellar likely committed a serious
violation of the United States Code, but not of the section of
which he was convicted. Justice requires that he be tried for a
crime of which a reasonable prosecutor can believe he is actually
guilty. The war on drugs is not an excuse to violate the norms
of fair play and evenhandedness. I call upon the Attorney
General to confess error in this case of prosecutorial excess,
and I respectfully dissent from the majority’s blessing of the
government’s failure to do justice in this case.
-61-
JAMES L. DENNIS, Circuit Judge, dissenting:
I respectfully dissent from the majority opinion for the
reasons assigned in parts I through III of Judge Smith's
dissenting opinion.
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