Making up criminal offenses
Stymied in their efforts to stop the drug trade and other “sinful” activities, Congress in 1986 enacted laws that enabled federal police to seize a suspect’s homes, cars, boats and cash before he’d been convicted of anything, under the newly thought-up prohibition against “money laundering.”
The law makes it a crime to transport money across a border with the intent to conceal the source, ownership or control of the funds.
This is a dangerous law even when used as intended. But no one familiar with federal law enforcement will be surprised to learn the G-men are now using the “money laundering” statute in cases never contemplated by Congress.
In October, the U.S. Supreme Court heard an appeal in the case of Efrain Santos, convicted of running an illegal lottery, or bolita, in northwest Indiana.
Santos was sentenced to five years in prison on the gambling offense — and an additional 171/2 years for “money laundering,” based on the government’s contention that he was “laundering” his illegal proceeds by using them to compensate his employees and pay off the winning bettors.
In a similar case heard by the high court Monday, officers stopped Humberto Cuellar in Schleicher County, Texas, about a hundred miles from Mexico after his car swerved onto the shoulder of the road. Authorities subsequently found more than $80,000 in cash in a secret compartment in the car. Cuellar was convicted of international money laundering and sentenced to 61/2 years in prison.
In Washington on Monday, justices seemed rightly skeptical of the assertion that merely hiding cash in a car headed for Mexico — absent evidence that the suspect sold drugs, managed a prostitution ring or anything else nefarious — constitutes international money laundering, which carries a maximum penalty of 20 years in prison.
“No grand design” was shown, said Justice Ruth Bader Ginsburg, echoing the skepticism of Chief Justice John Roberts and Justices Anthony Kennedy, Stephen Breyer and David Souter. “All he is is a courier.”
In the October case of the illegal Indiana lottery, it was Justice Antonin Scalia who took a turn chiding a Justice Department lawyer for stretching the purpose of the money-laundering law. “Come on,” Justice Scalia said. “Nobody runs a gambling operation without paying off the winners. It’s not going to last very long. To make the paying off of the winners a separate crime from running the gambling operation seems to me quite extraordinary.”
The justices are right to be skeptical. The government brought money laundering cases against 1,347 people in 2006, according to the Administrative Office of the U.S. Courts.
Are we to believe they laid hands on 1,300 major drug kingpins in one year? Big-time “Godfathers” such as Efrain Santos and Humberto Cuellar?
It’s all too easy to say, like Mark Twain’s Aunt Polly, “Well, they probably committed other crimes when we weren’t looking.”
Cynical commentators used to refer to such police-invented crimes as “driving while black.” The court should take firm steps, right now, to halt this pattern of overcharging, often designed to make the loaded-up prison sentence look so onerous that even innocent defendants may be tempted to “take the deal” in hopes of getting out before their small children are grown.
It is not a crime to “possess a lot of cash while Hispanic.” And those who will not stand up and say so, right now, may live to echo Pastor Martin Niemoller, who recalled that “There was no one left to object, when they finally came for me.”