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Cuellar v. United States
Cuellar V. United States Oral Argument Transcript (html)
Docket No. 06-1456
Oral Argument: Monday, February 25, 2008
Decided: Monday, June 2, 2008

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Transcript: 

Argument of Jerry V. Beard

Chief Justice Roberts: We'll hear argument first today in Case 06-1456, Cuellar versus United States.

Mr. Beard.

Mr. Beard: Thank you, Mr. Chief Justice, and may it please the Court: Section 1956, the money laundering statute, requires an intent to minimize the criminal taint of unlawful proceeds.

But the statute does not criminalize concealing money's existence.

In this case, Mr. Cuellar's conviction should be reversed for two reasons.

First, while the method of the transportation involved may have been designed to conceal, the transportation itself was not.

Secondly, while Cuellar may have in fact concealed money itself, he did not conceal the nature, source, location, ownership or control of the unlawful proceeds.

Chief Justice Roberts: Well, he certainly concealed the location.

They were secreted in the car, under the goat hair and everything else.

The location of the money was certainly concealed.

Mr. Beard: Chief Justice, in the broader sense location was concealed.

The point to be taken here I think is this: An examination of the text itself reveals particular listed attributes, and location numbers among them.

But what this suggests, the requirement that there be a design to conceal or to disguise these particular attributes, necessarily means a plan, if you will, for those... excuse me... for those attributes to be presented either to law enforcement if they intercept the money or inject it into legitimate commerce later.

In other words, they'll be observed later.

Location has independent meaning, but it's also understood within the context of the words that surround it.

All money changes location, whether concealed or not.

Location in this context means more than the location that the money was found in the car.

Justice Breyer: Maybe I should ask you this now because you've probably thought about it and I can't work it out.

I don't see any problem with the word "location".

I thought what you would say is it isn't the transportation in this instance that concealed the location, it's the method of transportation that sealed the location.

Mr. Beard: Yes, Justice--

Justice Breyer: And if you read it that literally, then there is no problem in getting to your interpretation of the statute, or is there?

Because since you didn't advance that argument, I thought maybe there's something I've not seen here.

Mr. Beard: --No, Justice Breyer; you're correct.

There is a huge difference between the method of transportation and the transportation itself.

And in this particular case, the difference is certainly implicated.

What we understand the government to be arguing is that the method of the transportation satisfies the listed attributes.

But if that were the case it would effectively render all transportation of funds necessarily to be money laundering.

Justice Stevens: May I just ask, what do you mean by method of transportation in this case?

I mean, that it was in a car or the fact it was wrapped up in dirty... in a dirty kind of container, and so forth and so on?

Mr. Beard: Justice Stevens, what I'm referring to is certainly that it was in a car, but there was a secret compartment, goat hair was sprinkled around to try to throw off drug detection dogs, and those type of characteristics.

Justice Stevens: But isn't that all just evidence that there was a motive to conceal the ownership?

Mr. Beard: No, I don't think so, Justice Stevens.

What we're looking at here is that the design of the... the fact Mr. Cuellar may or may not have known, for example, who owned... where the money was coming from or who owned it, that doesn't go to the design of the transportation.

The design of the transportation itself is just to get the money to Mexico.

I can say that abstractly, but in this case in particular because we know from the government's evidence that what this was was essentially the last leg of a drug trafficking deal.

We know that this was repayment.

So in this particular case at least, the purpose of this transportation was to get this money back as repayment money.

Justice Ginsburg: If he were a courier bringing the marijuana into the United States what would be the crime and the penalty?

Mr. Beard: Justice, if he was bringing--

Justice Ginsburg: If he was bringing marijuana into the United States instead of returning with the proceeds?

Mr. Beard: --Well, presumably, Your Honor, it would be a drug trafficking crime.

But of course, as I understand your hypothetical, he would possess marijuana at that time.

Justice Ginsburg: But now he possesses money.

And you're not saying this is innocent behavior.

It is criminal behavior, so what is the crime if not money laundering?

Mr. Beard: We have suggested that Mr. Cuellar's, liability, liability or culpability, lie more properly under the bulk cash smuggling statute.

Justice Ginsburg: But that requires knowing that it's illegal to take out more than X amount of money, and there's nothing that indicates that the common courier would know anything about such a provision.

Mr. Beard: Yes, you're correct that it would require inference as opposed to direct evidence.

This is why in our reply brief, we gave an example of where the identical type behavior arose, not in Texas but in Alabama, and in fact the individual pleaded guilty to bulk cash smuggling.

So I suppose my response would be this.

The same weak inferences that supported the money laundering conviction in the government's eyes would be the same inferences that would support the cash smuggling.

Justice Kennedy: If we take it that you concede... I don't want to say that you concede.

If we take it the government has a strong case under the smuggling statute, wouldn't it have an equally strong case under (i) of the statute that we're considering here, which doesn't require concealing or disguising the nature, just to avoid a transportation reporting requirement.

That's the same as the smuggling statute.

Mr. Beard: No, I don't think--

Justice Kennedy: I know the government didn't indict under (ii).

Mr. Beard: --But I don't think it is the same, Your Honor, because the cash smuggling, the bulk cash smuggling statute, speaks to currency and of course this speaks to transactions.

So I think that there is in fact--

Justice Kennedy: You mean as the proceeds of an illegal transaction?

Mr. Beard: --Well, I'm distinguishing between currency and transaction because as I understand it at least transaction might implicate in a banking context, but cash is cash, if you will.

So--

Justice Ginsburg: And it doesn't matter for purposes of the bulk cash statute that it was illegal.

It could be perfectly lawful money.

Mr. Beard: --Yes, Your Honor, absolutely.

That's certainly true.

Chief Justice Roberts: But why... why isn't this transporting to conceal the location or the ownership in this sense?

Suppose you have someone the police suspect of engaging in drug activities.

They know he sold, you know, so much marijuana or whatever and got cash back.

They think it's there, and they're going to investigate it, but this fellow comes in and they transport the proceeds across the border.

Isn't that transportation to conceal the location or the ownership?

Mr. Beard: As I understand it, Mr. Chief Justice, if the police are aware of it and then the flush, if you will, takes the money across, I think that's... that's much closer.

That's--

Chief Justice Roberts: Well, they think it's there, but they're not sure, and they... you know, that would help them make their case, to find out that the guy they think sold the drugs has $80,000.

So they get a search warrant or whatever, and it turns out he doesn't, because it's been transported to conceal the location or ownership.

Mr. Beard: --I would... no, I think that the... if the police were aware, if the police were aware and the kingpin were aware and put in place some type of design, if you will, to flush the money and perhaps to... to Mexico under the circumstances you described, then you would be closer to, to having money laundering liability, although certainly I don't know that the courier necessarily would.

However, I think it's very important to consider that the money laundering statute necessarily contemplates this notion of... of detection or the money resurfacing, if you will.

And the reason I think that's important is because it gives a particular meaning to those listed attributes.

If the police were just... well, in this case, just stumbled upon it, and nothing was... had been done and there was no evidence on the record to suggest that there was going to be anything done in this case other than repayment, money laundering liability is simply not going to arise.

Now, I think that--

Justice Breyer: I still don't see why isn't what the Chief Justice said absolutely right?

If you are transporting this money to get it out of town so the police can't find it, you're transporting it to conceal it.

That falls right within the statute.

Mr. Beard: --I--

Justice Breyer: If you're transporting it simply to pay some courier somewhere else, you're not transporting it to conceal it.

And if in fact the transportation is done in a way that conceals it, that's beside the point because the statute is interested in transporting it in order to conceal it.

Mr. Beard: --I think that--

Justice Breyer: What is wrong with that?

Mr. Beard: --I think what's wrong, Your Honor, is that the... the statute focuses on the transportation or some of the other transfers of transmission and specifically is coupled, if you will, with this notion of... of the attributes themselves.

I don't know that it's... it's simply too broad, in fact, to say that all transportation's will necessarily incur the money laundering liability.

Justice Scalia: I... maybe I don't understand the... I thought he was helping you, but maybe...--

[Laughter]

Were you helping him?

I thought so.

[Laughter]

Justice Ginsburg: It sounds like he was making the distinction that didn't the dissenting judge make between... the dissenting judge says transporting to conceal is no good, but concealing to transport is okay.

Mr. Beard: That... you're correct, Your Honor, and that is, I think, a point to be made.

The... Judge Smith below did try to highlight the fact that if you transport to conceal, then you're beginning to implicate money laundering liability.

Justice Alito: Suppose someone transports money across a border and is recorded surreptitiously on tape explaining exactly why the person did it, and the person says: The reason why I'm transporting this across the border is because I know that when I get it to the destination country, that's a place where people use huge amounts of cash for bank deposits, for purchases; and, therefore the act of transporting it from the United States to the other country will disguise the nature of the cash as drug money.

Would that fall within the statute?

Mr. Beard: No, I don't think so, Justice Alito, and the reason I don't is because that... what you've described implicates potential money spending, this notion that the money is easier spent.

But without more, money spending would not equate to money laundering.

That's--

Justice Alito: Why wouldn't that fit the literal language of the statute?

It's a transportation across the board with the design to conceal the nature, i.e., that it's drug money, of this money?

Mr. Beard: --I'm not sure, Justice, that you've actually concealed the nature.

If the money was going... if the money was dirty and going across dirty, it remained dirty and just happened to be spent.

But--

Justice Souter: Yes, but it doesn't remain dirty simply because it goes to a place in which the appearance of this kind of cash does not have the dirty appearance that it does at home.

Why... why isn't that the correct answer?

Mr. Beard: --I--

Justice Souter: Why doesn't that make it laundering?

Mr. Beard: --Again, I don't know that there has been... as I understood the hypothetical, I don't think that there's been any suggestion of a design to conceal, the why.

You're just taking dirty and you're--

Justice Souter: No, but the design to conceal... maybe I misunderstood the hypo, but I thought the design to conceal was you conceal the dirty character of the money by taking it to a place and using it in that place where use of large amounts of cash, whether for bank deposits or spending in luxury stores, does not have the dirty implication, the dirty appearance that it does in the United States.

So, why doesn't that therefore satisfy the concealment?

Mr. Beard: --I... Justice Souter, I think that the answer to the question is here.

The statute is designed to take... or purposed to take these dirty proceeds, unlawful proceeds, and to cleanse them so as to prevent their injection into streams of legitimate commerce.

What you've described as spending is admittedly spending, but I don't think that the spending that's... that you've contemplated there basically implicates the core concern, if you will.

The money--

Justice Scalia: You don't have any evidence like that here anyway, do we?

Do we know that this was going to "Spendy Land" where everybody has a lot of money?

Did we know that?

Mr. Beard: --Justice Scalia, what we know, because the government's evidence established it, is that the money was being sent back to Mexico to repay--

Justice Scalia: Does everybody have a lot of money in Mexico?

Is that--

Mr. Beard: --Well, I would hazard to say no, of course, but the record--

Justice Alito: Was there... was there evidence about the nature of the Mexican economy?

Mr. Beard: --There was.

There was, Your Honor.

Justice Alito: What was the evidence?

Mr. Beard: I'm sorry?

Justice Alito: What was the evidence?

Mr. Beard: The evidence that you just asked about went to that it was easier to spend money in Mexico.

Justice Alito: Wasn't there an expert who said that Mexico has a cash economy?

Mr. Beard: Yes, yes.

And it... and--

Justice Alito: And what does that mean?

Mr. Beard: --What I take it to mean--

Justice Alito: Does it mean people can spend a lot of cash without raising eyebrows?

Mr. Beard: --Certainly more than here.

That was what I think that the evidence was offered for.

And the same expert, of course offered, you know, established... or the government established through the same expert that the purpose of this particular transportation was to complete the transaction, the drug transaction.

Justice Alito: In your brief, you argue that there has to be a design to create the appearance of legitimate wealth.

Are you drawing back now from that argument?

Mr. Beard: No, and, of course, we are well aware that those words are not found in the statute, nor do we suggest that they were.

But what we have suggested is simply that that's, if you will, shorthand for describing what necessarily occurs if the attributes, the listed attributes, are obfuscated.

That is the cleansing mechanism.

Justice Alito: Well, why would that be so?

Suppose... I mean, just take... modify my hypothetical.

What this person says on the tape is: I'm sending this money across the border because I know that if it... once it gets there, it will be harder to establish my ownership of it.

People will still know that it's drug money perhaps, but they... it will be harder to establish my ownership of it.

Now, would that fall within the statute?

Mr. Beard: Well, at that point, yes, because I think--

Justice Alito: But there wouldn't be an attempt to create the appearance of legitimate wealth there then, would there?

Mr. Beard: --Well, to the extent that the individual who has been taped is contemplating the money's resurfacing, I think that there would be.

It would be not legitimate wealth, though.

And perhaps I need to drive this point home.

It would be less dirty.

In other words, there's not a requirement that the dirty money necessarily be made clean or a description, but that the dirty money be made less dirty.

And that I think is... is what we're talking about.

Justice Scalia: --Does the statutory purpose have to be the only purpose or the principal purpose?

I mean, I could conceive that the principal purpose of this transportation was to give the money back to the fellow who gave the drugs, to pay the provider of the drugs.

I assume that would be the principal purpose.

But what if you know that when the... when the provider of the drugs is paid, he'll be able to spend this cash easily in Mexico, which has a cash economy?

And let's assume that the latter is enough to satisfy the purpose requirement of this statute.

What... what would be the result?

Mr. Beard: If we... well, Justice Scalia, if we--

Justice Scalia: If you assume a primary purpose to pay off the--

Mr. Beard: --Right.

If we assume that the... that the latter, as you just said, satisfies the statute, then you have a conviction.

But we certainly don't assume that, because that implicates money spending, and money spending hasn't... hasn't been held to be money laundering.

Justice Scalia: --Even though that wasn't the real purpose... I mean, the real purpose was to pay off this fellow, who otherwise might come to hurt you.

Mr. Beard: Yes, absolutely.

Justice Scalia: But once you do pay him off, you know that the money is going to be ready spendable.

Mr. Beard: Well, certainly in this case, we don't have any evidence that Mr. Cuellar knew any such thing.

If you were to remove it from the confines of the Cuellar case, I think you... your hypothetical does come closer to implicating liability; but that's simply not what we have here, at least.

Justice Stevens: Now, what you understand the language

"disguise the nature of the proceeds of this specified unlawful activity. "

to mean, does that... is that satisfied by merely proof that it is proceeds of unlawful activity?

Or do you have to tell that... what is the word "nature" talking about?

Mr. Beard: No, Justice Stevens.

It would again, I think, require more.

If all that were required is to show that there was unlawful proceeds--

Justice Stevens: Well, that's what it seems to say.

What I'm asking is: What do you think it means?

Mr. Beard: --Well, what I think it means is that there has to be some... the transportation or what have you has to be purposed, designed, to take the nature and obfuscate it.

And this--

Justice Stevens: But I'm just asking about the word... the meaning of the word "nature".

What is the nature, other than the fact it's proceeds of unlawful activity?

Mr. Beard: --That it would... I think that it would... "nature" is perhaps the first and foremost of the attributes, but I think that it means, that it means dirty, unclean.

Justice Stevens: "Dirty" in some sense other than being proceeds of specified unlawful activity?

Mr. Beard: Oh, okay.

I don't know.

Justice Stevens: I just don't know what that means other than that it is proceeds of unlawful--

Mr. Beard: When I have... when I read the attributes and contemplate--

Justice Stevens: --I'm just talking about the one attribute, "nature".

Mr. Beard: --Right.

Justice Stevens: I'm trying to understand what you think that means.

Mr. Beard: I have thought of it as meaning basically dirty.

Justice Stevens: Proceeds of unlawful activity.

Mr. Beard: Proceeds of unlawful activity are the--

Justice Stevens: It's always dirty.

Mr. Beard: --There may be... well, yes, I see where you're going.

Is there... what is the independent meaning of "nature".

I think that--

Justice Ginsburg: Why isn't it simply to change the nature from being drug money to look like it's apparently innocent?

I mean the change of the nature... the nature going in is it's always dirty.

It's drug money.

And the purpose of the concealment is to get it converted to some different nature, i.e., clean money.

Isn't that what "disguise the nature" means?

Mr. Beard: --I don't... I brook no quarrel with that.

I mean, yes.

I'm just... what I was simply suggesting--

Justice Stevens: But the verb is not "transformed".

The verb is "disguise" or "conceal".

Mr. Beard: --That's true, and the meaning certainly of "conceal" would be to bring it forward with maybe no explanation of the taint, if you will.

And, of course, "disguise" would be to maybe create a false explanation of where the money is--

Justice Kennedy: Was there a reporting requirement for... for this shipment.

If he had gone to the border, would he... well, then, a lot of what you're arguing about isn't very important because they could just indict under (ii).

Mr. Beard: --To avoid a transaction reporting--

Justice Kennedy: To avoid a transaction reporting requirement, and you wouldn't have to go through all this "nature" thing.

Mr. Beard: --Your Honor, as I understand it he would have a currency reporting requirement, had he been going South.

Justice Kennedy: You indicated that there is such a requirement.

Mr. Beard: A currency reporting requirement, yes.

I'm not sure that there is a transaction reporting requirement.

I think that that--

Justice Kennedy: Oh, I see.

Mr. Beard: --may implicate different considerations.

Justice Ginsburg: And if he... if he didn't know about the currency reporting requirement, then he's not guilty under that statute because it requires knowledge.

Mr. Beard: Yes, Your Honor, I understand.

And so where we are left is he may not be guilty under money laundering and perhaps, perhaps not under bulk cash smuggling.

But that in itself does not necessitate a broadly interpreted understanding of the money laundering statute.

Justice Ginsburg: If he's not... if he doesn't fit into either category, then there's no crime?

Mr. Beard: That's a possibility, yes, absolutely.

Chief Justice Roberts: Counsel, can I ask you to go back to Justice Stevens's line of questioning?

If... do you conceal the nature of proceeds if you conceal the proceeds?

Mr. Beard: No, and I think that... Mr. Chief Justice, I think that it's important to understand, for example, that hiding money is not necessarily the same thing as... I mean, concealing money is not necessarily the same thing as concealing the location.

And I think you could make the same type of analysis in the other--

Chief Justice Roberts: Well, that... that doesn't seem to follow.

I understand the argument with "nature".

In other words, you're not concealing the nature; it's just not there.

But when you're hiding it, you are concealing the location.

Mr. Beard: --Yes.

But, again, I think that the term "location", which is understood in the context of the words surrounding it, if I take money and hide it in my--

Chief Justice Roberts: Well, that gets me to a question.

Several times you've referenced the attributes.

Are you saying that the statute would have a different meaning if it just said "location"?

Mr. Beard: --What I'm suggesting, Chief Justice, is that if the... that the statute would have a particularly different meaning from the one that the government wants if the attributes just listed existence of the money.

There is a huge difference between hiding money or hiding the location of the money.

If you just had location by itself, I'd be making the same argument; but there's a huge difference between hiding money or hiding the location.

Chief Justice Roberts: Well, you better explain that a little more for me.

Mr. Beard: All right, then.

If I--

Chief Justice Roberts: Because they seem to me the same.

Mr. Beard: --If I... no.

I think that the... hiding the location suggests that the individual is contemplating the money resurfacing later, either for injection into commerce or for... perhaps if the police discover it, and they're trying... the launderer, if you will, is trying to make sure that the money would survive that subsequent--

Chief Justice Roberts: Okay, so hiding location assumes it's going to come up later.

Mr. Beard: --Yes.

Chief Justice Roberts: And if you just hide the money, you assume he's just going to leave it somewhere and forget about it?

Mr. Beard: No.

No, Mr. Chief Justice.

If you just hide the money, that would encompass just hiding money, for example, in the back yard of your house with... with... or in a tin can or under a mattress or whatever.

It's a much broader... broader concept.

And I think that that's really what is at play here because, to the extent that the government is focusing on the method or... of the concealment here, they're... they're implicating that type of behavior, if you will, and saying it's sufficient to support a money laundering conviction.

Justice Alito: But what if there is a wire transfer to a bank in another country because that bank has bank secrecy laws that will make it impossible to ascertain the location of the money once it is there?

Does that fall within the statute?

Mr. Beard: At this point, no, Justice, because you haven't suggested that there was any type of design, any intent to disguise or conceal.

You've just suggested it went to another place.

If I sent it to an account--

Justice Alito: If that's the purpose.

If the person says, I'm sending this to blank country because they've got bank secrecy laws there that make it impossible to find this money once it gets into their banking system.

Mr. Beard: --No.

Justice Alito: That's not--

Mr. Beard: On those facts, no, I don't think so.

Now, if I were sending money to accounts in the jurisdiction you've described, and perhaps with a little bit more, different names on the accounts or what have you, then I... then I think a different result.

But if I'm just sending from my account here to my account there, then no.

Justice Ginsburg: Would you say the same thing for... if you just put it in a safe deposit box in a bank in the Bahamas?

Mr. Beard: I would make the same... my answer would be the same without more, Your Honor.

Chief Justice Roberts: Well, the "more" is they don't hold it under your name.

They hold it under a numerical account number.

Then that changes everything?

Mr. Beard: It very well may.

At least... I don't know that it changes everything, but it very well may lead to a different result.

But you just modified the hypothetical.

What I'm... what I'm suggesting is that if you're just putting money in a safety deposit box or this account or under the mattress or in the hole in the back yard--

Justice Scalia: Because the police can't find it in that account even if it is still under your name.

In an account here the police would be able to find it.

In an account in the Cayman Islands, they won't be able to.

Isn't that... isn't that transporting it in order to conceal, to conceal it?

Mr. Beard: --Justice, no, I don't think so, and I'll briefly answer and try to come back to you in rebuttal.

But I think that it's important to understand the money laundering statute is not a detection statute.

That's not where the focus of the statute rests.

Mr. Chief Justice, if I can reserve the balance of my time.

Chief Justice Roberts: Thank you, Mr. Beard.

Justice Scalia: I don't understand that, so I hope you will explain it later.

It doesn't mean anything if it's not a detection statute.

Argument of Lisa H. Schertler

Chief Justice Roberts: Ms. Schertler.

Ms Schertler: Mr. Chief Justice, and may it please the Court: The international concealment money laundering statute contains no appearance of legitimate wealth requirement, nor does it demand proof that the illegal proceeds will be cleansed after they cross the United States border.

Petitioner's construction of the statute is not supported by its tests and would defeat its purpose.

What the statute does require is proof beyond a reasonable doubt that the defendant knows that he has illegal proceeds and that he knows that the transportation across the border of those known illegal proceeds is designed in whole or in part to conceal or disguise one, at least one, of the facts in the statute about those proceeds.

The phrase

"designed in whole or in part. "

directs a full examination of the plan, of the way in which the cross border transportation of these known illegal proceeds was planned out.

Justice Alito: Does the word "transportation" mean the act of transportation across the border or the method of transportation?

Ms Schertler: The word "transportation" itself means the carrying of something from one place to another.

The phrase

"designed in whole or in part. "

suggests that one should look at the entire plan, the way that this transportation was conceived or planned out in the mind, which would include, we would submit, the method that was... that was chosen to be used for this transportation, the individual who was designated to conduct this transportation of known illegal proceeds across the United States border, and, yes, reasons for conducting that transportation as well.

But it is not limited, as Petitioner would suggest, to just one fact, that being what's going to happen to the funds after the transportation is over.

Justice Breyer: You go back to Justice Alito's question.

I agree with you that you could read this as including a prohibition against a method of transportation which method is to hide the money.

You could.

But you could also read it the way that the question suggests, to refer only to the transportation.

So you transport it physically in order later to hide it.

Now, the difference between the two is if we accept yours, which is the broader, this statute includes everything that has nothing to do with the common word "money laundering".

Any time you hide something, for whatever reason you hide it, to take it to pay the couriers, you're money laundering.

Any time you run a gambling operation and the people stick the money in the wad of their shoe, they're money laundering.

I mean, why would you think Congress would want that narrow reading when it can be read to focus much more closely on money laundering just by reading it literally for what it says?

Ms Schertler: Your Honor, several responses to that, to that question.

First of all, what's the purpose... if we want to look beyond the words

"designed in whole or in part. "

in the context of the international money laundering statute to try to discern what the purpose was of the statute, the purpose of this statute was to prevent criminals from taking their proceeds abroad where they would be outside the reach of all of these controls that have been set up in the United States in order to detect illegal proceeds and use those proceeds to trace back to the crimes and the criminals that generated them.

Justice Souter: But if that's all they were getting at, they wouldn't have to have this international component at all, because if you totally eliminated the "to or through" requirement and you were able to focus or properly focus solely on the method of the transportation, et cetera, then you would cover not only cases in which the concealment ultimately would take place by crossing a border, but you would pick up cases in which the concealment would take place even within the United States; and that would certainly be in the government's interest.

But if you add, if you say, well, but this is limited by a to or through requirement, then it suggests, it seems to me, as Justice Breyer's question does, that it must... the statute must be getting at what happens when it crosses the border as opposed to the means of crossing.

What's your answer to that?

Ms Schertler: My answer to that, Your Honor, is that that would have... that would defeat the purpose for which this statute was enacted.

The... the premise of this statute was that once illegal proceeds are taken abroad, taken outside of the United States system, we lose control of them, we lose the ability to find them, and we will have no idea--

Justice Souter: But that would be... that would be equally true and an equally appropriate objective without the "to or through" requirement in there.

In other words, you don't have to have the "to or through" requirement in order to give the government a tool for exactly the purpose that you describe.

Ms Schertler: --And there... there could have been drafted a statute that was even broader than this one in that respect.

But the way... the reason that Congress imposed the "to or through" requirement is that it knew... is that that was when law enforcement in the United States would lose the ability to use ordinary investigative methods to find the proceeds of illegal fraud.

Justice Kennedy: Then what you're saying, I suppose, is that the movement of funds, if they're illegal proceeds, outside of the country is a per se concealment?

Ms Schertler: No, Your Honor.

We do not--

Justice Kennedy: Give me an example of when you take money outside of the country that's illegal money--

Ms Schertler: --Yes.

Justice Kennedy: --that's not a concealment?

Ms Schertler: Yes.

Let's say you have a drug dealer who conducts a number of drug transactions on one side of the border, takes his daily take, puts it in his pocket or his wallet and crosses the border into Mexico.

Based on that evidence alone, the government would not be able to show beyond a reasonable doubt that merely taking those illegal proceeds, known illegal proceeds, putting them in your pocket, that that was designed to conceal the location, that there was a plan--

Justice Scalia: He puts it in his shoe, okay.

Because it's a lot, he puts it in his shoe.

Ms Schertler: --That would--

Justice Scalia: That would be enough, wouldn't it?

Ms Schertler: --That would... yes.

Your Honor, that would permit the inference.

Now, of course, ultimately--

Justice Souter: What if he gives it to his brother and says take it across for me, will you?

Ms Schertler: --Well, I don't think that that alone is... is enough, Your Honor.

What the statute asks is can you find--

Justice Souter: If he tells his brother to put it in his shoe?

[Laughter]

Ms Schertler: --That would... that would... that would get close.

Chief Justice Roberts: Why isn't that enough?

If, for example, he's being... he thinks he's being watched by law enforcement because they know he's up to something, but his brother isn't, why isn't that concealing?

Ms Schertler: With that additional evidence, absolutely.

I think there would be a basis for a jury to find beyond a reasonable doubt that that was designed, that that was designed to conceal.

Justice Kennedy: Well then, let me back up.

Then let me add this.

It seems to me that you're saying, as you have to say, that any movement of illegal funds outside the country which is concealed is per se concealing a relevant attribute?

Ms Schertler: We don't go that far, Your Honor.

As I said--

Justice Kennedy: But if you do.

Ms Schertler: --you need to find--

Justice Kennedy: I think you have to go that far to make the case you're making.

Ms Schertler: --No, not at all.

I mean, what... Congress could have said every cross border transportation of illegal proceeds is covered.

And they did not.

What they did was they set up this filter for the ones--

Justice Kennedy: But you're always concealing the control.

You're always concealing the ownership.

You're always concealing the location if it's in your shoe or in the bottom of the car.

Ms Schertler: --I don't... you have... they have to find a design to conceal.

Justice Breyer: He purposely puts it in his shoe, okay.

Ms Schertler: Yes.

Justice Breyer: It's a design.

He knows he's going to do it.

So... and you're saying, I take it, 100 percent of the time that's illegal.

If you're not saying that, I don't understand what you're saying.

Ms Schertler: No--

Justice Breyer: If you are saying that, I don't know why they call this statute "Laundering of Monetary Instruments".

Why didn't they call it "shoe hiding"?

[Laughter]

Justice Scalia: And you're basically confronting face on the dissent here, which drew a distinction between transporting to conceal and concealing to transport.

And all you have here is concealing to transport, and the question is whether that violates the statute.

I agree with Justice Breyer that if this is a statute directed at concealing to transport, it's a funny name for it to think that it's a money laundering statute.

Ms Schertler: --Your Honor, the title of this statute, 1986.

It saw money laundering as the variety of ways in which criminals prevent the detection of their illegal proceeds and thus are able to profit from their crimes.

It covered a wide range of conduct that included converting, yes, illegitimate wealth into legitimate forms through very complex means.

But Congress was also concerned about criminals taking their proceeds across the border surreptitiously--

Justice Ginsburg: Were they concerned that this was a 20-year penalty, not what you're talking about, the person who gets... who is the drug dealer, but all that this evidence shows is that we have a courier.

We don't even know if he knows who put the money in the car.

We don't know if he knows the... who the person is that he's to deliver the money to.

So on your theory, all you have to prove is that this defendant drove a car in which illicit money was hidden in order to get it out of the country.

No grand design.

All he is is a courier.

Ms Schertler: --He needs to know that part of the design, part of the plan of that transportation, was to conceal or disguise--

Justice Ginsburg: That's a... that's a lot of fancy language.

All he knows, in fact, if he's just a courier is that somebody gave him money to take this car in which drug money is hidden across the border.

Ms Schertler: --And the use of that courier also was part of a design to conceal or disguise the ownership and control--

Justice Ginsburg: Not his design.

His design is only... I mean, he's just a drug courier, and I think that's what... that's a problem with your interpretation of the statute.

One can think of the kingpin having this elaborate plan, and when it gets to Mexico it's going to go into this bank and that place.

But here the defendant is simply a courier, and on the government's theory anyone who transports hidden money to get it out of the country, who drives the car, just the driver, is a money launderer.

Ms Schertler: --Justice Ginsburg, the... Congress's purpose here was in getting at exactly this kind of conduct by third parties in particular, because when you use a third party that violates another purpose at which the statute is directed: using third parties to conceal who the true owner in control of the proceeds is.

Justice Souter: I suppose then the brother should be... giving the money to the brother should satisfy the statute.

Ms Schertler: It--

Justice Souter: Because if I'm... if I'm in the drug business and my... my brother is an international social worker or something, I'm certainly going to conceal when I give it to him and he carries it across the border.

Ms Schertler: --Yes, Justice Souter, that would be another example of using a third party so that a... so that one part of the design of that transportation is to conceal the ownership and control of the proceeds.

And in response to Justice Ginsburg's question, Congress also... well, in the sentencing guidelines system now, the guidelines takes account of whether you have the individual who is also engaged in the underlying offense or whether you have a third party who had not been involved in the underlying offense.

But no... no matter how you see it, this was precisely the conduct that Congress is getting at.

It saw that the only way to... to get at crime... one way that was very important to it was to get at the money and in order to get at the money you need to be able to counteract the ways in which the criminals would prevent law enforcement from getting at the money.

Justice Alito: Suppose the person who set all this up lives in Mexico and the sole intent of that person was to bring the money back to him in the place where he lives?

That would... would that be money laundering by him, to start out with?

Ms Schertler: If he had designed this transportation, yes, Your Honor, because the whole... the design of this transportation was to conceal or disguise all five of the attributes of these illegal proceeds.

Justice Alito: Isn't that a question of... isn't that a question of his intent?

Ms Schertler: I--

Justice Alito: It's not the effect of the design, is it?

It's the intent of the design.

Ms Schertler: --It... it is... what was... what was the plan?

What was the conception?

What decisions were made about why and how we get these proceeds from point A to point B.

Justice Scalia: Everybody knows he's a drug dealer, back in Juarez or wherever he lives in Mexico.

Ms Schertler: But by--

Justice Scalia: He's famous in town.

He's a well respected man because he's a big drug dealer.

And he has just arranged get the money delivered to him so that he can spend it.

What... what's concealing there?

Ms Schertler: --And he's arranged it in a way, if we're assuming the transportation here, so that his ownership and control of those proceeds will be disguised--

Justice Scalia: It won't be disguised.

Ms Schertler: --during the course of the transportation by saying, I'm going to select a third party.

Chief Justice Roberts: During the course of the transportation.

That is not what you say in your brief.

I'm looking at page 41 and what you say is:

"If no independent evidence establishes that concealment or disguising of the pertinent attribute of the proceeds would occur at the point of destination, then a factfinder would lack a reasonable basis for inferring that the transportation was designed to conceal or disguise. "

In other words, in the hypothetical Justice Scalia just gave... in other words everybody knows he's a drug dealer, he spends the money... there is no concealment or disguising the pertinent attribute at the point of destination.

Ms Schertler: That... the sentence, Mr. Chief Justice, that you just read is the last in a series of "if's" that we lay out in our brief, where we... where we assert that at any point in the transportation a jury could find evidence of a design to conceal or disguise.

And that last sentence says if they haven't found any evidence concerning the means and the method and the person used for the act of cross border transportation, and if in addition there was no evidence of what would occur at the point of destination, then there would be no evidence.

Chief Justice Roberts: So there is no money laundering if they conceal the proceeds in a suitcase that's in the trunk of the car?

Is that enough?

Ms Schertler: Well, that would--

Chief Justice Roberts: Is that concealing the money?

Ms Schertler: --If we're talking about just the attribute of location, use of a suitcase I would say provides some evidence that there was a design to conceal the location of those illegal proceeds during... as part of this cross border transportation.

Chief Justice Roberts: Does use of a suitcase provide that evidence?

Ms Schertler: I think it would provide basis for a jury to make--

Chief Justice Roberts: When I use a suitcase I'm using it to carry my clothes, not to conceal them.

Ms Schertler: --And if the jury were presented with testimony that that was the design... that the only design, the only purpose, the only plan in using that suitcase was to use it to secure money for travel, then we would not have met our burden, but based solely on the circumstances.

Justice Kennedy: Well, your answer to Justice Scalia's hypothetical is still not clear to me.

It... it seems to me your answer should be yes, because he's concealing the ownership as of the time he goes across the border, which brings me to my earlier question, if once it's concealed, the statute is always... is always valid.

Then you indicated that oh, well, what happens at the destination is very important.

Then we had Justice Scalia's hypothetical.

I'm not sure where you came out on that.

Ms Schertler: Oh, our... let me... let me be clear.

I think even if one were to hypothesize that there would be no effort whatsoever to conceal the money at the point of destination, but a jury could find that the transportation itself was designed in other respects... in its method, in its means... to conceal or disguise an attribute of the proceeds, that would be enough to find that it was designed in whole or in part, in any part--

Justice Kennedy: So Concealment, concealment during the transportation is always a concealment of an attribute under the statute.

That has to be your position.

Ms Schertler: --Concealment... yes.

The only exception that we make would be in the Chief Justice's example, if the jury were to find that there was no design to conceal the location, for instance, to prevent its discovery; it was only... my only design was to secure this for transport, like I put my money in my wallet to do that.

Justice Stevens: May I ask you a broader question, forgetting the text of the statute for just a minute, because the text is extremely broad.

Do you think the question whether there's an attempt to create an appearance of legitimate wealth has anything to do with the analysis?

The question presented is whether there must be such a--

Ms Schertler: The question presented--

Justice Stevens: --And you're arguing that's totally irrelevant and that... and also that that familiar title, "Money Laundering", totally irrelevant?

Ms Schertler: --Your Honor, we disagree that there is any... there is no appearance of legitimate wealth requirement in the statute.

This--

Justice Stevens: There is no... okay.

Ms Schertler: --This statute--

Justice Stevens: And the term "laundering" really should be totally ignored?

Ms Schertler: --The term "laundering" under... when it is understood to mean the way Congress meant it and the way Congress was viewing this conduct is much broader than Petitioner suggests.

Laundering is the many ways in which criminals prevent detection of their proceeds.

It would include and Congress certainly had evidence before it--

Justice Stevens: I understand you could find a violation of it, but what I'm really asking you: Is this just a total wild goose chase?

We shouldn't even consider laundering at all?

As I understand your argument, it's totally irrelevant.

Ms Schertler: --The title of the statute says... but the terms of the statute are what matter here.

Justice Stevens: So it is irrelevant?

Ms Schertler: The terms are plain.

But even if you were to look at the term "laundering", it would not support Petitioner's argument that that has a narrow meaning that includes only conduct that creates an appearance of legitimate wealth.

Chief Justice Roberts: So if this fellow were driving to Canada would that be a different case, because Canada does not have the sort of cash economy we've heard about in Mexico?

Ms Schertler: If the method of transportation were exactly the same, it would make no difference, Your Honor.

In this case, this... this transportation method was designed, a jury could find beyond a reasonable doubt, to conceal or disguise the ownership and control of the proceeds through the third party, and if that were the case and they were going to Mexico it would be the same.

The nature and the location of the proceeds through the use of this secret compartment and the goat hair to discuss the scent of the proceeds from the drug detection dog.

Chief Justice Roberts: So, what if the fellow says: You know, there are dangerous roads between here and Mexico.

I'm hiding the money so that if, you know, a gang comes up they don't find it.

And you say: No, we think you're hiding it because it's illegal proceeds?

Is that enough to get to the jury?

Ms Schertler: I think that's enough to get to the jury, and that would be a jury question, Your Honor, yes.

Justice Scalia: Just to be clear, you affirmatively say that concealing to transport is enough, right?

Ms Schertler: Yes, Your Honor.

It's... that is enough.

Concealing to transport when the jury... when it is part of the design of the transportation to conceal the location, nature, source, ownership, or control, any single one of those things.

And all of those are in here.

Justice Ginsburg: Why do you make distinctions between methods of concealment?

And if the design is to get the money out of the country, why should it matter whether you put it in a travel bag, you put it in the glove compartment, you put it in your wallet, or you go through this elaborate disguise that we see here?

What... if what's important is getting it beyond the border beyond the reach of law enforcement in the United States, why should it make a difference how carefully it is concealed?

Ms Schertler: That need not make a difference if there is evidence before the jury, if there is evidence that the ultimate design of the transportation is to conceal or disguise the proceeds at the point of destination.

Justice Kennedy: Well, then your only defense is to go across the border and before you go across you put all the money in your arms so the people can see it?

That's the way you do it?

[Laughter]

Other than that?

Ms Schertler: In that situation, there would no basis to find concealment or disguise of location.

Now, some of the other attributes may be at issue if a third party is conducting that transportation, but location from the method alone.

So the jury would need information about, well, what is the design, what is the purpose of this cross border transportation?

They could still find that the necessary design to conceal or disguise is satisfied by evidence that the whole purpose here is to get it to Mexico where it will be turned into legitimate wealth, for instance.

Justice Ginsburg: That's transporting to conceal.

Ms Schertler: That's... and I, for one--

Justice Ginsburg: But you're saying this statute covers both?

Ms Schertler: --It covers both, Your Honor.

It asks broadly what was this... how was this transportation designed and planned out in whole or in part?

In any part, was it designed to conceal or disguise?

And that would encompass all of the stages that we are... that we are discussing.

Justice Ginsburg: In your brief, you said the bulk cash statute would not apply to a courier.

Do you still take that position, that the government's choice is to indict for money laundering or nothing?

Ms Schertler: The bulk cash... well, the bulk... in this case, there's no evidence in this record that a bulk cash smuggling statute charge would have been viable because there's no evidence in this record that this defendant knew of a currency reporting requirement and intended to evade it.

Petitioner's argument that the bulk cash smuggling statute shows that the conduct here was not intended to be covered by the money laundering statute is incorrect for the very reason that Justice Kennedy has identified.

The bulk cash smuggling statute could not have filled a gap in the money laundering statute for the conduct here because it has always contained a provision that covers the transportation of known illegal proceeds across the border to evade a... reporting requirements.

Justice Scalia: There's no principle that all criminal statutes have to cover every... every bad act.

Maybe Congress has left a gap.

I'm willing to entertain the possibility that this individual, obviously doing something very bad, doesn't... falls between the two stools.

He is neither guilty under the taking currency out of the country statute because he didn't know of the existence of the statute, and he's not guilty under one because he was not transporting to conceal but was concealing to transport.

And so there's a gap.

The Justice Department can certainly get that gap filled readily enough.

I don't know why we should torture either one of the statutes to close it.

Ms Schertler: The plain reading of the money laundering statute covers this conduct, and Congress specifically had this conduct in mind.

As Senator Biden said in questioning... and he became one of the co sponsors... questioning a witness about this: Isn't it the truth that if we... if we strengthen all our domestic controls against money laundering, aren't the criminals going to resort to physically transporting their cash out of the United States?

This is a--

Chief Justice Roberts: How many co sponsors were there?

Ms Schertler: --I don't know, Your Honor.

This is part of the core conduct at which this statute was directed, this international concealment money laundering statute.

Justice Breyer: How does that show what you want it to show?

I mean, what I just heard you say is that Senator Biden said if we make it very tough to launder money in the United States, then criminals will send their money abroad to be laundered.

Ms Schertler: And--

Justice Breyer: They'll transport it abroad in order to launder it.

How does that help you?

Ms Schertler: --They will resort to taking their money physically out of the United States.

And the Senate report says that this provision was designed to halt this flow.

Justice Breyer: In order to launder it.

Were they not talking about money laundering?

Ms Schertler: If the premise--

Justice Breyer: Or were they not talking about it?

I'm just going back... I didn't read Senator Biden's statement, so I'm just curious.

Ms Schertler: --This provision was directed at preventing the illegal moneys from leaving the country.

It would have made no sense for Congress, having understood that when money leaves the United States we have little if any ability to know what happens to it, to require in the statute proof beyond a reasonable doubt of what would happen to the money once it--

Justice Scalia: If you're trying to prevent the money--

Justice Kennedy: But you, in response to one of my hypotheticals, said that it would be relevant in some cases to show that it was designed to create the appearance of legitimate wealth.

So you put that back in--

Ms Schertler: --If--

Justice Kennedy: --So you put that back into play.

Ms Schertler: --If we have that evidence, yes, Your Honor.

But to take Petitioner's position that it would be necessary evidence in every case in which to prevail under this statute to know of future plans to launder abroad, when the premise of this statute is that when the money leaves the country we cannot know what happens to it, makes no sense.

Justice Scalia: --What if... if that's what they're concerned about, taking the money out of the country, why do they have the concealment requirement?

They could have just said, you know, if you take dirty money out of the country you're guilty.

Ms Schertler: They--

Justice Scalia: They didn't say that.

They have a concealment... I can't understand why, if the money is hidden during the transportation, it's any worse than when the money is not hidden during the transportation.

It isn't... it isn't the hiding during the transportation they're concerned about.

The statute doesn't make any sense that way.

Ms Schertler: --I think that it does, Your Honor.

The Court... the Congress certainly could have written it in the broad way that you've suggested.

It's not unlike the way that they wrote section 1957, which covers broadly all transactions in illegal money.

They chose to not cover everything and to cover cross border transportation's where there's evidence of some intent on the part of that individual to conceal or disguise.

And when you think about it, they had set up regulatory provisions like the transaction reporting requirement when there's no conceal or disguise.

There were other controls in place as, say, the first line of defense against money laundering to say, $10,000 or more is leaving the country, we're going to know about it because we have reporting requirements.

Here the Senate report says that they made the decision to require evidence of concealment.

"Evidence of concealment of a crime. "

is what the report says.

And any time one of these attributes of illegal proceeds is being concealed or disguised, that is concealing a crime in a way that impairs law enforcement from finding those proceeds.

Justice Stevens: May I ask... may I ask this question?

If the statute did include... and I know you think it does not... a requirement of trying to create an appearance of legitimate wealth, you would lose?

In this case.

Ms Schertler: I don't think so, Your Honor, and I would... I would go back to the evidence that Justice Alito has pointed out that is in this record, that there's evidence in this record that... that the... by taking the funds to Mexico, they would be able to be used in a way that would not raise suspicion.

Justice Stevens: Well, there's also, consistent with the evidence, they want to pay the drug dealer for the drugs.

And then a jury... you can't say it's clear beyond a reasonable doubt that that was not what it was going on.

Ms Schertler: There was... I would not... I would not disagree with that.

I think that we do... I see that my red light is on.

Chief Justice Roberts: Why don't you finish your answer?

Ms Schertler: Your Honor, there was... there was evidence in this case that the proceeds were removed... this is expert testimony... removed from the United States to conceal so as not to go through reporting requirements, so that the money would not be identified to U.S. law enforcement.

We believe the jury could also infer that further efforts to conceal and disguise those proceeds would occur at the point of destination.

Thank you, Your Honor.

Rebuttal of Jerry V. Beard

Chief Justice Roberts: Thank you, Ms. Schertler.

Mr. Beard, you have four minutes remaining.

Mr. Beard: Justice Scalia, when I left we were discussing--

Justice Scalia: I forget what it was that I didn't understand.

[Laughter]

Mr. Beard: --Happily I've been thinking about it.

Disruption versus detection I had told you, told the Court that this was not a detection statute as much as it is a disruption statute.

I think it is important for the Court to recall that the very broad interpretations that the government advances today are essentially the very broad interpretations that the Congress rejected explicitly 20 years ago.

The Congress rejected the notion that the transportation of illicit funds in and of itself created money laundering liability.

And we've discussed that.

I think it's important, Justice Scalia, in particular, in response to your question to bring this up, because the Congress recognized that detection would be harder in rejecting that type of legislation, but rejected that they did.

The Congress has also shown itself capable of... of... in the 1957 context of taking transactions involving unlawful proceeds and making those per se illegal.

They could have easily done the same thing in the transportation context if they had wanted to, but instead they were looking at the separate behavior that comprises money laundering.

I mean, it is the notion that you're taking money somewhere else and you're doing something else and it gives rise to separate liability.

I think the true harm in the government's interpretation, it basically conflates liability for money laundering with the underlying offense, because all of the underlying offenses involve concealment.

Justice Stevens: May I ask the same basic question of you?

Do you think that this line,

"create an appearance of legitimate wealth. "

is an essential element of the offense?

Mr. Beard: It is not an element, Justice Stevens.

As I said, so--

Justice Stevens: So then your question presented raised that question, you're walking away from that question?

Mr. Beard: --We have spoken in the question presented in that broad term, because we think that that language encapsulates what's taking place.

Justice Stevens: It is not an essential element of the offense?

Mr. Beard: It's not an element.

But what is an essential element is the need for the transportation... the transportation to be designed to accomplish the same thing, to obfuscate those attributes.

It's... and that's... and therein is the reason why--

Justice Alito: --the same thing, appearance of legitimate wealth goes to one of the attributes, the nature of what's being transported.

It doesn't go to all the other attributes.

Mr. Beard: --The Congress had identified, Justice Alito, those particular attributes as being key to allowing the launderer to inject the money back into commerce.

It may be that nature is implicated more often, but the Congress chose to list the others because they felt that those were the particular attributes that, broadly speaking, allowed for the laundering process.

This notion of--

Justice Kennedy: Suppose the evidence is clear that he knew he was taking it across the border and it was to pay the drug dealer?

Would that suffice?

Mr. Beard: --For liability under the statute, Justice?

No, because the purpose there was not to obscure the attributes.

It is simply repayment.

It's the final leg, if you will--

Justice Kennedy: Well, but... no, no.

He conceals it, in order to pay the drug dealer.

Mr. Beard: --Yes.

I'm saying that... I may have misunderstood.

If you are saying Mr. Cuellar were to know he was paying the drug dealer?

Justice Kennedy: Yes.

Mr. Beard: That wouldn't give rise to laundering, because all you have there basically is money spending.

It's the conduct of the underlying--

Justice Kennedy: It's concealing who owns and controls.

Mr. Beard: --No, I don't think so.

I think what you would have under these circumstances is merely the final step, if you will, in the underlying unlawful activity.

Justice Scalia: Mr. Beard, can't you give us something we can get this guy on?

[Laughter]

Mr. Beard: I'm not comfortable doing that.

Justice Scalia: He's carrying dirty money.

It even smells of drugs.

[Laughter]

Can't we get him as an accessory to drug dealing or something?

You say he has to walk?

Mr. Beard: Well, Justice, I'm not uncomfortable with the notion of him walking, because I'm not uncomfortable with the notion you brought up earlier with that there may indeed be a gap.

If there is a gap, then there's a remedy for that.

But I think that if--

Justice Ginsburg: The point... the point about aiding and abetting something, this money reeks of marijuana, and that was very puzzling to me.

Why this is the standard operating procedure to take this money and wrap it in containers that had contained the drug.

So when the police find it, they know it's drug money.

Mr. Beard: --Justice, I know that the... initially the way this went down was the money that was in his pocket.

That's what triggered the... that's what they said smelled like raw marijuana.

And then eventually, they found the drug money.

And I can't tell you why they did it this way.

But I think that your question underscores they were concerned not with obfuscating any attributes, obviously, they were concerned with getting this money back to repay the person who had sent the drugs north under the government's theory.

Chief Justice Roberts: Thank you, Mr. Beard.

The case is submitted.


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