### The Hon. Scott O. Wright, Jr., United States District Judge 1 

### for the Western District of Mi ssouri, acting on the recommendation of the Hon. William A. Knox, United States Magistrate Judge for the Western District of Missouri.



# United States Court of Appeals

FOR THE EIGHTH CIRCUIT

_____________ No. 96-3080WM

_____________ United States of America, * * Appellant, * * On Appeal from the United v. * States District Court * for the Western District * of Missouri. Vickie S. Cabrales, * * Appellee. *

___________ Submitted: January 17, 1997 Filed: March 24, 1997

___________ Before RICHARD S. ARNOLD, Chief Judge, ROSS and BEAM, Circuit Judges.

___________ RICHARD S. ARNOLD, Chief Judge.
Vickie Ca brales was charged with one count of conspiring to launder moneyand two counts of money laundering in the District Court for th e Western District of Missouri. The District Court 1

### The Court did not dismiss Count I, the conspiracy charge , 2 

### because overt acts did occur in Missouri. Venue is proper in a conspiracycase in any jurisdiction in which an overt act i n furthe rance of the conspiracy was committed by any of th e conspirators. See United States v. Bascope-Zurita , 68 F.3d 1057, 1062 (8th Cir. 1995), cert. denied , 116 S. Ct. 741 (1996). Count I is not part of this appeal. It remains pending in the District Court. -2- dismissed the two cou nts of money laundering as improperly venued in that Court. The Government appeals the dismissal. We affirm.

I.
Vickie Cabrales was charged with the following three offenses : conspir acyto avoid a transaction-reporting requirement (Count I), 1 8 U.S.C. §§ 371, 1956(a)(1)(B)(ii); conducting a financial transaction t o avoi d a transaction-reporting requirement (Count II), 18 U.S.C
. § 1956(a)(1)(B)(ii); and engaging in a monetary transaction in criminally derived property of a value greater than $10,000 (Count III), 18 U.S.C
. § 1957.
The Distr ict Court dismissed Counts II and III as improperly venued in M issouri, reasoning that none of the acts which constitutes mone y laundering occurred in Missouri. The Government does not disp ute that the 2 acts which form the e lements of those offenses occurred outside Missouri. It maintains, however, that the criminal offenses which necessitated the money laundering did occur in Missouri, and that venue was therefore prope r in the Western District of Missouri under a "con tinuing offense" analysis.

II.
The mone y-laundering charges are based on a series of deposits an d withdrawals made by Cabrales at a Florida bank. The money

### Rule 18 pro vides, in pertinent part, that "prosecution shall 3 

### be had in a district in which the offense was committed." Rule 18 echoes the command of Article III of the Constitution, whic h requi res that, "Trial shall be held in the State where the sai d Crimes shall have been committed," and of the Sixth Amendment , whichrequires trial "by an impartial jury of the State an d district wherein the crime shall have been committed." U.S. Const . art. III, § 2, cl. 3 & amend. VI. -3- Cabrales deposited, and later withdrew, was traceable to illegal drug sale s whichoccurred in Missouri. The government asserts that since the dru g conspiracy operated in Missouri, and Cabrales was "laundering" its profits , she can be tried in Missouri.

BothRule 18 of the Federal Rules of Criminal Procedure and th e Constituti on require that a person be tried for an offense where tha t offens e is committed. “[T]he locus delicti must be determined from th e 3 nature of the crime alleged and the location of the act or act s constituting it.” United States v. Anderson , 328 U.S. 699, 703 (1945).
The acts constit uting money laundering for the purposes of this case are outlined in §§ 1956(a)(1) and 1957, which make it a crime to:

knowing[ly] . . . conduct[] or attempt[] to conduct . . . a financial transaction which . . . involves the proceeds of specified unlawful activity . .
. knowin g that the transaction is designed in whol e or in p art . . . to avoid a transaction reportin g requirement under State or Federal law,

and to “knowingly engage[] or attempt[] to engage in a monetary transactio n in criminally derived property that is of a valu e greater than $10,000 and is derived from specified unlawful activity.”

### -4- Under 1 8 U.S.C. § 3237(a), “continuing offenses” are deeme d committ ed, and venue over those offenses is therefore proper, “in an y district in which such offense was begun, contin ued, or completed.” As is clear fro m the statutes quoted above, Cabrales was not accused of a “conti nuing offense.” She was charged with money laundering, fo r transactions which began, continued, and were completed only in Florida. That th e money came from Missouri is of no moment in this case, becaus e Cabrales dealt with i t only in Florida. Counts II and III include no act committed by Cabrales in Missouri. Nor does the government charge tha t Cabrales transported the money from Missouri to Florida. Whether tha t would make a difference we need not decide in the present case.

III.
The gover nment cites several cases which it believes should dictate
a different result. For various reasons, they do not. But because some contain language which, if applied to Cabrales’s case, might conflict with the result we now reach, we discuss them briefly.

In Un ited States v. Beddow , 957 F.2d 1330 (6th Cir. 1992), fo r example, money laundering was held cognizable under § 3237(a) as a continuing offense. The Court in Beddow held there was a money- launderin g “scheme” sufficient to confer venue on a different district from that in which the actual tran sactions took place. Id. at 1336. Beddow , however, presented different f acts than the instant case. The defendant in Beddow was convicted of the crimes which produced the f unds which were laundered, and h ad acquired those funds in one district and transported them int o another. While some of the language in that cas e might be broad enough to cover the fact situation before us, we believe the facts that the

### The language to which we refer is the following: 4


### Un der section 3237(a) venue is proper in an y district where any part of the mone y laundering scheme occurred. In the presen t case, it is clear that the funds involved i n both money laundering counts were acquired by selling drugs in the Western District o f Michigan. Also, Count 4 involved travel that originated in Traverse City. We conclude that these acts were essential elements of th e moneylaundering offenses and that they wer e sufficient to confer venue under sectio n 3237(a). 957 F.2d 1336. United States v. Saxcites Beddowfor the proposition tha t venue over money-laundering charges is proper in a given district if the underlying criminal conduct (which produced the funds ) occurred in that district. 39 F.3d 1380, 1390 (7th Cir. 199 4). We note that the holding in Beddowappears to have depended on th e com binationof two facts: the underlying conduct occurred in th e same district where the defendant began transportation of th e funds which we re to be laundered. Were the location of the underlyin g criminal conduct, standing alone, sufficient to confer venue on a di strict, the money-laundering charges against Cabrales would b e appropriately venued in Missou ri. To the extent Saxwould produce such a holding, we respectfully disagree. -5- money-laundering conduct in Beddowextended over more than one district, and that the defendant was convicted of involvement in each step of that conduc t, distinguish the case. That distinction explains why mone y laundering might have been a continuing offense in that case and not in th e one now before us. 4
The government also cites United Sta tes v. Hernando Ospina , 798 F.2d 1570 (11th Cir. 1986). In that case, two defendants were charged wit h concealing material facts from the IRS. The defendants argued venue was improp er in the Southern District of Florida because the “concealment ” resulted from the non-filing of currency transaction reports in Washington , D.C. The Ospina court

### -6-

rejected that argumen t, noting that, “it is undisputed that the scheme to conceal was formulated and virtually all the affirmative acts comprising that scheme were carried out in the Southern Dis trict of Florida.” Id. at 157 7. While the non-filing of the reports may have been the ultimat e occurr ence which kept information from reaching the IRS, the statut e cri minalizes the entire scheme. 18 U.S.C. § 1001, under which th e defendants in Ospina were charged, makes it a crime to “knowingly an d willfully . . . conce al[] or cover[] up by any trick, scheme, or device a material fact” in any matter within the jurisdiction of a federal agency. The statute explicitly criminalizes the scheme itself. The acts by th e defendants in Florida were thus directly prohibited by the statute, and th e crime was “committed” at least partly in Florida. Since no acts prohibite d by18 U.S.C. §§ 1956(a)(1)(B)(ii) and 1957 were committed by Cabrales in Missouri, Ospina is of no help to the government in the instant case. Finally, in United States v. Chandle r , 66 F.3d 1460 (8th Cir. 1995),
a panel o f our Court declined to reverse a conviction for accepting an d receiving a gratuity in connection with the maki ng of a loan because venue in the Eastern District of Arkansas was improper. In so doing, we affirme d the dis trict court’s refusal to sever those charges because they wer e “inextricablylinked” to the other crimes with which the defendant wa s charged.

In Chandl er , however, the trial jury found that venue was proper in the Eastern District of Arkansas. The location of the crime was disputed, and was therefore before the jury. We could have disturbed that verdict only if no reasonable jury could have reached th e conclusion that one did. We hel d that the jury could reasonably have found that the crime wa s committed at least partly in the Eastern District of Arkansas. There is no factual ambiguity

### -7-

in the case now before us. Nowhere does the government allege that an y part of the money-laundering transactions in question occurred outsid e Florida, and there is certainly no jury finding that they did.

Other cas es provide better guidance for the case at bar. In United Sta tes v. Swann , 441 F.2d 1053 (D.C. Cir. 1971), the Court reversed a district court holdin g that venue over a jury-tampering charge was proper inthe District of Columbia when the jury was empaneled in a District of Columbia court but th e tampering had occurred in Maryland. In reversing, the Court declined to view the crime as a “continuing offense,” focusing its attention on the specific facts alleged and the crime charged:

[t] he appellant’s offense was not begun in on e district and completed in another, or committed in mor e than one district. The offense condemned b y th e statute and charged in the indictment wa s begun, carried out and completed in the State o f Maryland when the appellant “did injure the person of said Pauline Hawkins . . ..”

Id. at 1055.
We have adopted t hat approach in prior cases in this circuit as well. In United States v. Brakke , 934 F.2d 174 (8th Ci r. 1991), defendant Brakke was accused of obstruction of justice for failing to comply with tw o federal marshals’ requests that he pull over his vehicle and get out of it
so it could be seized. The marshals began following Brakke in Nort h Dakota, but did not signal him to stop until after he had crossed the stat e line into Minnesota. Consequently, Brakke did not refuse to comply until he was in Minnesota. The District Court for the District of North Dakota

### -8-

dismissed the charge for lack of venue, and our Court affirmed, holding:

After reviewing the record . . . we can discern no su pport for the Government’s contention tha t Bra kke’s obstructive conduct extended over tw o districts. . . . The only acts which formed th e basis for the obstruction charge, Brakke’s passive resistance to the marshalls ’ [sic] requests that he vac ate his vehicle, occurred after Brakke ha d crossed into Minnesota. Ac cordingly, we agree with the district court’s ruling that venue for th e obstruction charges does no t lie in the District of North Dakota.
Id. at 176-77 (footnote omitted).

IV. The only acts which formed the basis for the money-laundering c harges in the instant case consisted of banking transactions which Cabrale s executed only in Flor ida. Under these facts and the analytical framework established in Brakke , the District Court correctly dismissed Counts II an d III as improperly venued in Missouri. Accordingly, we affirm.
A true copy.

Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.