U.S. v. Griffith, 95-2244

• Decision Date: 29 May 1996
• Docket Number: No. 95-2244,95-2244
• Citation: 85 F.3d 284
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Daniel L. GRIFFITH, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 284

85 F.3d 284

64 USLW 2815

UNITED STATES of America, Plaintiff-Appellee, v. Daniel L. GRIFFITH, Defendant-Appellant.

No. 95-2244.

United States Court of Appeals Seventh Circuit.

Argued Jan. 17, 1996.

Decided May 29, 1996.

Norman R. Smith, Stephen Clark (argued), W. Charles Grace, Office of the U.S. Atty., Criminal Division, Fairview Heights, IL, for Plaintiff-Appellee.

Lawrence J. Fleming, St. Louis, for Defendant-Appellant.

Before POSNER, Chief Judge, and CUDAHY, and FLAUM, Circuit Judges.

CUDAHY, Circuit Judge.

For more than ten years, Defendant Daniel Griffith worked in a managerial capacity for the Hal Lowrie entertainment organization. Lowrie's organization ran a large network of nightclubs, which included country- western clubs, topless nightclubs and, beginning in 1985, brothels ("massage parlors"). In 1993, a federal grand jury returned indictments against several persons involved with the Lowrie enterprise. In a three-count indictment, Griffith was charged with violating the RICO statute (Racketeering Influenced and Corrupt Organizations), 18 U.S.C. § 1962(c), conspiracy to violate the RICO statute, 18 U.S.C. § 1962(d), and conspiracy to commit money laundering, 18 U.S.C. §§ 1956 and 371. On February 13, 1995, Griffith entered a plea of guilty to all three charges.

On appeal, Griffith raises three issues: First, he contests the district court's denial of his motion to dismiss the money laundering count of the indictment. Second, he argues that the district court misapplied the Sentencing Guidelines in computing his sentence. Third, he disputes the district court's rejection of his motion to invalidate the Sentencing Guidelines on constitutional and statutory grounds. We affirm the district court's judgment in all three respects.

I. Factual Background

Griffith was employed by the Hal Lowrie organization for many years. Beginning in 1985, his primary duties were as National Director of a chain of topless nightclubs known as P.T.'s. However, he maintained involvement with the "massage parlors" which are the subject of this case. Griffith lived and worked in Denver, Colorado, while the "massage parlors" were located in Illinois in the St. Louis, Missouri, metropolitan area.

In late 1985 and early 1986, though residing in Denver, Griffith directed the remodeling of one of the houses of prostitution in Illinois and helped to select its manager. Griffith also was one of five individuals who received weekly cash payments of $2000, which were skimmed from the proceeds of the prostitution operations. These cash payments were often sent via Federal Express. However, Griffith sometimes hand-carried both his own and Lowrie's shares of the skimmed cash back to Denver. Griffith knew that these funds were derived from the prostitution businesses and was aware of the way in which the finances of that business were conducted, including the fact that the prostitutes made interstate telephone calls to secure approval of charge card payments for prostitution services.

The prostitution enterprises were aided in their endeavor to escape law enforcement efforts by widespread official corruption. Members of the Lowrie organization bribed various local government and law enforcement officials including the mayor of the Village of Brooklyn, an alderman, police officers and a state liquor control inspector. Griffith admitted in his guilty plea to having participated in the decision to pay the mayor of the Village of Brooklyn $250 per week in order to influence him not to take action against the Lowrie prostitution enterprise.

II. Motion to Dismiss the Money Laundering Count

Griffith moved to dismiss the money laundering count on two grounds, only one of which he presses on appeal. Specifically, he contends that his conviction of money laundering required the court to make a chain of statutory linkages which was so tenuous as to render the laundering statute's application to his case constitutionally infirm. The chain of statutes invoked by the indictment leads from money laundering back to RICO and thence to the Travel Act. State prostitution offenses are predicate offenses for the Travel Act. Griffith argues that these statutes are ambiguous in their application to his conduct and, hence, that the rule of lenity demands that the money laundering count be dismissed. On appeal, Griffith adds the new argument that, in light of the Supreme Court's recent Lopez decision, Congress lacks the authority to punish his participation in a crime, such as prostitution, which has traditionally been a matter of local concern. United States v. Lopez, --- U.S. ----, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995).

Returning to Griffith's statutory argument, we note that the federal money laundering statute reads, in relevant part:

(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--

(A)(i) with the intent to promote the carrying on of specified unlawful activity;

. . . . .

shall be sentenced [to a fine or a term of imprisonment].

18 U.S.C. § 1956.

The money laundering count of Griffith's indictment alleged the use of various bank accounts in Illinois and Missouri, carrying the names of several legitimate or legitimate-appearing businesses, to handle the proceeds of the prostitution; the maintenance of various credit card merchant accounts in the same names for the same purposes; the use of interstate telephone calls to obtain approval of credit card transactions in payment for prostitution services; the use of Federal Express for the interstate transport of skimmed cash proceeds for Griffith and Lowrie in Denver; and Griffith's personal carriage of skimmed cash to Denver for his personal benefit and for delivery to Lowrie.

Griffith objects to the statutory analysis which brings his state prostitution offenses within the ambit of the "specified unlawful activity" forming the basis of a money laundering charge. The money laundering statute elaborates "specified unlawful activity" in some detail. State prostitution offenses are not among the specified crimes. However, according to the statute,

(7) the term "specified unlawful activity" means--

(A) any act or activity constituting an offense listed in section 1961(1) of this title [with various exceptions];

....

18 U.S.C. § 1956(c)(7).

Turning to 18 U.S.C. § 1961(1) (which defines the predicate acts for a RICO violation), we note that the offenses listed there include "any act which is indictable under any of the following provisions of title 18, United States Code: ... section 1952 (relating to racketeering)...." 18 U.S.C. § 1961(1)(B).

Section 1952 is the Travel Act, which provides:

(a) Whoever travels in interstate or foreign commerce or uses the mail or any facility in interstate or foreign commerce, with intent to--

(1) distribute the proceeds of unlawful activity; or ...

(3) otherwise promote, manage, carry on, or facilitate the promotion, management, establishment, or carrying on, of any unlawful activity,

and thereafter performs or attempts to perform [any of the acts specified in subparagraphs (1), (2), and (3), shall be fined or imprisoned].

18 U.S.C. § 1952(a). The Travel Act provides its own definition of "unlawful activity," which includes "any business enterprise involving ... prostitution offenses in violation of the laws of the State in which they are committed...." 18 U.S.C. § 1952(b).

Griffith's state prostitution offenses, which involved the use of facilities of interstate commerce, seem to meet the definition of "unlawful activity" under the Travel Act. Travel Act violations are among the list of predicate offenses for a RICO charge. Any of these violations can, in turn, constitute the "specified unlawful activity" covered by the money laundering statute. Thus, Griffith, in using interstate facilities to conduct RICO affairs involving prostitution, and in carrying out financial transactions furthering the prostitution enterprise, subjected himself to a money laundering prosecution.

Griffith complains, however, that the indictment employed a sequence of tenuous statutory connections to convert a minor state offense into a major violation of federal law. In that respect, the breadth of the federal money laundering statute has engendered some criticism. While we have upheld convictions based on a stacking of statutes very much like that challenged here, we have voiced concern that these cases "demonstrate[ ] how an aggressive United States Attorney can use the money laundering statute as a means to take over from state prosecutors the prosecution of long-established state crimes and, in the process, secure more draconian sentences and increase the population of the already overcrowded federal prisons." United States v. Montague 9 F.3d 317, 318 (7th Cir.1994). See also United States v. Campione, 942 F.2d 429 (7th Cir.1991). Thus, Griffith's complaint is not novel and has earlier evoked concern.

But, it is not our function to critique statutes--either alone or in combination. Congress, which, of course, is the statutory font, recently rejected an attempt by the Sentencing Commission to tie sentences for money laundering to sentences for the underlying criminal conduct. This approach would have reduced the sentences imposed in cases like this one. This refusal by Congress to adopt an ameliorative measure indicates an intent to impose strict punishment for money laundering, even when it is associated with relatively minor underlying offenses.

In any event, Griffith's suggestion that the money laundering statute is either vague or ambiguous as applied to the facts of this case is simply unfounded. The statutory structure involved is admittedly somewhat complicated--it takes three steps to get from state prostitution to federal money...