US v. Ortiz

• Decision Date: 01 June 1990
• Docket Number: No. 90-116-CR.,90-116-CR.
• Citation: 738 F. Supp. 1394
• Parties: UNITED STATES of America, Plaintiff, v. Herb Alberto ORTIZ, Defendant.
• Court: U.S. District Court — Southern District of Florida

738 F. Supp. 1394

UNITED STATES of America, Plaintiff, v. Herb Alberto ORTIZ, Defendant.

No. 90-116-CR.

United States District Court, S.D. Florida.

June 1, 1990.

COPYRIGHT MATERIAL OMITTED

David Mandel, Asst. U.S. Atty., S.D. Fla., Miami, Fla., for plaintiff.

William M. Moran, Miami, Fla., for defendant.

ORDER

MARCUS, District Judge.

THIS CAUSE has come before the Court upon Defendant Herb Alberto Ortiz's ("Ortiz") Motion to Dismiss Count I of a twocount Indictment. The motion is based largely on the contention that Title 18 U.S.C. § 1956(a)(2)(B)(ii) ("Money Laundering Control Act") is unconstitutionally vague and violates the Fifth Amendment Due Process Clause of the Constitution and therefore that Count I is fatally defective. Defendant also maintains that he may not be charged properly under both Counts I and II of the Indictment. For the reasons outlined at some length below, Defendant's Motion to Dismiss is hereby DENIED.

This action arose out of an Indictment returned by a grand jury sitting in the Southern District of Florida on February 15, 1990. The Indictment charges that on or about February 6, 1990, the Defendant Ortiz attempted to transport some $497,000 in United States currency from Miami, Florida to a place outside the United States. Count I alleges that Ortiz knowingly and willfully attempted to transport the currency knowing that the currency represented the proceeds of some form of unlawful activity, and knowing that such transportation was designed in whole or in part to avoid a transaction reporting requirement under Federal law. These allegations are said to constitute a violation of 18 U.S.C. § 1956(a)(2)(B)(ii)¹. Count II alleges that the Defendant Ortiz knowingly and willfully failed to file a United States Customs Form 4790, Report of International Transportation of Currency or Monetary Instruments ("CMIR report") in connection with the alleged attempt to transport in excess of $10,000 in United States Currency.

The Government has proffered the following: On February 6, 1990, Ortiz delivered a water heater filled with $497,170 in United States currency to ARCA Airlines in Miami, Florida. Law enforcement officials intercepted a box containing the water heater shortly before it was to be shipped to Colombia. Upon arrest by the authorities, the Defendant allegedly acknowledged that he was aware that the money contained in the water heater represented proceeds from illegal drug sales.

The Supreme Court has viewed the void-for-vagueness doctrine as encompassing two requirements. First, the doctrine "requires that a penal statute define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited." Second, the doctrine mandates that a criminal statute be defined "in a manner that does not encourage arbitrary and discriminatory enforcement." Kolender v. Lawson, 461 U.S. 352, 357, 103 S.Ct. 1855, 1858, 75 L.Ed.2d 903 (1983). See also Hoffman Estates v. Flipside, Hoffman Estates, 455 U.S. 489, 498, 102 S.Ct. 1186, 1193, 71 L.Ed.2d 362 (1982); Grayned v. City of Rockford, 408 U.S. 104, 108-09, 92 S.Ct. 2294, 2298-99, 33 L.Ed.2d 222 (1972).

While both prongs of the void-for-vagueness doctrine are important, the Supreme Court has recognized the requirement that a statute establish minimum guidelines to govern law enforcement as the more important aspect of the doctrine. See also Kolender, 461 U.S. at 358, 103 S.Ct. at 1858; Smith v. Goguen, 415 U.S. 566, 574, 94 S.Ct. 1242, 1247, 39 L.Ed.2d 605 (1974). The High Court has observed that "where the legislature fails to provide such minimal guidelines, a criminal statute may permit `a standardless sweep that allows policemen, prosecutors, and juries to pursue their personal predilections.'" Id. (quoting Smith, 415 U.S. at 575, 94 S.Ct. at 1248).

In determining whether a criminal statute is void for vagueness, a court manifestly has a duty to scrutinize the statute "rigorously in order to protect unsuspecting citizens from being ensnared by ambiguous statutory language." United States v. Insco, 496 F.2d 204, 206 (5th Cir.1974). However, when a court engages in this rigorous scrutiny, it must bear in mind that Congress is "condemned to the use of words" when drafting criminal statutes. Moreover, "we can never expect mathematical certainty from our language." Grayned, 408 U.S. at 110, 92 S.Ct. at 2300. To this effect, the Supreme Court wrote in Boyce Motor Lines v. United States, 342 U.S. 337, 340, 72 S.Ct. 329, 330-31, 96 L.Ed. 367 (1952):

A criminal statute must be sufficiently definite to give notice of the required conduct to one who would avoid its penalties, and to guide the judge in its application and the lawyer in defending one charged with its violation. But few words possess the precision of mathematical symbols, most statutes must deal with untold and unforseen variations in factual situations, and the practical necessities of discharging the business of government inevitably limit the specificity with which legislators can spell out prohibitions.

It is a rare statute indeed as to which "the fertile legal `imagination cannot conjure up hypothetical cases in which the meaning of disputed terms will be in nice question'" Grayned, 408 U.S. at 110, n. 15, 92 S.Ct. at 2300, n. 15 (second bracket in original) (quoting American Communications Association v. Douds, 339 U.S. 382, 412, 70 S.Ct. 674, 690, 94 L.Ed. 925 (1950)). Consequently, in evaluating a contested criminal statute "no more than a reasonable degree of certainty can be demanded." Boyce Motor Lines, 342 U.S. at 340, 72 S.Ct. at 331. A Court may not invalidate application of a statute under the void-for-vagueness doctrine simply because there is some degree of ambiguity in the provisions of the statute.

In addition to the principle that a court may not demand absolute unambiguity in evaluating a criminal statute under the void-for-vagueness doctrine, we are guided by the principle that "vagueness challenges to statutes which do not involve First Amendment freedoms must be examined in the light of the facts of the case at hand." United States v. Mazurie, 419 U.S. 544, 550, 95 S.Ct. 710, 714, 42 L.Ed.2d 706 (1975). See also United States v. Powell, 423 U.S. 87, 92-93, 96 S.Ct. 316, 319-20, 46 L.Ed.2d 228 (1975). In United States v. Salerno, 481 U.S. 739, 745, 107 S.Ct. 2095, 2100, 95 L.Ed.2d 697 (1987), the Supreme Court pointed to the great difficulty inherent in mounting a facial challenge to a statute which does not implicate First Amendment interests:

A facial challenge to a legislative Act is, of course, the most difficult challenge to mount successfully, since the challenger must establish that no set of circumstances exist under which the Act would be valid. The fact that the statute might operate unconstitutionally under some conceivable set of circumstances is insufficient to render it wholly invalid, since we have not recognized an "overbreadth" doctrine outside the limited context of the First Amendment. (citing Schall v. Martin, 467 U.S. 253, 269, n. 18, 104 S.Ct. 2403, 2412 n. 18 81 L.Ed.2d 207 (1984)).

Thus, in the instant case, where no First Amendment interests are implicated, we must examine the Defendant's conduct "before analyzing other hypothetical applications of the law." Hoffman Estates, 455 U.S. at 495, 102 S.Ct. at 1191. If the alleged conduct of the Defendant is within the realm of conduct clearly proscribed by the Money Laundering Control Act, the Defendant "cannot complain of the vagueness of the law as applied to the conduct of others." Id. See also United States v. Harriss, 347 U.S. 612, 618, 74 S.Ct. 808, 812, 98 L.Ed. 989 (1953) ("if the general class of offenses to which the statute is directed is plainly within its terms, the statute will not be struck down as vague, even though marginal cases could be put where doubts might arise"). In short, in determining the Defendant's challenge to the provision of the Money Laundering Control Act, the question is whether the provision is unreasonably vague as specifically applied to the conduct allegedly engaged in by the Defendant.

In our view, the statute is clearly not void for vagueness as applied to the alleged activities of the Defendant. The text of 18 U.S.C. § 1956(a)(2)(B)(ii) contains three separate elements. First, the defendant must transport, transmit or transfer, or attempt to transport, transmit or transfer monetary funds or a monetary instrument from the United States to a place outside the United States. Second, the defendant must have knowledge that the monetary funds involved in the transportation represents the proceeds of some form of unlawful activity. Finally, the defendant must have knowledge that such transportation was intended to avoid a transaction reporting requirement under State or Federal law.

We can find no ambiguity in the application of the foregoing statutory elements to the allegations which have been presented by the Government. To begin, the Government has alleged that the Defendant delivered currency to an airline for transportation on a flight destined for a place outside of the United States. Next, the Government has proffered the claim that the Defendant acknowledged his awareness of the fact that the currency being transported represented proceeds of illicit drug sales. Finally, the allegations that no CMIR was filed and the circumstances of the alleged attempt to transport clearly indicate that the Government has alleged that the Defendant knowingly attempted to avoid a transaction reporting requirement under State or Federal law within the meaning of the statute. Our analysis of the statutory language comports with the district court's analysis in United States v. Kimball, 711 F.Supp. 1031, 1034-1035 (D.Nev.1989), the only case we can find which has evaluated a void-for-vagueness challenge to 18 U.S.C. § 1956(a)(1)(B)(ii). In Kimball, the Court found that the statutory language defines the...