United States v. William Poff ( 2011 )

FILED
NOT FOR PUBLICATION DEC 13 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 10-30295
Plaintiff - Appellee, D.C. No. 2:09-cr-00160-JLR-3
v.
MEMORANDUM *
WILLIAM S. POFF,
Defendant - Appellant.
Appeal from the United States District Court
for the Western District of Washington
James L. Robart, District Judge, Presiding
Submitted December 9, 2011 **
Seattle, Washington
Before: GUY,*** McKEOWN, and TALLMAN, Circuit Judges.
William S. Poff appeals his conviction on six counts of promotional money
laundering under 18 U.S.C. § 1956 and his conviction on six counts of
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Ralph B. Guy, Jr., Senior United States Circuit Judge
for the Sixth Circuit Court of Appeals, sitting by designation.
transactional money laundering under 18 U.S.C. § 1957. Because the parties are
familiar with the factual and procedural history of this case, we repeat only those
facts necessary to resolve the issues raised on appeal. We have jurisdiction
pursuant to 28 U.S.C. § 1291.
Poff’s sole argument on appeal is that his conviction on six counts of
“transactional” money laundering under 18 U.S.C. § 1957 violates the Double
Jeopardy Clause because he was also convicted on six counts of “promotional”
money laundering under 18 U.S.C. § 1956(a)(1)(A)(i), largely on the same
evidence. Because Poff failed to raise this argument in the district court, we
review for plain error. United States v. Davenport, 519 F.3d 940, 943 (9th Cir.
2008).
Where the same act or transaction constitutes a violation of two distinct
statutory provisions, the test to be applied to determine whether they are two
offenses or only one is whether each provision requires proof of an additional fact
which the other does not. Blockburger v. United States, 234 U.S. 299, 304 (1931).
The elements of the offenses are determinative, even if there is a substantial
overlap in their proof. Albernaz v. United States, 450 U.S. 333, 338 (1981). “The
fact that a defendant violates by a single transaction several regulatory controls
devised by Congress . . . does not make the several different regulatory controls
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single or identic.” Id. at 338 (quoting Gore v. United States, 357 U.S. 386, 389
(1958)).
Further, the Supreme Court has explicitly rejected the “same conduct”
analysis which Poff now advocates. United States v. Dixon, 509 U.S. 688 (1993)
(expressly overruling Grady v. Corbin, 495 U.S. 508 (1990), which had held a
subsequent prosecution must satisfy a “same-conduct” test to avoid the double
jeopardy bar). In Dixon, the Court made clear that the Blockburger test is the
appropriate test for determining whether the Double Jeopardy Clause precludes
additional punishment or successive prosecutions. Id. at 704.
In this case, § 1956 requires proof of “intent to promote the carrying on of
specific unlawful activity,” while § 1957 does not. 18 U.S.C. § 1956(a)(1)(A)(i).
Conversely, § 1957 requires proof that the defendant engaged in a monetary
transaction “in criminally deprived property of a value greater than $10,000,”
whereas § 1956 does not. 18 U.S.C. § 1957(a). In addition, based on the charges
against Poff, to establish a violation of § 1957, the government was required to
prove that he conducted his activities in the United States. 18 U.S.C. § 1957. This
proof was not required for the § 1956 charges. Finally, we have noted previously
the elements that differentiate §§ 1956 and 1957. See United States v. Rutgard,
116 F.3d 1270, 1291 (9th Cir. 1997) (noting five elements of § 1956 that
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differentiate it from § 1957). Neither offense is a lesser-included offense of the
other, and Congress enacted separate penalties for each offense.
Poff’s conviction on six counts of transactional money laundering under
§ 1956 and six counts of promotional money laundering under § 1957 does not
violate the Double Jeopardy Clause.
AFFIRMED.
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