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No. 09-49

 

In the Supreme Court of the United States

PAVEL IVANOVICH LAZARENKO, PETITIONER

v.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

ELENA KAGAN
Solicitor General
Counsel of Record
LANNY A. BREUER
Assistant Attorney General
JOHN-ALEX ROMANO
Attorney
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217

 

QUESTIONS PRESENTED

1. Whether the indictment in petitioner's case omit ted an element of the alleged money laundering of fenses.

2. Whether the term "extortion," as used in the fed eral money laundering statute's definition of "speci fied unlawful activity," 18 U.S.C. 1956(c)(7)(B)(ii), in cludes extortion under color of official right and other non-violent forms of extortion.

In the Supreme Court of the United States

No. 09-49

PAVEL IVANOVICH LAZARENKO, PETITIONER

v.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

 

OPINION BELOW

The opinion of the court of appeals (Pet. App. 1-45) is reported at 564 F.3d 1026.

JURISDICTION

The judgment of the court of appeals was entered on September 26, 2008. A petition for rehearing was denied on April 10, 2009 (Pet. App. 1-2). The petition for a writ of certiorari was filed on July 9, 2009. The jurisdiction of this Court is invoked under 28 U.S.C. 1254.

STATEMENT

Following a jury trial in the United States District Court for the Northern District of California, petitioner was convicted on one count of conspiring to commit money laundering, in violation of 18 U.S.C. 1956(h); seven counts of money laundering, in violation of 18 U.S.C. 1956(a)(1)(B) and (2)(B); five counts of wire fraud, in violation of 18 U.S.C. 1343 (1994) and 18 U.S.C. 1346; and one count of interstate transportation of stolen property, in violation of 18 U.S.C. 2314. He was sen tenced to 108 months of imprisonment, to be followed by three years of supervised release. Pet. App. 10, 45-49. The court of appeals affirmed the conspiracy and money laundering convictions, reversed the wire fraud and in terstate transportation of stolen property convictions, vacated petitioner's sentence, and remanded for resen tencing. Id. at 1-45.

1. Petitioner served as a high-ranking public official in Ukraine during the 1990s. Petitioner exploited his government position to "form[] multiple business rela tionships and engage[] in a tangled series of transactions that netted him millions of dollars." Pet. App. 2-3; see id. at 3-8 (describing the five separate arrangements that formed the basis for the charges against petitioner). Petitioner "kept his money in foreign bank accounts, transferring funds from one account to another across the globe in an effort * * * to disguise and conceal the sources and ownership of the proceeds from the Ukrai nian people," and the funds "passed through bank accounts in the United States from Swiss, off-shore, and other accounts." Id. at 2. Petitioner left Ukraine around February 1999 and subsequently came to the United States. He was arrested in April 1999. Gov't C.A. Br. 22.

2. A grand jury charged petitioner with a single count of conspiracy to commit money laundering (Count 1); seven counts of money laundering, in violation of 18 U.S.C. 1956(a)(2) (Counts 2-5) and 18 U.S.C. 1956(a)(1)(B) (Counts 6-8); 22 counts of wire fraud (Counts 9-30); and 23 counts of interstate transportation of stolen property (Counts 31-53). Pet. App. 8-9; see id. at 74-121 (Second Superseding Indictment). Count 1 alleged that petitioner conspired to commit money laun dering by conducting financial transactions that involved the proceeds of extortion, wire fraud, and receipt and transfer of stolen property. Id. at 76-91. The substan tive money laundering counts were likewise based on the "specified unlawful activities" of:

receipt and transfer of property that was stolen, un lawfully converted, and taken by fraud in violation of 18 U.S.C. § 2314 and § 2315; extortion as specified in 18 U.S.C. § 1956(c)(7)(B)(ii); and wire fraud in viola tion of 18 U.S.C. § 1343 and § 1346.

Id. at 92.

Petitioner moved for a bill of particulars identifying the provisions of Ukrainian law that the government alleged that he violated. The district court denied that motion. Gov't C.A. E.R. 62-66. The court stated that petitioner would, "at some point, [be] entitled to know the specific Ukrainian laws which he is accused of violat ing." Id. at 64. The court noted, however, that peti tioner was "not being charged pursuant to foreign stat utes or laws" and stated that although "a violation of Ukrainian law may be relevant to establishing an ele ment of the alleged offense, * * * it is not the offense itself." Ibid. The district court also stated that peti tioner had "offer[ed] no legal support for the proposition that such information must be included in the indictment or a bill of particulars." Ibid.; see Pet. C.A. E.R. 90-91 (denying petitioner's subsequent motion to dismiss the indictment and reiterating the court's previous rejection of the view "that a violation of foreign law is a necessary 'element' of any of the offenses pled in the indictment"); Gov't C.A. E.R. 70-72 (denying petitioner's motion to preclude the government from attempting to prove cer tain theories of liability at trial and reiterating the court's previous view that the indictment "adequately alleges the offenses for which [petitioner] * * * is cul pable").

Petitioner also moved to dismiss the money launder ing charges on the ground "that the extortion allegations could not serve as a specified unlawful activity underly ing the charge[s] because only extortion by force, as opposed to extortion under color of office, could be the specified unlawful activity." Pet. C.A. E.R. 55. The dis trict court denied that motion, concluding "that the alle gations of extortion, fraud, and interstate transportation of stolen property [contained in the indictment] can ser vice as the specified unlawful activity required under the money laundering statute." Id. at 57.

Petitioner was tried before a jury. At the close of the government's case in chief, the district court granted petitioner's motion for a judgment of acquittal on 12 of the 22 counts charging wire fraud and 12 of the 23 counts charging interstate transportation of stolen prop erty. The jury found petitioner guilty on the remaining counts. After the jury's verdict, the district court granted petitioner's renewed motion for a judgment of acquittal with respect to five additional wire fraud counts and ten additional interstate transportation of stolen property counts. The district court declined to disturb the jury's verdict with respect to the one count charging conspiracy to commit money laundering, the seven counts charging money laundering, and one count charging interstate transportation of stolen property. Pet. App. 9-11.

3. The court of appeals affirmed petitioner's con spiracy and money laundering convictions, reversed the wire fraud and interstate transportation of stolen prop erty convictions, vacated petitioner's sentence, and re manded for resentencing. Pet. App. 1-45.

a. The court of appeals rejected petitioner's argu ment that "the indictment must be dismissed because it failed to allege that his conduct violated Ukrainian law." Pet. App. 11. The court stated that "[a]n indictment is sufficient if it (1) 'contains the elements of the offense charged and fairly informs a defendant of the charge against which he must defend' and (2) 'enables him to plead an acquittal or conviction in bar of future prosecu tions for the same offense.'" Ibid. (quoting Hamling v. United States, 418 U.S. 87, 117 (1974)). It also stated that "[a]n indictment 'should be read in its entirety, con strued according to common sense, and interpreted to include facts which are necessarily implied.'" Ibid. (quoting United States v. Berger, 473 F.3d 1080, 1103 (9th Cir. 2007), cert. denied, 128 S. Ct. 874 (2008)).

In this case, the court of appeals noted that "[t]he indictment tracks the statutory language in charging money laundering, wire fraud and interstate transporta tion of stolen property," language that the court of ap peals had previously held "set forth the essential ele ments of these offenses." Pet. App. 12. The court stated that petitioner was "seek[ing] to import an additional element into these offenses [by] claiming that the Ukrai nian law at issue is also an essential element because the government must prove a violation of Ukrainian law to sustain a conviction." Ibid. The court of appeals stated that petitioner's "challenge does not achieve novelty status simply because it involves foreign law" and it noted that the general rule is that, "when bringing charges of money laundering, the government need not allege all the elements of the 'specified unlawful activ ity,' i.e., the underlying offense." Ibid. "Here," the court of appeals explained, "the violation of Ukrainian law is the specified unlawful activity." Ibid.

The court of appeals also determined that "the omis sion of a citation to foreign law" in the indictment had not prejudiced petitioner, noting both that "[t]he indict ment provided detailed allegations regarding the basis for the charges, including dates, amounts, account num bers, and sources of the money" and that "the [petit] jury was instructed that it had to find a violation of [Ukrainian] law and was provided with the elements of the relevant [Ukrainian] statutes." Pet. App. 12-13. The court rejected petitioner's reliance on Richardson v. United States, 526 U.S. 813 (1999), both because this Court did "not comment on the sufficiency of an indict ment in Richardson" and because "here the indictment identified interstate transportation of stolen property, extortion, and wire fraud as the 'specified unlawful activit[ies]' and provided detailed allegations regarding each of these offenses." Pet. App. 13 (brackets in origi nal).

b. The court of appeals held that the evidence at trial was insufficient to sustain petitioner's convictions for wire fraud (Counts 25-29) and interstate transporta tion of stolen property (Count 31). Pet. App. 18-21, 28- 34. The court rejected petitioner's argument that the reversal of the wire fraud convictions also required re versal of the convictions on the money laundering counts charged in Counts 6-8. Id. at 21-22.

c. The court of appeals also rejected petitioner's challenge to the money laundering convictions based on Counts 2-5. Pet. App. 22-27. As the court explained, Section 1956 "criminalizes the laundering of the pro ceeds of a 'specified unlawful activity.'" Id. at 23. At the time of petitioner's charged conduct, "specified un lawful activity" was defined to include: "with respect to a financial transaction occurring in whole or in part in the United States, an offense against a foreign nation involving * * * extortion." 18 U.S.C. 1956(c)(7)(B) and (B)(ii) (1994).

The court of appeals rejected petitioner's argument "that 'extortion' as it was used in the money laundering statute * * * is limited to extortion through violence" and excludes extortion that "is more akin to bribery" or extortion committed "under color of official right." Pet. App. 23-24. The court cited the "familiar maxim that a statutory term is generally presumed to have its com mon law meaning," id. at 25 (quotation marks omitted) (quoting Evans v. United States, 504 U.S. 255, 259 (1992)), and it noted that, "[a]t common law, extortion was a crime that resembled what we know as bribery, and involved an abuse of power by a public official," and had only later been "expanded * * * to include the obtaining of property by force," ibid. The court of ap peals noted that Section 1956(c)(7)(B)(ii) did not "qualify the term in any way that suggests that we should read 'extortion' as excluding the common law definition," id. at 25-26, and stated that petitioner "has not directed us to any statute where Congress used the word 'extortion' and meant only extortion by violence or only extortion under color of official right," id. at 27.

In 2001, after the conduct at issue in this case, Con gress amended the definition of "specified unlawful activity" to include "bribery of a public official, or the misappropriation, theft, or embezzlement of public funds by or for the benefit of a public official." 18 U.S.C. 1956(c)(7)(B)(iv); see International Money Laundering Abatement and Financial Anti-Terrorism Act of 2001, Pub. L. No. 107-56, Tit. III, § 315(1)(C), 115 Stat. 308. The court of appeals determined that this amendment "does not become superfluous if we read 'extortion' to include extortion under color of official right," because "[b]ribery and extortion under color of official right are not co-extensive." Pet. App. 26; see ibid. (noting that "'[b]ribery of a public official' extends to the individual who offers the bribe as well as the public official who accepts the bribe").1

ARGUMENT

Petitioner contends (Pet. 5-13) that the omission of an element of a criminal offense from a federal in dictment can never constitute harmless error. Peti tioner also asserts (Pet. 13-20) that his conduct did not constitute "extortion" for purposes of 18 U.S.C. 1956(c)(7)(B)(ii) (1994). Those claims do not merit fur ther review.

1. The petition for a writ of certiorari should be de nied because this case is in an interlocutory posture. The court of appeals reversed six of petitioner's convic tions, vacated petitioner's sentence, and remanded for resentencing on the remaining eight counts. Pet. App. 45. Following the district court's final disposition of the case, petitioner will be able to raise his current claims- together with any other claims that may arise during resentencing-in a single petition for a writ of certio rari. See Major League Baseball Players Ass'n v. Gar vey, 532 U.S. 504, 508 n.1 (2001) (per curiam) (stating that this Court "ha[s] authority to consider questions determined in earlier stages of the litigation where cer tiorari is sought from" the most recent judgment). The interlocutory posture of the case "alone furnishe[s] suffi cient ground for the denial of" the petition for a writ of certiorari. Hamilton-Brown Shoe Co. v. Wolf Bros. & Co., 240 U.S. 251, 258 (1916); see VMI v. United States, 508 U.S. 946 (1993) (Scalia, J., respecting the denial of the petition for a writ of certiorari); see also Robert L. Stern et al., Supreme Court Practice § 4.18, at 258 n.59 (8th ed. 2002) (noting that this Court routinely denies petitions for a writ of certiorari filed by criminal defen dants challenging interlocutory determinations that may be reviewed at the ultimate conclusion of the proceed ings and explaining that this practice promotes judicial efficiency).

2. Petitioner contends (Pet. 5-13) that this Court should grant a writ of certiorari to determine whether the omission of an element of a criminal offense from a federal indictment can constitute harmless error. As petitioner notes (Pet. 5), this Court granted review to decide that question three years ago, but it ultimate ly resolved the case by finding that the indictment in question contained all the elements of the offense and thus presented no harmless-error issue. See United States v. Resendiz-Ponce, 549 U.S. 102 (2007). The pre- Resendiz-Ponce split continues to exist. The majority of the courts of appeals have held that such an omission (or the omission of a sentence-enhancing fact) is subject to harmless-error analysis. See United States v. Allen, 406 F.3d 940, 943-945 (8th Cir. 2005) (en banc), cert. denied, 549 U.S. 1095 (2006); United States v. Robinson, 367 F.3d 278, 285-286 (5th Cir.), cert. denied, 543 U.S. 1005 (2004); United States v. Higgs, 353 F.3d 281, 304-307 (4th Cir. 2003), cert. denied, 543 U.S. 999 (2004); United States v. Trennell, 290 F.3d 881, 889-890 (7th Cir.), cert. denied, 537 U.S. 1014 (2002); United States v. Cor-Bon Custom Bullet Co., 287 F.3d 576, 580-581 (6th Cir.), cert. denied, 537 U.S. 880 (2002); United States v. Prentiss, 256 F.3d 971, 981-985 (10th Cir. 2001) (per curiam) (en banc); United States v. Corporan-Cuevas, 244 F.3d 199, 202 (1st Cir.), cert. denied, 534 U.S. 880 (2001). The Third and Ninth Circuits, in contrast, have held that such omissions constitute structural error and require reversal. See United States v. Du Bo, 186 F.3d 1177, 1179-1181 (9th Cir. 1999); United States v. Spinner, 180 F.3d 514, 515-516 (3d Cir. 1999).

This case, however, does not present the question on which petitioner seeks review. The court of appeals did not conclude that petitioner's indictment omitted an ele ment of the offense but that the omission was harmless. Instead, the court held that the indictment was not de fective in the first place. See Pet. App. 11-13. As a re sult, this Court could not reach the harmless-error ques tion in this case unless it were first to consider-and then disagree with-the actual basis for the court of ap peals' decision.2

Petitioner does not seek this Court's review of the court of appeals' conclusion that "[t]he indictment against [him] was legally sufficient." Pet. App. 13; see Pet i. Petitioner likewise does not assert that that hold ing conflicts with any decision of another court of ap peals. See Pet. 5-9. Further review on that issue is therefore unwarranted.

In any event, the court of appeals correctly held that the indictment in this case was legally sufficient. As the court of appeals explained (Pet. App. 12), an indictment is sufficient if it contains the elements of the offense charged, fairly informs the defendant of the charge against him, and contains sufficient information to en able him to plead an acquittal or conviction as a bar to future prosecutions. See, e.g., Resendiz-Ponce, 549 U.S. at 108; Hamling v. United States, 418 U.S. 87, 117 (1974). An indictment that tracks the language of the statute is generally adequate for these purposes. See, e.g., United States v. Bailey, 444 U.S. 394, 414 (1980); Hamling, 418 U.S. at 117.

In this case, "[t]he indictment track[ed] the statutory language." Pet. App. 12. Compare id. at 77, 92, 94, with 18 U.S.C. 1956(a)(1)(B)(i), (2)(B)(i) and (h). Those statu tory sections set forth the essential elements of the re spective money laundering offenses. See, e.g., United States v. Vanhorn, 296 F.3d 713, 717-718 (8th Cir. 2002) (so stating with respect to Section 1956(a)(1)(B)(i)), cert. denied, 537 U.S. 1167 (2003); United States v. Ladum, 141 F.3d 1328, 1341 (9th Cir.) (same), cert. denied, 525 U.S. 898, and 525 U.S. 1021 (1998); United States v. Sav age, 67 F.3d 1435, 1441 (9th Cir. 1995) (so stating with respect to Section 1956(a)(2)(B)(i)), cert. denied, 516 U.S. 1136 (1996); United States v. Carr, 25 F.3d 1194, 1204 (3d Cir.) (similar), cert. denied, 513 U.S. 939 (1994), and 513 U.S. 1086 (1995). In addition, "[t]he indictment provided detailed allegations regarding the basis for the charges, including dates, amounts, account numbers, and sources of the money," Pet. App. 13. Accordingly, the indictment contained sufficient information to per mit petitioner to prepare a defense to the charges against and to raise a double jeopardy defense against a future prosecution for the same offenses.

Petitioner erroneously contends (Pet. 6-7) that the indictment was defective with respect to the money laundering offenses because it did not allege that his underlying conduct violated Ukrainian law and did not include a citation to "any specific provisions of the Ukrainian Criminal Code." Pet. 6. The crimes with which petitioner was charged, however, were not viola tions of Ukrainian law; rather, they were violations of the federal money laundering statute. One of the ele ments of the money laundering offense is that the prop erty involved must be "the proceeds of specified unlaw ful activity," 18 U.S.C. 1956(a)(1) (1994), or be used "to promote the carrying on of specified unlawful activity," 18 U.S.C. 1956(a)(2)(A). But "the elements of money laundering do not include the elements of the 'specified unlawful activity.'" United States v. Lomow, 266 F.3d 1013, 1017 (9th Cir. 2001). As a result, a money launder ing indictment need not allege the elements of the speci fied criminal activity. See Pet. App. 12; United States v. Caldwell, 302 F.3d 399, 413 (5th Cir. 2002); United States v. McGauley, 279 F.3d 62, 70-71 (1st Cir. 2002); United States v. Mankarious, 151 F.3d 694, 703 (7th Cir.), cert. denied, 525 U.S. 1056 (1998); United States

v. Smith, 44 F.3d 1259, 1265 (4th Cir.), cert. denied, 514 U.S. 1113 (1995).3

As the court of appeals observed, the district court charged the petit jury "that it had to find a violation of [Ukrainian] law" in order to return a guilty verdict and "provided [the jury] with the elements of the relevant [Ukrainian] statutes." Pet. App. 13. Petitioner asserts that "an element is an element" and "[t]here is no dis tinction between an element for the purposes of pleading and an element for the purposes of petit jury instruc tions." Pet. 8-9. But it is far from unusual for a trial court's jury instructions to contain more detailed infor mation about the nature of the charged offense than was contained in the indictment. See, e.g., United States v. Cherry, 330 F.3d 658, 667-668 (4th Cir. 2003) (upholding money laundering convictions where the indictment had not contained the elements of the specified unlawful ac tivity but the district court had instructed the petit jury about the elements of the specified unlawful activity).

3. Petitioner contends (Pet. 13-20) that his conduct did not constitute "extortion" as that term is used in the federal money laundering statute's definition of "speci fied unlawful activity" because that term is limited to "extortion by threats of violence." Pet. 15. That claim does not merit further review.

a. Petitioner does not assert that the court of ap peals' rejection of his claim about the meaning of the term "extortion" in the pre-2001 version of the money laundering statute conflicts with the decisions of this Court or of another court of appeals. Indeed, petitioner cites no other court of appeals decision that even consid ered this particular question. Standing alone, the ab sence of any claim of conflict warrants denial of the peti tion for a writ of certiorari with respect to the second question on which petitioner seeks this Court's review.

b. This Court's review also is unwarranted because the meaning of the pre-2001 version of the money laun dering statute is an issue of little, if any, continuing im portance. As petitioner acknowledged before the court of appeals, the sort of conduct in which he engaged is clearly covered by the post-2001 version of the statute. See Pet. C.A. Br. 83 ("With the passage of the Patriot Act, conduct of the sort charged in Counts 1 to 8 came within the scope of the money laundering statutes."). It is unlikely that any significant number of future money laundering cases will be brought based on corrupt predi cate activity that predated the enactment of a statute that already has been in effect for eight years.

c. In any event, the court of appeals correctly held that petitioner's conduct constituted "specified unlawful activity" under the pre-2001 version of the money laun dering statute. Pet. App. 22-27. The version of the stat ute in effect at the time of petitioner's offenses defined "specified unlawful activity" to include "an offense against a foreign nation involving * * * extortion." 18 U.S.C. 1956(c)(7)(B) and (B)(ii) (1994). "It is a familiar 'maxim that a statutory term is generally presumed to have its common law meaning.'" Evans v. United States, 504 U.S. 255, 259 (1992) (quoting Taylor v. United States, 495 U.S. 575, 592 (1990)). This Court has explained that, "[a]t common law, extortion was an of fense committed by a public official who took 'by colour of his office' money that was not due to him for perfor mance of his official duties," and that extortion thus "was the rough equivalent of what we would now de scribe as 'taking a bribe.'" Id. at 260. Here, as in Ev ans, "[i]t is clear that petitioner committed that of fense." Ibid.

Petitioner has failed to identify any "contrary direc tion" by Congress. Evans, 504 U.S. at 259 (quoting Morissette v. United States, 342 U.S. 246, 263 (1952)). As the court of appeals correctly observed, "Congress did not qualify the term in any way that suggests that we should read 'extortion' as excluding the common law definition." Pet. App. 25-26. Petitioner observes (Pet. 16) that the term "extortion" is included in the same statutory section as kidnapping and robbery. See 18 U.S.C. 1956(c)(7)(B)(ii) (1994). That fact, however, does not compel a court "to give the term a narrower meaning or one predicated on force or violence." Pet. App. 26. To the contrary, it is equally plausible that Congress grouped those three undefined predicate offenses to gether because they all were crimes at common law. Petitioner also contends (Pet. 15) that "[t]he term 'extor tion' has many different meanings" and that "it has cov ered different kinds of conduct" "in various statutes and at various times." As the court of appeals noted, how ever, petitioner has failed to identify "any statute where Congress used the word 'extortion' and meant only ex tortion by violence or only extortion under color of offi cial right." Pet. App. 27 (first emphasis added).

Petitioner errs in asserting (Pet. 14-15) that Con gress's decision in 2001 to amend the definition "speci fied unlawful activity" to include "bribery of a public official" demonstrates that his conduct was not covered by the pre-2001 version of the statute. He relies (Pet. 17-18) on statements by Executive Branch officials in seeking legislative changes. But the question is not whether the pre-2001 version of the money laundering statute covered "bribery" in a general sense-which is the issue addressed in the statements quoted by peti tioner, see ibid.-but whether petitioner's particular conduct constituted "extortion," which was specifically included in the pre-2001 statute.

At any rate, as the court of appeals explained (Pet. App. 26), its interpretation of the term "extortion" in the pre-2001 statutes does not render the 2001 amend ment superfluous. "Bribery and extortion under color of official right are not co-extensive," because the "'[b]rib ery of a public official' extends to the individual who of fers the bribe as well as the public official who accepts the bribe." Ibid.; see ibid. (explaining that the words "[m]isappropriation, theft, or embezzlement of public funds by or for the benefit of a public official," which also were added by the 2001 amendments, "will also cap ture conduct not punishable as 'extortion under color of official right' because misappropriation, theft, and em bezzlement do not necessarily require the quid pro quo of an official action").

Finally, petitioner cites the "fair warning require ment" discussed by this Court in United States v. Lanier, 520 U.S. 259 (1997), and appears to invoke the rule of lenity in particular. See Pet. 19 (citing the maxim that "[w]here criminal statutes are reasonably susceptible of two interpretations, the narrower inter pretation must be chosen"). As the court of appeals cor rectly recognized, "[t]he term 'extortion' has an ordinary meaning and it is not ambiguous." Pet. App. 27. The version of the statute in effect at the time of petitioner's offense thus provided more than "a fair warning * * *

of what the law intends to do if a certain line is passed." Arthur Andersen LLP v. United States, 544 U.S. 696, 703 (2005) (citation omitted). There likewise is no rea son to resort to the rule of lenity, which is reserved for cases involving a "grievous ambiguity" in the statutory text such that, "after seizing everything from which aid can be derived, . . . [the Court] can make no more than a guess at what Congress intended." Muscarello v. United States, 524 U.S. 125, 138-139 (1998) (internal quotation marks and citations omitted).

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

ELENA KAGAN
Solicitor General
LANNY A. BREUER
Assistant Attorney General
JOHN-ALEX ROMANO
Attorney

SEPTEMBER 2009

1 The court of appeals also rejected petitioner's claim that he was en titled to a new trial on grounds of retroactive misjoinder. Pet. App. 34- 44. Petitioner does not renew that claim before this Court.

2 As noted in the text, the Ninth Circuit has previously held that the omission of an element of the offense from a federal indictment consti tutes structural error. Petitioner suggests that the Ninth Circuit implicitly repudiated Du Bo in this case and effectively "held that any error in the failure to allege a foreign offense was harmless in this case." Pet. 10. But that is not what the court of appeals said; instead, it held that "[t]he indictment against [petitioner] was legally sufficient." Pet. App. 13. Even if there were any tension between the Ninth Cir cuit's decisions in Du Bo and in this case-and there is not-an intra circuit conflict would not warrant this Court's review. See Wisniewski v. United States, 353 U.S. 901, 902 (1957) (per curiam).

3 Petitioner provides no support for his assertion that "[w]hen the specified unlawful alleged is 'extortion,'" the elements of a federal mon ey laundering offense "include that the offense be 'against a foreign nation.'" Pet. 9 n.1 (quoting 18 U.S.C. 1956(c)(7)(B)(ii) (1994)). In any event, the indictment provided adequate notice by alleging extortion as well as the provision that made extortion a specified unlawful activity.