Opinion
No. 24725-9-II
Filed: May 24, 2002 UNPUBLISHED OPINION
Appeal from Superior Court of Thurston County, No. 95-1-00813-9, Hon. Gordon L. Godfrey, April 26, 1999, Judgment or order under review.
Counsel for Appellant(s), Robert M. Quillian, Attorney At Law, 2633a Parkmont Lane SW, Olympia, WA 98502.
Counsel for Respondent(s), John M. Jones, Bldg 2, 2000 Lakeridge Dr SW, Olympia, WA 98502.
Attorney Jason McCarty borrowed money from his client, a known drug dealer. As a result, he was charged and convicted of money laundering. He appeals his conviction, claiming the money laundering statute, RCW 9A.83.020(1)(a), is unconstitutionally vague and overbroad because the statute (1) does not adequately define the term "financial transaction" and (2) does not provide ascertainable standards of guilt to protect against arbitrary enforcement. Because the statute is neither vague nor overbroad as applied to McCarty's actions, we affirm.
FACTS
This appeal is the latest in a series that Jason McCarty and the State have pursued in relation to McCarty's December 1995 and March 1998 jury trials on the charges of money laundering and conspiracy to deliver a controlled substance. McCarty does not challenge any facts in this appeal; the following facts come from this court's published opinion at State v. McCarty, 90 Wn. App. 195, 950 P.2d 992 (1998).
See State v. McCarty, 90 Wn. App. 195, 950 P.2d 992, review denied, 136 Wn.2d 1003 (1998) (involving State's appeal of trial court's grant of new trial after verdict in money laundering case), and State v. McCarty, 140 Wn.2d 420, 998 P.2d 296 (2000) (involving the related but severed charge of conspiracy to deliver a controlled substance (methamphetamine), tried in March 1998).
A jury convicted McCarty of two counts of money laundering in December 1995 stemming from two loans he received from a known methamphetamine dealer in late 1994 and early 1995. Promissory notes evidenced both loans. After two appeals on unrelated issues (see note 1), McCarty filed this appeal challenging the constitutionality of the money laundering statute, RCW 9A.83.020, which reads in pertinent part as follows:
(1) A person is guilty of money laundering when that person conducts or attempts to conduct a financial transaction involving the proceeds of specified unlawful activity and:
(a) Knows the property is proceeds of specified unlawful activity. The State filed a Motion on the Merits to this court, which our learned colleague Commissioner Don Meath granted on January 23, 2001.
A panel of this court granted McCarty's motion for reconsideration to allow for a full review of this issue of first impression. We address one question:
Is Washington's money laundering statute, RCW 9A.83.020(1)(a), constitutional when applied to an attorney who borrows money from his client knowing that the funds are proceeds of the client's illegal drug business?
ANALYSIS
The constitutionality of a statute is a question of law that this court reviews de novo. State v. Shultz, 138 Wn.2d 638, 643, 980 P.2d 1265 (1999), cert. denied, 529 U.S. 1066 (2000); State v. Jenkins, 100 Wn. App. 85, 89, 995 P.2d 1268, review denied, 141 Wn.2d 1011 (2000). McCarty neither raises his claims under the Washington constitution nor provides a Gunwall analysis; therefore, we analyze his challenge to the money laundering statute under the protections provided by the United States Constitution. State v. Sullivan, 143 Wn.2d 162, 180 n. 73, 19 P.3d 1012 (2001).
State v. Gunwall, 106 Wn.2d 54, 61-62, 720 P.2d 808 (1986).
This court presumes statutes are constitutional, and a challenger has the heavy burden of proving vagueness beyond a reasonable doubt. Jenkins, 100 Wn. App. at 90 (citing State v. Coria, 120 Wn.2d 156, 163, 839 P.2d 890 (1992)). Vagueness Argument A statute is unconstitutionally vague if (1) the statute does not define the criminal offense with sufficient definiteness so that people of ordinary understanding can tell what conduct is proscribed, or (2) the statute does not provide ascertainable standards of guilt to protect against arbitrary enforcement. City of Spokane v. Douglass, 115 Wn.2d 171, 178, 795 P.2d 693 (1990) (citing Kolender v. Lawson, 461 U.S. 352, 357, 103 S.Ct. 1855, 75 L.Ed.2d 903 (1983)).
The burden of proving that a statute is constitutionally deficient rests with the challenger. The fundamental principle underlying the vagueness doctrine is that the Fourteenth Amendment requires fair warning to citizens of the conduct a statute prohibits. Coria, 120 Wn.2d at 163. When a statute does not involve First Amendment rights, this court evaluates a vagueness challenge by examining the statute as applied to the particular facts of the case. Maynard v. Cartwright, 486 U.S. 356, 361, 108 S.Ct. 1853, 100 L.Ed.2d 372 (1988); Coria, 120 Wn.2d at 163. Hypotheticals calling for analysis of the statute's possible application in other circumstances are inappropriate. Weden v. San Juan County, 135 Wn.2d 678, 708, 958 P.2d 273 (1998) (quoting Douglass, 115 Wn.2d at 182-83).
A statute is not unconstitutionally vague if the "defendant's conduct falls squarely within [its] prohibitions." State v. Smith, 111 Wn.2d 1, 10, 759 P.2d 372 (1988). Meaning of `Financial Transaction' The money laundering statute prohibits a person from conducting or attempting to conduct a financial transaction involving the proceeds of specified unlawful activity when the person knows the property is proceeds of specified unlawful activity. RCW 9A.83.020(1)(a). McCarty challenges the definition of "financial transaction," which the legislature defines as "a purchase, sale, loan, pledge, gift, transfer, transmission, delivery, trade, deposit, withdrawal, payment, transfer between accounts, exchange of currency, extension of credit, or any other acquisition or disposition of property, by whatever means effected." RCW 9A.83.010(3) (emphasis added). McCarty first argues that the term "financial transaction' is not defined in such [a] way as to give an ordinary person a complete understanding of the proscribed conduct, which, it is submitted, is more than an otherwise innocent transaction." Br. of Appellant at 4.
Chapter 9A.83 RCW also defines the following pertinent terms and phrases from the statute: "conducts a financial transaction," "knows the property is proceeds of specified unlawful activity," "proceeds," "property" and "specified unlawful activity." See RCW 9A.83.010.
This is the extent of McCarty's argument. He does not allege how as applied to the facts of his case a person of ordinary understanding would not know that borrowing money to purchase automobiles is a "financial transaction." Moreover, McCarty does not explain, nor can we ascertain a plausible argument to explain, how a person of common understanding would not be aware that receiving a loan of proceeds from specified unlawful activity (to wit: methamphetamine sales) qualified as a "financial transaction" prohibited under the statute. McCarty fails to prove that an ordinary person would not be on notice that this statute prohibits borrowing the proceeds of illegal drug activity. Ascertainable Standards of Guilt McCarty also claims that the money laundering statute does not provide ascertainable standards of guilt to protect against arbitrary enforcement, arguing "the statute could conceivably extend to situations clearly not envisioned by the Legislature, but which provide a basis for arbitrary and discriminatory enforcement." Br. of Appellant at 4.
The statute defines "specified unlawful activity" as an offense committed in this state that is a class A or B felony under Washington law or that is listed as "criminal profiteering" in RCW 9A.82.010, or an offense committed in any other state that is punishable under the laws of that state by more than one year in prison, or an offense that is punishable under federal law by more than one year in prison. RCW 9A.83.010(7).
In support of his claim, McCarty presents two hypothetical situations, stating that they "are but two examples of myriad examples one can think of which point to the vagueness and overbreadth of the Money laundering statute. The potential for serious abuses are present in the statute as drafted, and it is clearly unconstitutionally vague." Br. of Appellant at 4.
In McCarty's first example, a bartender observes one patron sell another a marijuana joint for five dollars, then observes the seller purchase a beer with the same five dollars. In the second, the 14-year-old daughter of a drug dealer rents a video game using money her father gave her. McCarty claims that under these examples, the bartender and the daughter would both be guilty of money laundering. As Commissioner Meath noted in his ruling on the merits, notwithstanding the inappropriateness of the use of hypotheticals in an as applied analysis, the second example also fails to establish the vagueness (or overbreadth) of the statute because the knowledge element is not necessarily met by the 14-year-old, who (1) may not know her father is a drug dealer, and (2) even if she does, may not know that the money he gave her was from unlawful activity. As Commissioner Meath states in his ruling, "[t]his ambiguity underscores how the knowledge element of the crime checks arbitrary enforcement." Ruling on the Merits at 4 n. 1.
Hypotheticals are inapplicable in a vagueness analysis when the conduct prohibited does not involve conduct (or speech) protected by the First Amendment. Here, McCarty has the burden to prove beyond a reasonable doubt that the statute as applied to the facts of his case lacks ascertainable standards of guilt to protect against arbitrary enforcement. He fails to do so. When McCarty borrowed the money from his drug dealing client he engaged in what is clearly a financial transaction under both common understanding and the statutory definition of that term. Moreover, he knew that the money he borrowed was the proceeds of methamphetamine sales. As applied to these facts, McCarty's vagueness argument fails. Overbreadth Argument McCarty does not specifically present an overbreadth argument. He mentions the concept only once, as noted in the quoted material above. The overbreadth doctrine involves substantive due process and presents the question of whether a statute not only prohibits unprotected conduct, but also reaches constitutionally protected conduct. State v. Carter, 89 Wn.2d 236, 240-41, 570 P.2d 1218 (1977). As with a vagueness challenge, unless a statute's overbreadth is alleged to infringe upon First Amendment protected activity, the challenger cannot rely on hypothetical conduct to demonstrate that a statute is unconstitutional. State v. Lundquist, 60 Wn.2d 397, 401, 374 P.2d 246 (1962) (explaining that a litigant who challenges the constitutionality of a statute "must claim infringement of an interest peculiar and personal to himself, as distinguished from a cause of dissatisfaction with the general framework of the [statute]"). Moreover, a criminal statute that regulates conduct is facially overbroad in violation of the First Amendment only if it prohibits a substantial amount of constitutionally protected conduct. City of Seattle v. Huff, 111 Wn.2d 923, 925, 767 P.2d 572 (1989) (quoting City of Houston v. Hill, 482 U.S. 451, 459, 107 S.Ct. 2502, 96 L.Ed.2d 398 (1987)). See also Broadrick v. Oklahoma, 413 U.S. 601, 615, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973) (explaining that "the overbreadth of a statute must not only be real, but substantial as well, judged in relation to the statute's plainly legitimate sweep").
Washington's money laundering statute regulates conduct — the making of financial transactions, therefore McCarty must demonstrate substantial overbreadth affecting a right protected by the First Amendment. Again, McCarty's argument falls short. He does not present a First Amendment overbreadth argument or even mention the First Amendment. He likewise fails to allege, other than in broad terms using improper hypotheticals, how the statute as applied to the facts of his case is overbroad and prohibits the exercise of his First Amendment protected rights. McCarty fails to establish that the money laundering statute is overbroad. RCW 9A.83.020(1)(a) provides that no person may benefit from the use of money obtained by specified unlawful conduct knowingly. McCarty, a lawyer, knowingly obtained a loan of his client's methamphetamine business proceeds. As applied to the facts of this case, RCW 9A.83.020(1)(a) is neither unconstitutionally vague nor overbroad, nor is the enforcement of the money laundering statute against McCarty arbitrary. We affirm. A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
QUINN-BRINTNALL, A.C.J. and BRIDGEWATER, concur.