Roman Polanksi, a famous director of movies such as Chinatown and The Pianist, was recently arrested in Switzerland 32 years after he fled the United States after pleading guilty to a child sex offense in California.  According to Grand Jury testimony given by then 13 year-old Samantha Gailey, (viewable at the Smoking Gun website), Polanksi approached her to take pictures to be published in a magazine.  Gailey and her mother agreed and she went with him to Jack Nicholson’s home on March 10, 1977 to take pictures (apparently Jack wasn’t home that day, just an unknown woman).  After giving Gailey champagne while taking additional pictures of her, Polanski then gave her a Quaalude, which is a sedative similar in effect to barbiturates. 

Gailey testified that Polanski then enticed her into a jacuzzi and eventually into a bedroom where he performed oral sex on her, began vaginal intercourse, and asked her if “she was on the pill” and when “her last period was.”  She said the encounter ended after Polanski forced anal sex with her.

Originally charged with six felony counts including rape by use of drugs, perversion, sodomy, committing lewd and lascivious acts upon a child under 14, and furnishing a controlled substance to a minor, Polanksi entered into a plea bargain where he pled guilty to the lesser-included offense of unlawful sexual intercourse with a minor.  All the other counts were dismissed.

Before sentence could be imposed, Polanski, a French citizen, fled the United States and has since restricted his travel largely to France, Poland, Germany and the Czech Republic.  According to this article on TIME.com, the Los Angles County District Attorney’s office has tried to extradite Polanksi several times since his fleeing.  USC law school professor and former federal prosecutor Jean Rosenbluth seems to think that the effort to extradite Polanski may have been stepped up since he filed motions earlier this year alleging misconduct on the part of now-deceased Judge Laurence Rittenband, who was handling the case at the time.  The alleged misconduct is based upon a statement given by then-Los Angeles deputy district attorney David Wells who said that he had ex parte communications with the judge where he argued for more jail time for Polanski.  Wells has since recanted his statement, saying that he “embellished” his talk with the judge.

According to the TIME.com article, Polanski is now contesting extradition.  If unsuccessful and he was brought back to the U.S., he could face up to four years in prison for the initial crime he pled guilty to, plus an additional three years for what is known in Wisconsin as “bail jumping”- violating a condition of bail, in this case leaving the state without permission.

For both criminal defense practitioners like myself, and the public in general, this case raises several interesting and uncommon questions.  For example, what about the statute of limitations?  In Wisconsin, prosecutions for felonies must begin within 6 years (W.S.A. 939.74), and in the federal system it is usually 5 years for non-capital offenses (18 U.S.C. 3282- there are some exceptions like tax fraud).  The problem for Mr. Polanski is that the statute of limitations only helps where there was no prosecution started within the time limits.  Not only was the prosecution in his case started well within the time limits, he pled guilty early in the process also.  Federal law is clear and concise on this point, as the entirety of 18 U.S.C. 3290 reads: “No statute of limitations shall extend to any person fleeing from justice.”

How about the alleged judicial misconduct?  According to the TIME.com article, the judge handling Polanksi’s recent filing regarding the same has indicated he is open to arguments that misconduct had occurred.  However, he refused to rule on such misconduct until Polanski made a personal appearance in front of him.  This is pursuant to the “Fugitive Disentitlement Doctrine,” which states fugitives are not entitled to adjudication on their claims because if they are ruled against there can be no effective enforcement of the court’s order.  Basically, the judge is telling Mr. Polanski he can’t have his cake and eat it too.

What about Polanski defending the case on its merits, as it is now 32 years old, and the victim herself has stated publicly that she no longer thinks this case should be pursued?  Before he could do that, Polanski would have to move to withdraw his guilty plea.  If this case were in Wisconsin, Polanksi would have to show, by clear and convincing evidence, that withdrawal of the plea is necessary to correct a “manifest injustice.”  This can occur when a defendant makes a plea without knowledge of the charge or potential punishment if convicted, or if the plea is not made knowingly, voluntarily or intelligently in some regard.  See State v. Cash, 2004 WI App 63, 271 Wis.2d 451, 677 N.W.2d 709. 

As a criminal defense attorney who handles appeals in both state and federal court, I think Polanksi would have a difficult time arguing “manifest injustice” occurred here.  I reviewed the plea transcripts , and it seems to have been well-handled, no doubt due in part to the high profile of the case.  Polanski clearly was made aware of and waived several important constitutional rights, including his right to a jury trial, his right to a lawyer (he was represented by one at this stage anyway), his right to confront his accuser, the right to subpoena witnesses and present evidence, and the right to remain silent and have the state prove its case beyond a reasonable doubt.  He also stated in his own words what the penalties were that he faced, and what his criminal conduct consisted of.  The process of California’s sex offender designation was also explained to him, along with the fact that the judge decided his sentence and did not have to go along with the plea agreement.

If he is returned to the U.S., what kind of sentence can Polanski expect?  Most people in our society are familiar with the current crusade against child sex offenders, exemplified by T.V. shows like “To Catch a Predator.”  Based on the facts of the crime alone, Mr. Polanksi can expect to receive a stiff punishment.  Other sentencing factors also aggravate his situation.  The federal statute that lays out what factors a judge is to consider when sentencing a defendant is an instructive example.  These include: deterrence of crime, both specific to the individual and in general to others in society; punishment for wrongdoing; and to promote respect for the law.  See 18 U.S.C. 3553.  However, these factors have to be balanced against the history, characteristics, and rehabilitative needs of the defendant and the public interest in protection from the defendant committing further crimes.  These last two factors are where Polanksi’s greatest hope for a lenient sentence lies: he is 76 years old and is probably considered a very low-risk to re-offend.  Also, he undoubtedly has done several positive things with his life while on the run from the law, including directing The Pianist, a moving film about the trial and travails of Polish Jews during World War II.  Whoever may end up sentencing Polanksi will have to juggle several competing factors to determine a reasonable sentence for him, and will no doubt leave many people unhappy about the outcome regardless.  My guess, though, is that any such sentencing would not occur for a long time as the extradition process unfolds.

Myers was tried on arson charges.  During closing arguments, defense counsel highlighted the fact that gasoline was not found by investigators on the floor of the building that Myers allegedly burned down.  In response, the prosecutor stated:

[A]ny speculation on the part of [defense counsel] about why or why there wasn’t gasoline can be easily explained by the fact that there were firefighters that were in there that night trying to extinguish that fire with water.  Water has a tendency to sweep through and remove all sorts of different things that might have been on the ground.  So, ladies and gentlemen, that’s an easy explainable different part of what [defense counsel] was trying to suggest.

On appeal following his conviction, Myers challenged this statement as prosecutorial misconduct. 

In addressing Myers’ argument, the Seventh Circuit noted that the government was free to argue “the mere possibility that water could have cleaned or diluted the surface of the carpet.”  The problem was that “the government did not couch its argument in such hypothetical terms.” 

The Seventh Circuit observed:

[T]he government stated that the absence of gasoline was “easily explained” by the water from the fire hoses and that water “has a tendency” to “remove all sorts of different things” from the ground.  In other words, the government may have crossed the line from suggesting that such a hypothetical event occurred to vouching for the fact that it did occur.

Although the court seemed uncomfortable with the prosecutor’s statement – ”this remark would have been better left unsaid” – the court nonetheless affirmed Myers’ conviction because Myers was unable to demonstrate prejudice.  The evidence against him was strong, the questionable statement was only tangential to the government’s case, and Myers’ lawyer invited the remark by arguing the absence-of-gasoline point — all of these considerations cut against him in the prejudice analysis. 

Other new opinions in criminal cases this past week were:

United States v. Huffstatler (No. 08-2622) (per curiam) (affirming sentence in child pornography case).

United States v. Cole (No. 06-2547) (Sykes, J.) (affirming validity of appeal waiver and dismissing appeal).

United States v. McGraw (No. 08-2705) (Sykes, J.) (affirming decision that defendant voluntarily consented to search).

I was reminded of Farinella when reading the court’s decision last week in United States v. Mannava (No. 07-3748), in which the court, again per Judge Posner, overturned the defendant’s child enticement conviction based, again, on the prosecutor’s repeated use of misleading and inflammatory language in front of the jury. 

This was yet another of those cases in which the defendant attempted via the Internet to arrange a sexual liaison with a teenager who turned out to be a police officer in disguise.  The defendant was charged under 18 U.S.C. § 2422(b), which makes it a crime to entice (or attempt to entice) a minor to engage in “any sexual activity for which any person can be charged with a criminal offense.”  More specifically, the two underlying “criminal offenses” that Mannava was accused of attempting to accomplish were (1) a violation of Indiana’s vicarious sexual gratification statute and (2) a violation of Indiana’s child solicitation law.  At trial, Mannava defended himself by asserting that he knew the police officer was really an adult posing as a teenager, but the jury convicted him anyway.

The Seventh Circuit reversed, based on “the prosecutor’s incessant harping at the trial on the theme that Mannava had been intending to ‘rape’ a 13-year-old.”  Although the term “statutory rape” is colloquially used to describe illegal sex with a minor, the legal term for this under Indiana law is not “rape,” but “child molestation.”  Judge Posner concluded that the term “rape” had a different (and, in this case, misleading) connotation:

[S]aying that someone intends to rape a person implies that he intends to use force, and there is no evidence of that in this case. . . . By repeatedly accusing Mannava of intending rape, the prosecutor was undoubtedly trying to inflame the jury.  The case was sufficiently close to make the trial judge’s permitting such improper advocacy a reversible error.

I am pleased to see now in two recent cases that Judge Posner has subjected prosecutorial language to careful scrutiny.  I hope this will serve to reinforce the high standards for professional integrity that federal prosecutors set for themselves.

Besides raising a yellow flag whenever the “R” word is used at trial, Mannava also had a couple of other interesting things to say about § 2422(b) prosecutions.  First, the court indicated that, when the prosecution identifies more than one predicate offense (here, the predicates were vicarious sexual gratification and child solicitation), a single, general verdict is improper: “it was an error to allow the jury to convict without a unanimous determination that the defendant had violated one or both of the Indiana statutes.”  Thus, for instance, it would have been improper for the jury to convict if half of Mannava’s jurors thought he was guilty of attempting vicarious sexual gratification, but not child solicitation, while the other half reached the opposite conclusion.

Second, the court clarified — notwithstanding the literal terms of the statute — that conviction requires more than that the defendant could be “charged with” a predicate offense.  Because a person may be charged on mere probable cause, a literal interpretation of the statute would undermine the normal standard of proof in a criminal prosecution.  The court concluded that this would be an absurd reading of the statute.  Thus, trial judges should take care to instruct juries that “although the statute uses the term ‘can be charged with a criminal offense,’ the meaning is . . . ‘committed a criminal offense.’”

In addition to Mannava, the Seventh Circuit’s other criminal opinions last week were:

United States v. Sanner (No. 07-3738) (affirming defendants’ sentences in two consolidated cases; disputes regarding guidelines calculations did not have to be decided because same end result could have been reached regardless of guidelines calculation; see Jon Deitrich’s helpful post on the case here).

United States v. Berry (No. 07-3243) (holding that trial judge was not required to reject defendant’s request to represent himself at trial, distinguishing Supreme Court’s recent decision in Indiana v. Edwards, 128 S. Ct. 2379 (2008)).

United States v. Loera (No. 08-2324) (affirming conviction and sentence in drug-trafficking case).

United States v. Strahan (No. 07-1494) (affirming conviction and sentence in drug-trafficking case).

McMath’s jury-selection claim centered on alleged racial bias in the prosecutor’s use of peremptory strikes.  In Batson v. Kentucky, of course, the Supreme Court made clear that prosecutors are prohibited from removing potential jurors from a case on account of their race.  Here are the relevant facts from McMath:

There were two African-Americans on the panel from which McMath’s jury was selected, and the prosecutor removed one of them.  McMath’s lawyer objected, arguing that there was little information available about the potential juror other than that he was a retired janitor, and there seemed no race-neutral reason to strike him on that basis (”There’s other jurors left on this jury that are retired.”).  The prosecutor responded, “Race neutral factor is expression on his face.  That’s all I can say.  He looked angry and not happy to be here.”  McMath’s lawyer replied, “I think pretty much the whole jury looked like that.”  Prosecutor: “I disagree.  I didn’t see that expression.”  My guess is that if the prosecutor did not see some other potential jurors who looked unhappy to be there, she was not looking very hard.  In any event, following this colloquy, the judge denied the Batson challenge without explanation.

In order to understand the Seventh Circuit’s analysis in McMath, one must be familiar with the three-step process prescribed by the Supreme Court for Batson claims: (1) the defendant must present a prima facie case of racial discrimination in the exercise of peremptory strikes, (2) the prosecutor must respond with a race-neutral explanation for the challenged strike(s), and (3) the court must decided whether the defendant has carried his burden of proving improper discrimination.

On appeal, the government argued that the defendant failed to carry his step-one burden of making out a prima facie case.  However, the Seventh Circuit (per Judge Flaum) indicated the issue was moot because, “at the time of the challenge, the prosecution provided a race-neutral reason and the district court ruled on the Batson challenge.”  The message for prosecutors seems to be this: if you want a ruling on the defendant’s prima facie case, you need to get it from the trial judge before offering your race-neutral explanation.

Despite its suggestion that the issue was moot, the Seventh Circuit also indicated that McMath actually did succeed in making out a prima facie case, emphasizing how low the burden was:

[A] defendant need only produce evidence sufficient to permit an inference of discrimination in order to satisfy the first step of the Batson analysis.  The test is not rigorous: suspicion even less than “more likely than not” suffices. . . .

Here, the defendant met this threshold. . . . While it is true that it would not have been sufficient for defense counsel merely to point to the stricken juror’s race, defense counsel’s statement that jurors sharing Juror 7’s only other known characteristic, his status as a retiree, had been retained by the prosecution pointed out a relevant circumstance that was sufficient to permit an inference of discrimination . . . .

Since McMath made out a prima facie case, the burden shifted to the prosecution to produce a race-neutral reason.  This burden was carried, though, when the prosecution invoked the stricken juror’s demeanor.  The trial court was thus required, under step three of the Batson analysis, to determine whether discrimination had been adequately proven.  The trial court indicated it found no discrimination, but offered no explanation for this conclusion.

The Seventh Circuit held, however, that Snyder required more than this bare rejection of McMath’s claim.  In Snyder, as in McMath, the prosecutor relied on a stricken juror’s demeanor for a race-neutral explanation.  Demeanor is a troubling as an explanation, though, because it is so subjective and ephemeral.  The trial judge may have difficulty recollecting for himself or herself how a prospective juror looked during voir dire, while the appellate court has no ability at all to review this type of evidence.  This is not to say that demeanor is necessarily a false race-neutral explanation, but it is to say that demeanor will generally provide a safe and convenient out for a prosecutor who lacks a good race-neutral explanation.  Snyder recognized the problem, and indicated that trial judges should make clear findings as to demeanor issues when they are raised in the Batson context.

The Seventh Circuit thus relied on Snyder in remanding McMath for explicit fact-finding on the Batson issue: “Snyder makes clear that a summary denial does not allow us to assume that the prosecution’s reason was credible; rather, the district court’s silence leaves a void in the record that does not allow us to affirm the denial.”

Although agreeing with McMath’s Batson argument, the Seventh Circuit rejected his claim that he was entitled to a new trial because of improper arguments made by the prosecutor to the jury.  Reading carefully, though, one finds some real criticism of the prosecutor’s conduct:

• “the prosecutor should not have commented directly on the officers’ credibility”
• “it was improper for the prosecutor to say that the officers would lose their jobs if they lied”
• “the prosecutor probably should not have said that she ‘knew’ McMath did not want to admit his guilt”
• “even if the comments shaded into impermissible commentary”

In denying McMath’s claim of prosecutorial misconduct, the court emphasized that — due to the failure of McMath’s lawyer to object at the time to the prosecutor’s questionable comments — it was using the deferential plain error standard of review.  In effect, it seems that the mistake of the defendant’s lawyer excuses the mistakes of the government’s lawyer.

The gentle treatment in McMath of the prosecutor’s “improper” statements contrasts sharply with the direct, personal criticism leveled by the Seventh Circuit at a prosecutor just one week earlier in Farinella, which I blogged about here.  I’ll let readers judge for themselves whether the prosecutor’s improper statements in Farinella really were so much more egregious than the challenged statements in McMath.

The other two cases from last week merit less extended discussion.

In United States v. Groves (No. 07-2227), the court (per Judge Sykes) held that suppression of evidence was not required where it was obtained after a stop based on an anonymous tip.  The Seventh Circuit has had a number of anonymous tip cases recently.  (I noted one just last week here.)  In Groves, the court observed, “Although an anonymous tip is generally insufficient to support an investigative stop, there was more supporting this stop than just an anonymous tip.”  A wrinkle here is that the police dispatcher incorrectly informed the responding officers that there was an outstanding warrant for Groves’ arrest.  However, the court relied on the Supreme Court’s very recent decision in Herring v. United States, 129 S. Ct. 695 (2009), to hold that “a negligent mistake by police personnel regarding the existence of a warrant does not require application of the exclusionary rule.”

The Groves court also affirmed the reasonableness of the sentence, 240 months, notwithstanding a sentencing guidelines range of 151-188 months.

In United States v. Shah (No. 07-1306), the court (per Judge Posner) reversed the defendant’s conviction for violating 18 U.S.C. § 2314, which prohibits the transportation of people across state lines for purposes of executing or concealing a scheme to defraud.  Shah’s conviction was apparently based on his dispatching a courier across state lines in order to further his fraudulent scheme.  The Seventh Circuit ruled, however, that the statute requires that an intended victim be the person who is transported.  It was not enough for the government to rely on the transportation of an agent of the defendant’s.

Two of the opinions in this post deal with the difficult and important question of whether it is money laundering when a brothel purchases advertising.  But, before getting to that question, I’ll discuss a case that offers an unusual dressing-down of a federal prosecutor.  (There’s actually a pun in that last sentence — read on to see what I mean.)

The legal question in United States v. Farinella (Nos. 08-1839 & 08-1860) was whether those “best when purchased by” labels you find on food packages really mean anything to consumers.  Do they indicate that spoilage is imminent, or are they essentially meaningless marketing devices, akin to claims that a product is “new and improved?” 

Farinella, the defendant, purchased 1.6 million bottles of “Henri’s Salad Dressing” for resale at so-called “dollar stores.”  He presumably bought them at a discount because the bottles were past, or at least fast-approaching, the “best when purchased by” date stamped on each bottle by the manufacturer.  The manufacturer’s label would obviously make resale more difficult, but Farinella solved this problem by covering the original labels with new labels listing a later purchase date.  Of course, no one would hold this up as a model of business ethics.  But was it a federal crime?

The government charged Farinella with the crime of introducing into interstate commerce a misbranded food with intent to defraud or mislead.  A jury convicted, but the Seventh Circuit (per Judge Posner) held that the evidence was insufficient: “[T]o prove a person guilty of having made a false representation, a jury must be given evidence about the meaning (unless obvious) of the representation claimed to be fraudulent, and that was not done here.”  The court further noted there was no evidence that “selling salad dressing after the ‘best when purchased by’ date endangers human health,” that any buyer had been sickened by the salad dressing, or even that any buyer had ever complained about the taste.

The court seemed particularly put out by the government’s conflation of a “best when purchased by” date with an expiration date; in arguments at trial and on appeal, the government repeatedly characterized the “best when purchased by” date as the date on which “the dressing would expire.”  In a strongly worded rebuke, the court sated,

That is itself false and misleading, and is part of a pattern of improper argumentation in this litigation that does no credit to the Justice Department. . . . The term “expiration date” . . . on a food product . . . has a generally understood meaning: it is the date after which you shouldn’t eat the product.  Salad dressing, however, or at least the type of salad dressing represented by Henri’s, is what is called “shelf stable”; it has no expiration date.

And this was only the court’s first shot at the prosecutor’s conduct.  The court characterized her case as “threadbare,” and labeled the testimony of her expert witness (an FDA employee) as “not just improper and inadmissible, but incoherent.”  This was, in short, a big-time trip to the woodshed for the prosecutor who tried the case.  The court called her out by name, catalogued a whole series of improper statements she made to the jury, and called for an “appropriate sanction”:

The government’s appellate lawyer told us that the prosecutor’s superior would give her a talking-to.  We are not impressed by the suggestion.

The court’s harsh criticism of the prosecutor is extraordinary, and may have serious consequences for her career.  (I am particularly sensitive to these issues now in my capacity as Chair of the Nominating Commission for the open United States Attorney position in the Eastern District of Wisconsin; our questionnaire asks applicants about judidicial comments on the quality of their work.)  Because the court was reversing anyway on the basis of insufficient evidence, there was no need for the court to catalogue the prosecutor’s improper arguments.  Nor was there any need to identify the prosecutor by name, or to get into the Department of Justice’s internal disciplinary procedures.

Did the court go too far?  Or, in light of the extraordinary power prosecutors’ wield and the profound consequences of wrongful convictions, might it actually be desirable to see more frequent direct criticism of dubious prosecutorial practices?

And how about taking more defense lawyers to the woodshed, too?  It seems hardly a week goes by without the Seventh Circuit rejecting an otherwise viable argument by a defendant because it was not properly preserved for the appeal.  (I’ll discuss an example in my next post.)  Yet, one does not normally see the defendant’s trial lawyer called out by name.  To be sure, some “forfeitures” are probably sound (or at least defensible) tactical decisions by the trial lawyer.  Other times, the forfeited issue was sufficiently subtle that one can easily understand why it was missed (query in such cases whether forfeiture is indeed just).  But other times it appears to be inexcusable carelessness.  Where the court encounters such incompetence, should the court expressly label it as such?   

The next two cases both deal with spas in Rockford, Illinois, that were run as fronts for prostitution.  (Yes, if you thought the “Paradise Health Spa” in Rockford sounded too good to be true, you were right.)  The various owners of the businesses collected money from the johns, put it into business accounts, and drew on the accounts to pay rent, utilities — customers at the “Royal Health Spa” were given a shower along with their “massage” — and advertising.  (With all of the “spas” in Rockford, the competition for customers must have been fierce!)  The owners were plainly guilty of many crimes, but how about money laundering?

The government argued in the affirmative, relying on a provision of the money-laundering statute (19 U.S.C. § 1956(a)(1)) that makes it a crime to use the “proceeds” of an unlawful activity to promote an unlawful activity.  In the government’s view, the statute is violated when a prostitution business plows its revenue back into the business through rent, utilities, and advertising payments.  However, this view flies in the face of Seventh Circuit precedent (specifically, United States v. Scialabba, 282 F.3d 475 (7th Cir. 2002)), which defines “proceeds” as net proceeds, not gross revenue.  Under the Seventh Circuit’s approach, there are no “proceeds” to be laundered until after the bills are paid.  Because the government’s money-laundering case was built around evidence of rent, utilities, and advertising payments, the defendants’ money-laundering convictions pretty clearly could not stand under Scialabba.

But the two Rockford cases, United States v. Hodge (Nos. 06-3485 & 06-3502) and United States v. Lee (Nos. 06-3029 et al.), presented a difficulty: in the time since Scialabba had been decided, the Supreme Court issued its own pronouncement on the meaning of “proceeds” in United States v. Santos – a pronouncement whose implications for Hodge and Lee were not entirely clear. 

I blogged about Santos here.  Briefly, the Court divided 4-1-4, with no majority opinion in the case.  One group of Justices would join with the Seventh Circuit in categorically defining “proceeds” as net proceeds (or profits), while another group would categorically define “proceeds” as gross revenue (or receipts).  Justice Stevens, the decisive fifth vote, endorsed an in-between position, in which “proceeds” might sometimes mean one thing, and sometimes the other.  The Seventh Circuit thus faced a difficult task in deciding to what extent Scialabba survived Santos.

And the court did not exactly supply a clear, complete answer to that question.  Judge Easterbrook, writing for the Hodge panel, characterized Justice Stevens’ (controlling) position this way:

Justice Stevens concluded not only that normal business expenses are not proceeds but also that the money-laundering statutes should be construed to avoid raising the maximum punishment for a substantive offense that necessarily entails the use of gross revenues to carry on the business . . . .

Justice Stevens was worried about the duplication of legal prohibitions — about a  situation in which it is impossible to commit the substantive offense without committing money laundering, unless the defendant eats or burns the currency he takes in.

In the view of the Hodge and Lee panels, Stevens’ position was consistent with Scialabba when it came to rent and utilities: these are normal business expenses for a brothel, and their payment should not give rise to money-laundering liability.  But advertising might be in different category: in Easterbrook’s words, “It is possible to carry on organized crime without advertising it.”  Thus, “Justice Stevens may well conclude that . . . advertising costs are not subtracted when defining ‘proceeds.’”  Ultimately, though, this tentative conclusion was as far as the court got in resolving the advertising issue.  In both Hodge and Lee, the jury instructions failed to make clear the important distinctions that had to be made with regard to the definition of “proceeds,” and it was possible that the defendants were convicted on the basis of paying their rent and utility bills (which would not be money laundering) instead of on the basis of their advertising expenditures (which might or might not count as money laundering).  Given the risk of conviction on an improper basis, the defendants’ convictions had to be reversed — leaving a definitive resolution of the advertising question for another day.