United States of America; Government of the Virgin Islands v. FATHI YUSUF MOHAMMED YUSUF a/ka FATHI YUSUF

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 07-3308
UNITED STATES OF AMERICA;
GOVERNMENT OF THE VIRGIN ISLANDS,
Appellants
v.
FATHI YUSUF MOHAMMED YUSUF a/ka FATHI YUSUF;
WALEED MOHAMMED HAMED a/k/a WALLY HAMED;
WAHEED MOHAMMED HAMED a/k/a WILLIE YUSUF;
MAHER FATHI YUSUF a/k/a MIKE YUSUF;
ISAM MOHAMAD YOUSUF a/k/a SAM YOUSEF;
UNITED CORPORATION, d/b/a PLAZA EXTRA;
NEJEH FATHI YUSUF
On Appeal from the District Court of the Virgin Islands
(Division of St. Croix)
No. 05-cr-00015
District Judge: Hon. Raymond L. Finch
Argued December 11, 2007
Before: SMITH, NYGAARD and ROTH, Circuit Judges
(Opinion filed June 17, 2008)

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ROTH, Circuit Judge:
ORDER AMENDING OPINION
IT IS ORDERED that the published Opinion in the above case, filed on June 17,
2008, be amended as follows:
On page 18, delete the following sentence:
Accordingly, we recognize that the Supreme Court’s holding in
Santos overrules this Court’s decision I United States v. Grasso, which was
relied upon by the District Court. Grasso, 381 F.3d 160, 169 (3d Cir. 2004)
(holding that “proceeds,’ as that term is used in the money laundering statue,
means gross receipts [from illegal activity] rather that profits”).
and, at the end of the now-shortened paragraph, insert a new footnote 12,
following existing footnote 11, as follows:
In Santos, a four-Justice plurality concluded that, in applying the
rule of lenity, the word “proceeds” in the money laundering statute means
profits and not, as the government had argued, gross receipts. 128 S. Ct. at
2023-25 (plurality opinion). Justice Stevens, the tie-breaker, took the view in
his concurring opinion that, depending on the import of legislative history,
proceeds may mean profits as applied to some specified unlawful activities and
gross receipts as applied to others. 128 S. Ct. at 2031-32 (Stevens, J.,
concurring); see id. at 2030 (stating that “Justice STEVENS expresses the
view that the rule of lenity applies to this case because there is no legislative
history reflecting any legislator's belief about how the money-laundering
statute should apply to lottery operators”) (citing id. at 2032-33). As the
plurality recognized, “[s]ince his vote is necessary to our judgement, and since
his opinion rests upon the narrower ground, the Court’s holding is limited... ,”
to the holding “... that ‘proceeds’ means ‘profits’ when there is no legislative
history to the contrary.” 128 S. Ct. at 2031 (citing Marks v. United States, 430
U.S. 188, 193 (1977)).
In view of the above discussion, we believe that Santos overrules this
Court's decision in United States v. Grasso, which was relied upon by the
District Court in the instant case. Grasso, 381 F.3d 160, 169 (3d Cir.2004)
(holding that “ ‘proceeds,’ as that term is used in the money laundering statute,

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means gross receipts [from illegal activity] rather than profits”).
As this amendment does not change the original disposition by the panel, the date of
the original judgment date will not be altered.
By the Court,
/s/ Jane R. Roth
Circuit Judge
Dated: July 21, 2008

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