The following opinions were released by the U.S. Supreme Court on June 2, 2008:

• Richlin Security Service Co. v. Chertoff. Opinion of the Court by Alito, J., joined by Roberts, C.J., and Stevens, Kennedy, Souter, Ginsburg, Breyer, JJ.; and joined by Scalia, J., except as to Part III-A; and joined by Thomas, J., except as to Parts II-B and III. Reversing a decision by the Court of Appeals for the Federal Circuit, the Supreme Court held that, under § 504 of the Equal Access to Justice Act, paralegal fees are to be reimbursed at the prevailing market rate rather than at the cost to the party’s attorney; the Court found that, under the plain language of the EAJA, there is no meaningful dichotomy between “fees” and “other expenses” to justify measuring paralegal fees at a different rate, and that, moreover, even if paralegal fees should be treated as a distinct “other expense,” the cost measured should not be the cost to the party’s attorney, but the cost to the litigant. The Court then held, in a section in which Justice Thomas did not join, that any ambiguity remaining in the statute could be resolved by analogy to the Court’s decision in Missouri v. Jenkins, 491 U.S. 274 (1989), where the Court interpreted the Civil Rights Attorney’s Fees Awards Act in a similar fashion to include the measurement of paralegal expenses along with fees incurred for work performed by attorneys. In a section not joined by either Justice Thomas or Justice Scalia, the Court analyzed the government’s argument that the EAJA’s legislative history supported the result reached by the Federal Circuit and rejected that argument. In a further section that was not joined by Justice Thomas, the Court rejected the government’s policy-based argument for assessing paralegal costs at cost to the attorney, finding that the argument that the market-based scheme would encourage an inefficient shifting of work to paralegals “proved too much,” that such an argument would reveal a policy that would run contrary to express provisions of the statute. The whole Court then rejected the application of the sovereign immunity canon of construction, which would counsel for narrow reading of any statute acting as a waiver of sovereign immunity, as the canon would only be applicable where other traditional statutory interpretation canons would fail to reveal a clear interpretation.
• U.S. v. Santos. Judgment of the Court in plurality opinion by Scalia, J., joined by Souter, Ginsburg, JJ., and by Thomas, J., except as to Part IV; opinion concurring in judgment by Stevens, J.; dissenting opinion by Alito, J., joined by Roberts, C.J., and Kennedy, Breyer, JJ.; dissenting opinion by Breyer, J.. The defendants were convicted on a number of counts arising from the operation of an illegal lottery, including counts involving violation of the federal money laundering statute at 18 U.S.C. § 1956(a)(1)(A)(i). Under that statute, the government is required to prove that the transaction “involve[d] the proceeds of specified unlawful activity” and that the property at issue in the charged transaction “represent[ed] the proceeds of some form of unlawful activity.” The Court of Appeals vacated the defendants’ convictions for money laundering. At issue is whether the statutorily undefined term “proceeds” means “profits” or “receipts.” Justice Scalia reasoned that there was no more reason to interpret the statute as requiring “proceeds” to mean gross receipts than to mean profits, and that the rule of lenity required breaking the tie in favor of the criminal defendant. Justice Scalia rejected reading into the statute any notion of congressional intent to break the “tie” and halt invocation of the rule of lenity. He also noted that, if the Court accepted the invitation to look into congressional intent, it would find itself teetering on the edge of merging the money laundering statute into the illegal lottery prohibition, as every illegal lottery would inherently involve money laundering if “proceeds” meant “receipts”; he wrote, “The Government suggests no explanation for why Congress would have wanted a transaction that is a normal part of a crime it had duly considered and appropriately punished elsewhere in the Criminal Code to radically increase the sentence for that crime.” Slip op. at 9. In a section of the opinion not joined by Justice Thomas, Justice Scalia rejected Justice Stevens’ reasoning in his concurrence that the rule of lenity might not apply to reach the same result in certain crimes where the congressional intent can easily be seen to require “proceeds” to mean receipts. Acknowledging the stare decisis challenge presented by the fractured opinion and the fact that only the narrowest opinion coming out of the plurality will have precedential impact, Justice Scalia wrote, “[T]he narrowness of [Justice Stevens’] ground consists of finding that ‘proceeds’ means ‘profits’ when there is no legislative history to the contrary. That is all that our judgment holds. It does not hold that the outcome is different when contrary legislative history does exist. Justice Stevens’ speculations on that point address a case that is not before him, are the purest of dicta, and form no part of today’s holding.” Slip op. at 16. In concurring in the judgment, Justice Stevens examined various criminal statutes that treat “proceeds” differently, and, finding that Congress was free to use the same term in disparate fashions, found that courts were free to do likewise when filling in undefined gaps in statutes so long as those courts were remaining as narrowly focused on the discernible legislative intent as possible. Parrying Justice Scalia’s prnouncement regarding the opinions’ stare decisis effect, Justice Stevens wrote, “In what can only be characterized as the ‘purest of dicta,’ the plurality speculates about the stare decisis effect of our judgment and interprets my conclusion as resting on the ground that ‘”proceeds” means “profits” when there is no legislative history to the contrary.’ . . . That is not correct; my conclusion rests on my conviction that Congress could not have intended the perverse result that the dissent’s rule would produce if its definition of ‘proceeds’ were applied to the operation of an unlicensed gambling business. In other applications of the statute not involving such a perverse result, I would presume that the legislative history summarized by Justice Alito reflects the intent of the enacting Congress.” Concurrence slip op. at 5 n.7. Dissenting, Justice Alito wrote that defining “proceeds” to mean gross receipts was in keeping with the legislative intent behind statutes prohibiting the sale of contraband the operation of organized criminal syndicates, as discussed in Justice Stevens’ concurrence, but that “proceeds” should maintain this meaning for all underlying statutes rather than, as urged by Justice Stevens, giving “proceeds” different meanings for different underlying crimes. Justice Alito also noted that, with regard to the opinions’ stare decisis effect, five justices agree with Justice Stevens’ formulation of “proceeds” with regard to the underlying crimes of sale of contraband and operation of an organized crime syndicate. Justice Alito than found that an overwhelming majority of statutes that do define “proceeds” do so by defining the term to mean gross revenues, not profits, and that requiring the government to prove “profits” would present an undue prosecutorial hurdle. In his dissent, Justice Breyer wrote separately to address the merger issue raised by Justice Scalia.
• Regalado Cuellar v. U.S.. Opinion of the Court by Thomas, J., for a unanimous Court; concurrence by Alito, J., joined by Roberts, C.J., and Kennedy, J.. Reversing the en banc decision of the Court of Appeals for the Fifth Circuit, holding that merely hiding money prior to a cross-border transit does not trigger federal money laundering statute’s prohibition of international transportation of the proceeds of an unlawful activity. The Court agreed with the petitioner that the common meaning of the term “money laundering” would require that some step be taken to conceal not just the money, but also the illegitimate nature of the money; but the Court disagreed that this automatically required the statute to only reach “classic money laundering” activities. Slip op. at 7. The Court also rejected the petitioner’s argument that the money laundering statute requires more than mere physical concealment because otherwise the conduct is already criminalized by the bulk cash smuggling statute; the Court held that there would still be distinct elements of conduct criminalized by the two statutes. The Court then held that, while the statute contains no “appearance of legitimate wealth” requirement, it nevertheless required more than a showing of mere concealment because the statute’s requirement that the “design” of the transportation itself be to conceal the illegitimate nature of the funds emphasized something greater than even a substantial effort at physical concealment. In this case, for instance, the Court found that the efforts to conceal the money were taken to facilitate the transportation of the money across the border, but that the secrecy was not itself the purpose the transportation. Slip op. at 15.