TCDLA Texas Criminal Law Short Course - Voice For The Defense ...

mobile car dealer who sells a car at
market rates to a person whom he merely
suspects of involvement with crime,
cannot be convicted of this offense in
the absence of a showing that he knew
something more than the transaction or
the circumstances surrounding it. Similarly,
the "intent to facilitate" language
of the section is intended to encompass
situations like those prosecuted
under the aiding and abetting statute in
which a defendant knowingly furnishes
substantial assistance to a person whom
he or she is aware will use that assistance
to commit a crime. See, e.g.,
Backutit ,r United States, 112 F.2d 635
(4th Cir.) 1940. S. Rep. No. 433,99th
Cong., 2d Sess., 9-10 (1986).
The House Judiciary Committee also
commented on the "knowledge" standard.
A person who engages in a financial
transaction using the proceeds of a
designated offense would violate this
section if such person knew that the subject
of the transaction were the proceeds
of any crime. The Subcommittee is
aware that every person who does business
with a drug trafficker, or any other
criminal, does so at some substantial
risk if that person knows that they are
being paid with the proceeds of a crime
and then use that money in a financial
transaction. H.R. Rep. No. 855, 99th
Cong., 2d Sess., 13 (1986).
The House Committee also noted that
"knowledge" did not encompass "should
have known," "might have known," or
''a reasonable person would haveknown."
While the first domestic money laundering
offense adds the element that there
must be an intent to promote a "specified
unlawful activity," it should not be confused
with the general knowledge that the
Government would be required to prove
in the case. A person may be convicted
under section 1956(a)(l) if he knew that
money was from an illegal source and conducted
a transaction with the intent to promote
any specified unlawful activity, even
if he did not specially know that the money
involved in the transaction was drug money
as long as the Govermlent was able to
prove the specific criminal source of the
money. Only the general knowledge element
is necessary in section 1956(a)(1)
(B)(i) and (ii) where there is no intent to
promote requirement.
D. International Money Laundering.
The international parts of Title 18
U.S.C. 8 1956 tract the domestic violations
with an additional element of transportation,
or attempted transportation of monetary
instruments into or out of the countrySz9
Section 1956(a)O(A) requires a transportation
of monetary instruments or funds
from a place into the United States to or
through a place outside of the United States
with the intent to promote the carrying on
of a "specified unlawful activity." This
subsection could be used when a courier
is transporting money out of or into the
country to promote a drug transaction. Any
illicit international transportation of criminally
derived profits from the list of
"specified unlawful activities" will be
targeted by this section.
Section 1956(a)(Z)(B) has two separate
criminal culpability theories. Both have
two common elements. First, the defendant
would have to transport monetary instruments
into or out of the country. The
next element is knowing that the monetary
instruments or funds involved in the transportation
represent the proceeds of some
form of unlawful activity.'@
Finally, the defendant must know that
the transaction was designed in whole or
in part to one of the following:
nature of the money and doing the same
to conceal the ownership, etc., or to avoid
currency reporting would be a potential
target for criminal investigation.
Section 1956(c)(5) defines the term
"monetary instruments" to include coin or
currency of the United States or of any
other country, traveller's checks, personal
checks, bank checks, money orders, investment
securities in such form that title
thereto passes upon delivery, and negotiable
instruments in bearer form or otherwise
in such form that title thereto passes
upon delivery.
The Senate Judiciary Committee added
the following comment on "monetary instruments."
The definition would include cashier's
checks. The phrase "coin or currency"
is also intended to include gold or other
precious metal coins, which are not the
legal tender of a country but which do
not normally circulate as such, or
whose value is determined by the worth
of their metallic content rather than by
the operation or normal currency exchange
markets. "Monetary instruments"
are a subset of the term "property"
as used in Section (a), a term that
is intended to he construed liberally to
encompass any form of tangible or intangible
assets. S. Rep. No. 433, 99th
Cong., 2d Sess. 13 (1986).
IV. Receiving Proceeds of a
Crime-18 U.S.C. g 1957.
(i) to conceal or disguise the nature, the
location, the source, theownershio. or A Federal law has been nassed bv Conthe
control of the process of a "ski- gress in 1986 to make rec;iving p&ceeds
fied unlawful activity" or of a criminal activity a crime. Title 18
U.S.C. 8 1957 deals with knowingly
(ii) to avoid a transaction reporting re receiving proceeds from an unlawful crh-
auirement under State or Federal law.
These two theories would be used in a
situation where a money launderer would
transport currency, knowing that the currency
was from some criminal activity, and
designing the transportation of the money
to conceal, etc., the nature of the proceeds
of the specified criminal activity or to
avoid the Title 31 currency transactions requirements.
A person who now uses a mst
account to move money out of the country
or who gives directions to a financial
institution to wire transfer money out of
the country with knowledge of the criminal
inal transaction comnrised of derived funds
from a specified ukawful activity over
$10,000 involving a financial transaction.
A. Elements of Offense.
The elements of a section 1957 violation
are as follows:
a. The defendant must knowingly
engage in a monetary transactio~~~ in
criminally derived property.
b. There must be a monetary transaction
involved which normally would
require the movement of funds, by or
through, or to a financial institution.
September 1988 1 VOICE for the Defense 29