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Money laundering.

I. INTRODUCTION II. OVERVIEW OF THE STATUTE

A. Section 1956

1. Transaction Money Laundering

2. Transportation Money Laundering

3. Sting Operations

B. Section 1957 III. ELEMENTS OF THE OFFENSE.

A. Knowledge

1. General Knowledge Requirement

2. Willful Blindness

B. Specified Unlawful Activity

C. Financial Transaction

1. Multiple Transactions

2. Interstate Commerce

D. Proceeds

1. Tracing

2. Sting Operations

E. Intent IV. DEFENSES

A. Constitutional Vagueness

B. Double Jeopardy V. PENALTIES

A. Section 1956

B. Section 1957

I. INTRODUCTION

According to one former federal prosecutor, "the white collar crime of the 1990's is here and it is money laundering."(1) Money laundering is the process by which one conceals the existence, illegal source, or illegal application of income, and disguises that income to make it appear legitimate.(2) Laundering criminally derived proceeds has become a lucrative and sophisticated business in the United States and is an indispensable element of organized crime's activities.(3) Without the ability to move and hide its enormous wealth through laundering techniques, large scale criminal activity could operate only at a small fraction of current levels, and with far less flexibility.(4)

In recognition of this phenomenon, Congress passed the Money Laundering Control Act of 1986,(5) holding criminally liable any individual who conducts a monetary transaction knowing, or with reason to know, that the funds involved were derived from unlawful activity.(6) Unlike earlier unsuccessful efforts to control the movement of illegal income through financial institution reporting requirements,(7) the statute is aimed at "the lifeblood of organized crime:"(8) the act of converting funds derived from illegal activities into a spendable or consumable form.(9)

The Money Laundering Control Act of 1986 (the "Act") defines and prohibits for the first time a category of activity known as "money laundering."(10) The Act not only reaches the proceeds of conduct characteristic of organized crime, such as narcotics trafficking, Racketeer Influenced and Corrupt Organizations Act ("RICO")(11) predicates, or certain state offenses, but also encompasses a wide range of additional criminal offenses including espionage, trading with the enemy, and conducting financial transactions with intent to engage in violations of the Internal Revenue Code.(12)

Although the proceeds of crime historically have been subject to seizure by warrant for use as evidence,(13) the Act makes criminal proceeds perpetually illegal. Long after the original criminal offense which generated the proceeds has come to an end, those who conduct prohibited financial transactions or transportation of these proceeds engage in criminal conduct independent of the income-producing original crime.(14) The concept is to bar all "monetary transactions" in "criminally derived property."(15) Furthermore, the Act does not limit itself to transactions conducted through financial institutions,(16) but appears to reach a broad variety of routine commercial transactions which affect commerce.(17)

II. OVERVIEW OF THE STATUTE

The Money Laundering Control Act consists of two sections. Section 1956 addresses the knowing and intentional transportation or transfer of monetary funds derived from certain unlawful activities specified in the statute. In contrast, [sections] 1957 addresses transactions involving non-monetary property derived from the specified unlawful activities.

A. Section 1956

Section 1956(a) consists of three subdivisions. First, [sections] 1965(a)(1) prohibits participation in transactions with knowledge that the transaction involves the proceeds of criminal activity.(18) Second, [sections] 1956(a)(2) prohibits the transportation of monetary instruments in foreign commerce with knowledge that such instruments are associated with unlawful activity.(19) Finally, [sections] 1956(a)(3) explicitly authorizes the use of government sting operations to expose criminal activity under this section.(20) Each of these subsections is described in more detail below.

1. Transaction Money Laundering

Offenses referred to in [sections] 1956(a)(1) fall under the rubric of "transaction money laundering" because the prohibited action is the financial transaction itself.(21) The offenses contained in this subsection result when an individual conducts or attempts to conduct a financial transaction with criminally derived money.(22) The four potential crimes are: (1) conducting a financial transaction with the intent to promote specified unlawful activity;(23) (2) conducting a financial transaction with the intent to engage in 26 U.S.C. [sections] 7201(24) or [sections] 7206(25) tax evasion violations;(26) (3) conducting a financial transaction designed to conceal or disguise the nature, location, source, ownership, or control of the proceeds of specified unlawful activity;(27) and (4) conducting a financial transaction designed to avoid a state or federal reporting requirement.(28)

2. Transportation Money Laundering

Section 1956(a)(2) contains three separate offenses relating to the transportation, transmission, or transfer of criminally derived proceeds.(29) The three offenses are the transportation, transmission, or transfer of a monetary instrument into or out of the United States (1) with the intent to promote the carrying on of a specified unlawful activity;(30) (2) when it is known that the monetary instrument represents the proceeds of some form of unlawful activity, and the transportation is designed to conceal or disguise such proceeds;(31) and (3) when it is known that the monetary instrument represents the proceeds of some form of unlawful activity, and the transportation is designed to avoid a state or federal transaction reporting requirement.(32)

3. Sting Operations

Section 1956(a)(3) criminalizes three activities conducted during government sting operations. Generally, sting operations involve a financial transaction conducted with property represented by a law enforcement officer to be the proceeds of specified unlawful activity, or property used to conduct or facilitate the conduct of specified unlawful activity.(33) This section, therefore, provides for the use of informants.(34)

Under the sting provisions of [sections] 1956, it is illegal to conduct a financial transaction involving property represented by a law enforcement officer to be the proceeds of a specified unlawful activity with the intent (1) to promote specified unlawful activity;(35) (2) to conceal or disguise the nature, location, source, ownership, or control of the proceeds of specified unlawful activity;(36) or (3) to avoid a state or federal transaction reporting requirement.(37)

B. Section 1957

Section 1957 provides for the punishment of one who knowingly engages or attempts to engage in a monetary transaction in criminally derived property, which has a value greater than $10,000 and is derived from specified unlawful activity.(38) It is not required that the recipient actually exchange or launder the funds, nor that he have any specific intent to further or conceal unlawful activity. It has been suggested that the scope of [sections] 1957 is broad enough to criminalize seemingly "innocent" acts or commercial transactions.(39) However, [sections] 1957 does require that the violator "knowingly" engage in a transaction involving criminally-derived property.(40) Nevertheless, the intent of Congress in enacting [sections] 1957 was to dissuade people from conducting even ordinary commercial transactions with people suspected to be involved in criminal activity.(41)

III. ELEMENTS OF THE OFFENSES

There are five elements which must be established to obtain a conviction under the Act. These elements are: (1) knowledge, (2) the existence of a specified unlawful activity, (3) a financial transaction, (4) proceeds and (5) intent.(42)

A. Knowledge

1. General Knowledge Requirement

Knowledge is a requisite element for all of the crimes established by the Money Laundering Control Act, although the exact type of knowledge required varies with the specific offense. Both [subsections] 1956 and 1957 require that the property or money in question be the proceeds of a specified unlawful activity. Section 1957 imposes a knowledge requirement that the offender "knowingly engage or attempt to engage in a monetary transaction in criminally derived property."(43) Thus, to be prosecuted under [sections] 1957, a person need not know from what specific criminal activity the property was derived-merely that it was derived from some form of criminal conduct.(44)

Section 1956 has a comparatively specific knowledge requirement. Under [sections] 1956, the offender must have knowledge "that the property involved in a financial transaction represents the proceeds of some form of unlawful activity."(45) Section 1956(c)(1) defines "some form of unlawful activity" to mean some form of felonious conduct,(46) so under [sections] 1956, the offender must know that the property consists of the proceeds of a felony. However, [sections] 1956(c)(1) also makes it clear that the offender need not know the specific criminal activity from which the proceeds are derived.(47)

Section 1956 contains a secondary knowledge requirement related to the defendant's intent. Sections 1956(a)(1)(B) and (a)(2)(B) require that one take action knowing that the transaction or transportation is designed to conceal information about the proceeds of specified criminal activity, or knowing that it is intended to avoid a transaction reporting requirement under state or federal law.(48) Under this secondary requirement, the knowledge referred to is that of the person who designed the transaction. However, if the designer and the defendant are two different people, the defendant can still be found to have the requisite knowledge of what the transaction was designed to do.(49)

Determining how knowledge may be proven and at what point a person has attained the requisite knowledge has presented problems for the courts. All circuits, however, have allowed the use of circumstantial evidence to prove knowledge, even though some have found such evidence to be lacking in specific cases.(50)

2. Willful Blindness

The knowledge requirement in both [subsections] 1956 and 1957 is actual knowledge, rather than the less stringent standards of "should have known" or "reckless disregard."(51) However, the actual knowledge requirement has been "softened somewhat" and can be met by showing "willful blindness" by the defendant.(52) While the Act does not explicitly enunciate the standard, it has generally been assumed that Congress intended to enunciate a definition of knowledge broad enough to include willfull blindness.(53) Consequently, this willful blindness standard(54) has been upheld by the circuit courts when a reasonable jury could find

willful blindness.(55)

B. Specified Unlawful Activity

The Act criminalizes only those transactions that actually involve the proceeds of a "specified unlawful activity."(56) The Act contains a laundry list of crimes that constitute specified unlawful activities.(57) This list was expanded by the Antiterrorism and Effective Death Penalty Act of 1996 which added numerous additional crimes under the heading of "specified unlawful activity."(58) The Second Circuit has explained that "[s]o long as the cash is represented to have come from any of the [listed illegal] activities, a defendant is guilty of the substantive offense of money laundering."(59)

While the original motivation for enacting The Money Laundering Control Act was to combat the movement of money derived from drug-related offenses,(60) the extensive list of activities that constitute specified unlawful activities includes many non-drug related offenses which are frequently prosecuted.(61) While the proceeds of some unconventional activities may form the basis of indictment under this statute, the original congressional intent to punish narcotics trafficking is acknowledged by the Federal Sentencing Guidelines which impose stricter sentences for persons involved in laundering money obtained from drug-related activities.(62)

The Department of Justice has recognized that differences in terminology in the predicate offense statutes are critical to the proper pleading of [sections] 1956 charges.(63) The Department of Justice's Manual on [sections] 1956 cautions against departures from the statutory language:

In the context of prosecutions predicated upon narcotic[s] trafficking, it

is important to remember that the term "specified unlawful activity" is

based upon RICO predicate offenses. . . . Thus, it would seem that the drug

must be a "narcotic or dangerous drug" to form the basis of a Section 1956

or Section 1957(a) or (b)(1) violation.(64)

As previously discussed, [sections] 1956(c)(7) also defines the term "specified unlawful activity" in terms of specific acts or activities which constitute discrete offenses.(65) The use of such terminology should dictate that the government plead more than broad, generic categories of criminal activity. For example, merely pleading that defendants violated certain criminal statutes would appear to be insufficient because it would not provide notice of any specific acts or activity constituting an indictable offense or offenses under federal law.(66) In practice, however, when defendants have challenged the particularity with which the specified unlawful activity was alleged in the indictment, the courts have not required an overly stringent degree of particularity in the pleadings.(67)

C. Financial Transaction

The foundation of, and jurisdictional predicate for, a violation of [sections] 1956(a)(1) or [sections] 1956(a)(3) is the occurrence of a "financial transaction."(68) The definition of the term is not limited to banking or other financial institutions.(69) Read broadly, virtually any exchange of money between two persons constitutes a financial transaction subject to criminal prosecution under [sections] 1956, provided that the transaction has a substantial effect on interstate commerce(70) and satisfies at least one of the four intent requirements of [sections] 1956(a)(1)(A)-(B).(71)

While the legislative history of [sections] 1956 demonstrates that Congress did not view every transfer or delivery of property as a financial transaction,(72) the term "financial transaction" has been interpreted broadly by the courts. Transactions that have qualified as financial transactions within the meaning of the statute include: the transfer of title to a truck;(73) the sale of automobiles;(74) the writing of a check from the proceeds of fraudulently obtained loans to pay the interest on these loans,(75) for cash to a vendor who has provided services,(76) or in conjunction with a payroll check laundering scheme;(77) the transfer of cashier's checks;(78) payment with a money order;(79) the placement of cash proceeds into a safety deposit box;(80) deposits into a bank account;(81) and the submission of a false theft claim to an insurer.(82) Attempts to engage in a transaction, even if the transaction is not completed, also satisfy the requirement.(83)

Some movements of funds, however, have managed to escape being labeled "financial transactions" under the statute. Most notably, some circuits have held that the mere transportation of drug proceeds does not constitute a financial transaction under [sections] 1956(c)(3).(84)

1. Multiple Transactions

A potential problem of construction for the courts is posed by the term "financial transaction." Sophisticated money laundering schemes may employ many financial and non-financial institutions in various jurisdictions and countries.(85) Thus, criminal proceeds may pass through many entities before reaching their final intended destination. If each such transaction affected interstate or foreign commerce, then each separate transfer or deposit constitutes a separate and discrete indictable offense.(86)

Despite defendants' arguments to the contrary, courts have held that it is not multiplicitous to charge a defendant for each discrete transfer of funds in a money laundering scheme.(87) One court explained that " [i]t is the individual acts of money laundering which are prohibited under [sections] 1956(a)(1)(B)(i), and not the course of action which those individual acts may constitute."(88)

2. Interstate Commerce

For a violation of [sections] 1956 to occur, the transaction involved must affect interstate commerce or involve a financial institution "which is engaged in, or the activities of which affect, interstate or foreign commerce in any way or degree."(89) The purpose of this requirement is to confer federal jurisdiction over these cases.(90) The courts have required only "minimal effects" on interstate commerce in order to satisfy the requirement and confer federal jurisdiction.(91) Some examples of transactions determined to be sufficient to confer federal jurisdiction include: purchase of a car;(92) investment in construction of a shopping mall;(93) a transaction involving funds on deposit at a federally insured financial institution;(94) a transaction involving a check(95) or money order;(96) and drug purchases.(97) However, an utter lack of evidence linking the transaction to interstate commerce will frustrate a money laundering prosecution.(98)

D. Proceeds

Section 1956 prohibits conducting transactions that involve the "proceeds of specified unlawful activity."(99) The primary issue is whether "proceeds" can be something other than money.(100) In [sections] 1957, Congress prohibited certain transactions involving "criminally derived property" rather than "proceeds." Yet, "criminally derived property" is defined as: "any property constituting, or derived from, proceeds obtained from a criminal offense."(101) If the two statutes are read together, the phrase "derived from" in [sections] 1957 may suggest that the term "proceeds" in [sections] 1956 has a more limited meaning.(102) While [sections] 1956 does not define the term "proceeds,"(103) courts have construed the term broadly, defining "proceeds" to include more than just monetary instruments.(104)

1. Tracing

The government need not trace proceeds involved in a money laundering scheme back to a particular offense.(105) Instead, the government may present evidence demonstrating that the defendant engaged in conduct typical of that type of criminal activity and had no other legitimate source of funds.(106) While standing alone such evidence may be considered insufficient to convict the defendant,(107) the jury may permissibly draw an inference from this and other circumstantial evidence to conclude that the proceeds could have only been derived from an illegal source.(108)

Nor is tracing required when illegal proceeds are commingled in a bank account with legitimate funds. Courts have consistently found it unnecessary for the government to segregate tainted funds from a commingled account in a money laundering prosecution.(109)

2. Sting Operations

The Money Laundering Improvements Act of 1988 amended [sections] 1956 to allow for sting operations.(110) Section 1956(a)(3) now permits conviction where the defendants believe the money is the product of specified unlawful activity, despite the fact that, in reality, no illegal proceeds are involved.(111)

E. Intent

The intent requirement is a necessary element of a money laundering conviction under [sections] 1956,(112) and the specific intent is determinative of the crime with which a suspect will be charged.(113) Intent is a fact-specific inquiry,(114) and is often closely related to the requirement that the defendant know the transaction is designed to conceal information about the proceeds of criminal activity.(115) Courts have repeatedly cautioned against combining intent requirements which are independent in the statute.(116) Some courts have suggested that the government advise the district court and defense counsel under what theory of mens rea it is proceeding, and that the jury be charged accordingly.(117) The fact that the government may have taken on the additional burden of trying to prove both requirements will not generally warrant a reversal.(118)

Transportation sting operations, governed by [sections] 1956(a)(2)(B) of the statute, present a unique challenge to courts in their formulation of the requisite intent to support a criminal action. Courts, in construing this intent, have adopted a standard which allows establishment of the requisite mens rea while enabling law enforcement officials to be effective undercover agents. In dealing with the potential money launderer, the undercover agent is not required to alert the suspect to the illegal source of the funds.(119) It is enough to satisfy the requirement of mens rea that the defendant "believe" the funds to have been derived from an illegal source rather than "know" as the statute on its face requires.(120) The intent requirement for sting operations generally is the same as that in subsections (a)(1)(B)(i) and (a)(2)(B)(i).(121)

When all of the other elements of a [sections] 1956 offense are satisfied, a court may look to whether the transaction was a "typical laundering transaction" as evidence of the defendant's criminal intent. Where it is not a "typical transaction," a court is less likely to find that the defendant acted with the intent to conceal or disguise such a transaction.(122) Some courts, however, have limited the scope of this analysis.(123)

A final issue that has been raised in reference to the intent requirements of [sections] 1956 is that of "transferred intent." Transferred intent would allow a defendant who did not design the transaction to be convicted based upon the intent of the designer.(124) Although defendants have argued that the incorporation of a transferred intent element renders [sections] 1956 unconstitutionally vague, courts have uniformly rejected such attacks.(125)

IV. DEFENSES

A. Constitutional Vagueness

Under [sections] 1956, it is unclear at what point individuals may be deemed to have gained sufficient knowledge about their dealings with someone to "know" that the person's funds were obtained from some unlawful activity.(126) Consequently, challenges have been made that the knowledge requirement makes the statute unconstitutionally vague.(127) Such challenges have generally been rejected by courts to which they have been presented.(128) Challenges based upon the vagueness of other portions of [subsections] 1956-1957 have failed as well.(129)

B. Double Jeopardy

A possible defense to the statutory requirement of a predicate specified unlawful activity is that of double jeopardy.(130) In United States v. Edgmon,(131) the defendant contended that his conviction for both conversion and money laundering constituted multiple punishments for the same offense,(132) since the crime of conversion was a necessary element of the money laundering charge.(133) The Tenth Circuit rejected Edgmon's argument, saying that his money laundering conviction was not a violation of double jeopardy because "Congress appears to have intended the money laundering statute to be a separate crime distinct from the underlying offense that generated the money to be laundered."(134)

Both the Senate report and the statute itself reflect the intent of Congress to close a gap in criminal law enforcement by making the post-crime hiding of ill-gotten gains criminally punishable.(135) Congress directed the money laundering statute "at conduct that follows in time the underlying crime rather than to afford an alternative means of punishing the prior `specified unlawful activity.'"(136) The Edgmon court concluded that Congress "intended money laundering and the `specified unlawful activity' to be separate offenses separately punishable."(137) The lower courts are in general agreement on this point.(138) Similarly, the Supreme Court ruled in 1996 that the forfeiture, pursuant to 18 U.S.C. [sections] 981(a)(1)(A), of property involved in money-laundering activities in violation of [sections] 1956 is not "punishment" for purposes of the double jeopardy clause. (139)

V. PENALTIES

The offenses created by the Money Laundering Control Act carry both criminal penalties and civil sanctions. The criminal penalties consist of imprisonment, fines and forfeiture, which vary with the type of offense,(140) while the civil sanctions are limited to severe monetary penalties and forfeiture.(141) The assessment of a combination of both criminal and civil penalties does not constitute double jeopardy. (142)

A. Section 1956

The maximum criminal penalty for a [sections] 1956 violation is imprisonment for twenty years, a fine of $500,000 or twice the value of the monetary instruments or funds laundered, whichever is greater, or both.(143) Defendants convicted under [sections] 1956 are sentenced in accordance with [sections] 2S1.1 of the Federal Sentencing Guidelines.(144) If the defendant is convicted under [subsections] 1956(a)(1)(A), (a)(2)(A), or (a)(3)(A), the base offense level is twenty-three.(145) If convicted under any other provision of [sections] 1956, the base offense level is twenty.(146) If the defendant knew or believed that the funds were the proceeds of an unlawful activity involving narcotics, the offense level is automatically increased by three levels.(147) Additionally, if the value of the funds exceeded $100,000, the offense level is increased in accordance with the table in [sections] 2S1.1(b)(2).(148) Special instructions apply for fines imposed on organizational defendants.(149) In a 1995 development, indicating a heightened U.S. effort at enforcement on a global scale, President Clinton suggested sanctions may be imposed on nations failing to bring their banks and financial systems into conformity with the international anti-money-laundering standards."(150) The nature, extent, and political support of such sanctions have yet to be delineated.

B. Section 1957

A violation of [sections] 1957 subjects a person to ten years imprisonment, a fine, or both.(151) There is no civil penalty provision for [sections] 1957. Defendants convicted under [sections] 1957 are sentenced in accordance with [sections] 2S1.2 of the Guidelines.(152) The base offense level under this section is seventeen.(153) If the defendant knew that the funds were the proceeds of an unlawful activity involving narcotics, the offense level is automatically increased by five.(154) If the defendant knew that the funds were the proceeds of any other specified unlawful activity, the offense level is increased by two.(155) If the value of the funds exceeded $100,000, the offense level is increased as specified in [sections] 2S1.1(b)(2).(156) As with [sections] 1956, special instructions apply for fines imposed on organizational defendants.(157)

(1.) Elkan Abramowitz, Money Laundering: The New Rico?, 208 N.Y. L. J. 3 (Sept. 1, 1992) (noting the trend away from RICO prosecutions and towards money laundering prosecutions).

(2.) President's Commission on Organized Crime, Interim Report to the President and the Attorney General, The Cash Connection: Organized Crime, Financial Institutions, and Money Laundering 7 (1984) [hereinafter Interim Report]. President Ronald Reagan established the Commission by Executive Order 12,435 on July 28, 1983. The Executive Order empowered the Commission to analyze the nature and extent of organized crime, to discover the sources of its income and the ways in which the income is spent, to evaluate the effectiveness of current laws and procedures, and to recommend administrative and legislative improvements. Paul G. Wolfteich, Note, Making Criminal Defense a Crime Under 18 U.S.C. Section 1957, 41 Vand. L. Rev. 843, 843 n.1 (1988).

(3.) James D. Harmon, Jr., United States Money Laundering Laws: International Implications, 9 N.Y. L. Sch. J. Int'l & Comp. L. 1, 2 (1988).

(4.) Id.

(5.) 18 U.S.C. [subsections] 1956, 1957 (1994), amended by Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No.104-132, [sections] 726, 110 Stat. 1214, 1301-1302 (1996); see also 1986 U.S.C.C.A.N. 5393 (legislative history of Money Laundering Control Act of 1986), 1996 U.S.C.C.A.N. 944 (legislative history of Antiterrorism and Effective Death Penalty Act of 1996).

(6.) 18 U.S.C. [subsections] 1956(a), 1957(a).

(7.) Reporting requirements failed because they imposed an obligation not on the suspected money launderer, but on the financial institution. To avoid triggering reporting requirements, suspects could easily structure their transactions to fall below reporting thresholds. See, e.g., Mark R. Irvine & Daniel R. King, Comment, The Money Laundering Control Act of 1986: Tainted Money and the Criminal Defense Lawyer, 19 Pac. L.J. 171, 176-77 (1987) (Bank Secrecy Act does not require individuals to file reports); Currency and Foreign Transactions Reporting Act of 1970, 12 U.S.C. [subsections] 1730(d), 1829(b), 1951-1959 (1994), 31 U.S.C. [subsections] 321, 5311-5324 (1994) (The Bank Secrecy Act requires only financial institutions to file reports with the federal government any time a person conducts a large cash transaction); 21 U.S.C. [subsections] 853, 881 (1994) (civil forfeiture laws). For a discussion of The Bank Secrecy Act and the forfeiture laws. see generally Project, Eighth Survey of White Collar Crime, 30 Am. Crim. L. Rev. 813, 814-16 (1993) (discussing pre-1986 attempts to control money laundering).

(8.) Letter from Irving R. Kaufman, Chairman, President's Commission on Organized Crime, to President Ronald Reagan (Oct. 1984), reprinted in Interim Report, supra note 2, at iii.

(9.) Irvine & King, supra note 7, at 172.

(10.) See G. Richard Strafer, Money Laundering: The Crime of the '90's, 27 Am. Crim. L. Rev. 149 (1989) (discussing background of the Money Laundering Control Act).

(11.) 18 U.S.C. [subsections] 1961-1968 (1994). For a discussion of RICO, see generally the Racketeer Influenced and Corrupt Organizations article in this issue.

(12.) Harmon, supra note 3, at 10-12. The breadth of the Act is evident from the comprehensive definition given for the term "specified unlawful activity" under [sections] 1956(c)(7). Examples of specified unlawful activity include [sections] 1201 (relating to kidnapping), [sections] 1203 (relating to hostage taking), [sections] 1708 (theft from the mail) of this Title and [sections] 590 of the Tariff Act of 1930(19U.S.C. [sections] 1590) (relating to aviation smuggling).18 U.S.C. [sections] 1956(c)(7) (1994).

(13.) See Fed. R. Crim. P. 41(b)(1) (authorizing issuance of warrant for search and seizure of evidence of criminal offense).

(14.) Harmon, supra note 3, at 12.

(15.) See 18 U.S.C. [subsections] 1957(f)(1)-(2) (1994). According to the Act, a "monetary transaction" is a "deposit, withdrawal, transfer, or exchange, in or affecting interstate commerce, of funds or a monetary instrument . . . by, through, or to a financial institution . . . but such term does not include any transaction necessary to preserve a person's right to representation as guaranteed by the sixth amendment to the Constitution. . . ." 18 U.S.C. [sections] 1957(f)(1). In addition, the Act defines "criminally derived property" as "any property constituting, or derived from, proceeds obtained from a criminal offense . . . ." 18 U.S.C. [sections] 1957(f)(2).

(16.) The first money laundering bills proposed in the Senate limited their focus solely to money laundering conducted through financial institutions. Senate Comm. on the Judiciary, The Money Laundering Crimes Act of 1986, S. Rep. No. 433, 99th Cong., 2d Sess. 1-3 (1986) [hereinafter Senate Report]; cf. Harmon, supra note 3, at 13 n.45 (arguing that Congressional rejection of bill designed to involve only financial institutions indicates that the Act is to be construed broadly).

(17.) Harmon, supra note 3, at 13; see also 18 U.S.C. [sections] 1956(c)(3)-(4) (1994) (defining the terms "transaction" and "financial transaction"); United States v. Brown, 31 F.3d 484, 489 (7th Cir. 1994) (third-party processing of credit card charges qualifies as financial transactions); United States v. Hamilton, 931 F.2d 1046, 1051 -52 (5th Cir. 1991) (mailing proceeds from sale of illegal drugs constitutes a transaction); United States v. Jackson, 935 F2d 832, 840 (7th Cir. 1991) (use of illegally derived funds to purchase beepers intended to promote the sale of illegal drugs constitutes a transaction).

(18.) 18 U.S.C. [sections] 1956(a)(1).

(19.) 18 U.S.C. [sections] 1956(a)(2).

(20.) 18 U.S.C. [sections] 1956(a)(3).

(21.) Barry J. Finkelstein, Money Laundering from the Federal Perspective, reported in 2 Georgetown University Law Center, Federal Enforcement 1992: Defense Strategies for Winning White Collar Trials (1992) (describing the elements of the offenses).

(22.) 18 U.S.C. [sections] 1956 (1994).

(23.) 18 U.S.C. [sections] 1956(a)(1)(A)(i).

(24.) Section 7201 of the Internal Revenue Code provides, "Any person who willfully attempts in any manner to evade or defeat any tax imposed by this title or the payment thereof shall, in addition to other penalties provided by law, be guilty of a felony . . . ." 26 U.S.C. [sections] 7201 (1994).

(25.) Section 7206 subjects to criminal prosecution those taxpayers who commit fraud or make false statements while attempting to defeat the assessment or collection of a tax. 26 U.S.C. [sections] 7206 (1994).

(26.) 18 U.S.C. [sections] 1956(a)(1)(A)(ii). Note, however, that tax evasion itself is not covered by the money laundering statute, but is addressed as conducting a financial transaction with the intent to avoid paying taxes. Both Internal Revenue Code [subsections] 7201 and 7206 are discussed in detail in the Tax Evasion article in this issue.

(27.) 18 U. S.C. [sections] 1956(a)(1)(B)(i).

(28.) 18 U.S.C. [sections] 1956(a)(1)(B)(ii).

(29.) 18 U.S.C. [sections] 1956(a)(2). The term "transport" is not defined in the statute. See Strafer, supra note 10, at 163-64 n.86 (arguing that Congress meant the term to apply only to the physical transportation of funds). But see United States v. Monroe, 943 F.2d 1007, 1015 (9th Cir. 1991) (holding that electronic transfers of funds--including international wire transfer--constitutes transportation of funds for purposes of subsection (a)(2)).

(30.) 18 U.S.C. [sections] 1956(a)(2)(A).

(31.) 18 U.S.C. [sections] 1956(a)(2)(B)(i).

(32.) 18 U.S.C. [sections] 1956(a)(2)(B)(ii).

(33.) For the purpose of this section, "represented" means "any representation made by a law enforcement officer or by another person at the direction of, or with the approval of, a Federal official authorized to investigate or prosecute violations of this section." 18 U.S.C. [sections] 1956(a)(3).

(34.) Finkelstein, supra note 21, at 60; United States v. Knecht, 55 F.3d 54, 57 (2d Cir. 1995).

(35.) 18 U.S.C. [sections] 1956(a)(3)(A); see United States v. Adams, 74 F.3d 1093, 1100 (4th Cir. 1996) (stating that the government need only prove that some and not all of the property involved in an illegal transaction was the proceeds of specified unlawful activity); United States v. Shorter, 54 F.3d 1248, 1257 (7th Cir. 1995) (sustaining conviction for money laundering where a coconspirator testified that he gave proceeds of illegal drug sale to defendant either directly or by wire, the wire company had records of transfers between the coconspirator and defendant, and the conspirator testified that defendant supplied him with illegal drugs); United States v. Santos, 20 F.3d 280, 284 (7th Cir. 1994) (holding evidence sufficient for money laundering conviction where a witness testified that he sent proceeds of cocaine sales to defendant's business and defendant knew that the witness had a history of cocaine trafficking).

(36.) 18 U.S.C. [sections] 1956(a)(3)(B); See Knecht, 55 F.3d at 54 (upholding money laundering conviction where defendant's only reason to believe that the money to be laundered was the proceeds of illegal drug sales was a statement by an undercover agent); United States v. Starke, 62 F.3d 1374, 1379 (11th Cir. 1995) (stating that the government need only prove that law enforcement officer made defendant aware of circumstances which would allow a reasonable person to infer that the property was drug proceeds); United States v. Barton, 32 F.3d 61, 64 (4th Cir. 1994) (upholding money laundering conviction of defendant for a $500,000 transaction where defendant agreed and intended to launder that amount, even though the "flash money" showed to defendant by a law officer amounted to only $50,000).

(37.) 18 U.S.C. [sections] 1956(a)(3)(C). See United States v. Nelson, 66 F.3d 1036, 1040-45 (9th Cir. 1995) (finding evidence sufficient to support money laundering conviction where defendant's tape-recorded statements indicated his belief that the undercover officer was a drug dealer).

(38.) 18 U.S.C. [sections] 1957(a). See United States v. Smith, 44 F.3d 1259 (4th Cir. 1995) (finding defendant's conviction of money laundering under [sections] 1957 adequately supported by evidence that the defendant knew that the funds he transferred from a corporation to a trust account had been obtained by wire fraud).

(39.) See Irvine & King, supra note 7, at 185 (arguing that [sections] 1957 contains language broad enough to impact legitimate activities); Harmon, supra note 3, at 12-13 (stating that the Act appears to reach a broad variety of routine commercial transactions); Strafer, supra note 10, at 161 (observing that [sections] 1957 is potentially much broader than [sections] 1956).

(40.) 18 U.S.C. [sections] 1957(a); see Frank C. Razzano, American Money Laundering Statutes: The Case for a Worldwide System of Banking Compliance Programs, 3 D.C.L.J. Int'l L. & Prac. 277, 288 (1994) (observing that under [sections] 1957 defendant need only know that the funds were derived from some felony, and not necessarily the particular felony from which the funds were derived).

(41.) In the words of former Representative Lungren: "It is time for us to tell the local trafficker and everyone else, `[i]f you know that person is a trafficker and has this income derived from the offense, you better beware of dealing with that person.'" H.R. Rep. No. 855, 99th Cong., 2d Sess. 14 (1986) (citation omitted).

(42.) 18 U.S.C. [subsections] 1956-57 (1994).

(43.) 18 U.S.C. [sections] 1957(a); see also Harmon, supra note 3, at 15 (discussing the knowledge and intent requirements of the Act).

(44.) Section 1957(c) states that the "government is not required to prove the defendant knew that the offense from which the criminally derived property was derived was specified unlawful activity." 18 U.S.C. [sections] 1957(c).

(45.) 18 U.S.C. [sections] 1956(a)(1). Section 1956(a)(2)(B) has a similar requirement, prohibiting an action where the defendant knows "that the monetary instrument or funds involved in the transportation, transmission, or transfer represent the proceeds of some form of unlawful activity." 18 U.S.C.[sections] 1956(a)(2)(B),

(46.) 18 U.S.C. [sections] 1956(c)(1).

(47.) Section 1956(c)(1) provides:

[T]he term "knowing that the property involved in a financial transaction

represents the proceeds of some form of unlawful activity" means that the

person knew the property involved in the transaction represented proceeds

from some form, though not necessarily which form, of activity that

constitutes a felony under State, Federal, or foreign law, regardless

of whether or not such activity is [specified unlawful activity].

18 U.S.C. [sections] 1956(c)(1); see also S. Rep. No. 433, supra note 16, at 11 (offender need only know that the properly involved is the proceeds of some form of unlawful activity); United States v. Isabel, 945 F.2d 1193, 1201 n.13 (1st Cir. 1991) (holding that defendant need not have known that property involved represented proceeds of specified unlawful activity, only that transaction was designed to conceal or disguise proceeds of specified unlawful activity).

(48.) 18 U.S.C. [subsections] 1956(a)(1)(B), (a)(2)(B); see also Harmon, supra note 3, at 14-15 (discussing the second knowledge requirement).

(49.) See, e.g., United States v. Massac, 867 F2d 174, 178 (3d Cir. 1989) (defendant's transfer of cash to Haiti over a five-month period with the use of the services of her fellow Haitian countryman rather than a bank, when coupled with evidence of her engagement in narcotics sales, was sufficient to prove that she knew that the transactions in which she was engaged were designed to conceal the proceeds of narcotics sales); see also Isabel, 945 F.2d at 1202 (unusual payroll scheme and business dealings sufficient for a reasonable jury to find that defendant knew that these actions were designed to conceal proceeds of narcotics).

(50.) See, e.g., United States v. Cota, 953 F.2d 753, 760-61 (2d Cir. 1992) (sister of drug dealer knew house she was selling was purchased with drug proceeds); United States v. Long, 977 F.2d 1264, 1269-70 (8th Cir. 1992) (car dealer knew buyer listed false employment on credit application, received payments under the table and lied to grand jury); Isabel, 945 F.2d at 1202 (circumstantial evidence used to establish that defendant knew financial transaction was designed to launder money); United States v. Gallo, 927 F.2d 815, 822 (5th Cir. 1991) (knowledge shown where defendant met drug dealer in parking lot, received box of money and drove off); United States v. Brown, 944 F.2d 1377,1387 (7th Cir.1991) (defendant's careful engineering of laundering scheme mace no sense if he did not know that the funds involved were the proceeds of criminal activity); United States v. Jackson, 935 F.2d 832, 840-41 (7th Cir. 1991) (testimony of secretary and witnesses who helped count money supported finding that defendant knew money was derived from drug operations); cf. United States v. McDougald, 990 F.2d 259, 263-64 (6th Cir. 1993) (where defendant agreed to purchase car for drug dealer and lied to police and the court about purchase, circumstantial evidence not sufficient to show knowledge); United States v. Campbell, 977 F.2d 854, 859 (4th Cir. 1992) (proper to exclude evidence that person was a "known" drug dealer when alleged drug dealer resided in city is miles away from defendant's home).

(51.) See United States v. Bader, 956 F.2d 708, 710 (7th Cir. 1992) (interpreting the knowledge requirement to be more than "should have known" or "could have concluded" but noting the possibility of willful blindness); see also S. Rep. No. 433, supra note 16, at 6-8 (affirming that more than "reason to know" or "reckless disregard" is necessary under the statute).

(52.) Campbell, 977 F.2d at 857 ("the defendant's knowledge of a fact may be inferred by willful blindness to the existence of a fact").

(53.) See, e.g., Harmon, supra note 3, at 14 (presuming that Congress intended to adopt a reckless disregard standard). See also S. Rep. No. 433, supra note 16, at 9-10 (equating knowledge with willful blindness or "conscious avoidance of knowledge").

(54.) A clear example of what constitutes "willful blindness" is provided in United States v. Antzoulatos, 962 F.2d 720 (7th Cir. 1992). In Antzoulatos, the defendant had a very close relationship with the drug dealers whose money he was accused of laundering. Id. at 727. The defendant admitted to hearing rumors of his friends' involvement in drugs, although he denied statements made by the drug dealers in a pre-sentencing report that they had told him that they were involved in drug trafficking. Id. at 722-23. Additionally, it was proven at trial that Antzoulatos paid at least one man a fake salary which was resumed to him "under the table." Id. at 722. The sentencing judge concluded that at the very least, Antzoulatos was turning a blind eye to the drug dealers' activities. Id. at 723. See also United States v. Kaufmann, 985 willfully blind to use of drug proceeds to purchase car); Campbell, 977 F.2d at 858-59 (real estate agent willfully blind to client's use of drug proceeds to purchase house); United States v. Long, 977 F.2d 1264, 1270 (8th Cir. 1992) (same).

(55.) See Campbell, 977 F.2d at 859 (on the facts a reasonable jury could find willful blindness). Allowing willful blindness to satisfy the knowledge requirement has been criticized as effectively shifting the burden of proof to the defendant:

Unlike the few traditional cave. justifying a willful blindness

instruction, in a [sections] 1956 prosecution the government need not

prove precisely what knowledge the defendant is consciously avoiding. The

government merely must show that the defendant has had business dealings

with someone the government can show is "a criminal". The circumstances of

these dealings, at some imprecise point, effectively shifts the burden to

the defendant to show that he was acting reasonably and without knowledge.

Strafer, supra note 10, at 169.

(56.) Currently the only exception to this is sting operations, where the sole requirement is that it was represented to the defendant by a law enforcement officer that the proceeds involved were derived from a specified unlawful activity. 18 U.S.C. [sections] 1956(a)(3); cf. Pearlstine Distributors, Inc. v. Freixenet USA, 678 F. Supp. 133, 136 (D.S.C. 1988) (no cause of action stated where laundering occurred prior to time when specified unlawful activity set forth in indictment became a crime).

(57.) 18 U.S.C. [sections] 1956(c)(7) (also applies to [sections] 1957). "The term `specified unlawful activity' has the meaning given that term in [sections] 1956." Section 1956 contains an exhaustive list of illegal acts considered to be "specified unlawful activity." 18 U.S.C. [sections] 1956(c)(7).

(58.) Pub. L. No. 104-132, [sections] 726, 110 Stat. 1214, 1301-1302 (1996).

(59.) United States v. Stavroulakis, 952 F.2d 686, 691 (2d. Cir. 1992). Section 1956(a)(3) does not require that co-conspirators believe that the money to be laundered is derived from the same specified unlawful activity. Id.

(60.) See generally Strafer, supra note 10, at 177. Strafer writes:

With respect to drug-related offenses, [sections] 1956(c)(7) defines

specified unlawful activity only in terms of Title 18, and not Title 21

offenses (with the exception of offenses "against a foreign nation").

Drug-related offenses are brought within the definition of specified

unlawful activity through subsection (c)(7)(A), which states that "any act

or activity constituting an offense listed in [[sections] 1961(1) of RICO]

may constitute the specified unlawful activity." Section 1961(1)(D), in

turn, includes in its definition of racketeering activity "any offense

involving . . . the felonious manufacture, importation, receiving,

concealment, buying, selling, or otherwise dealing in

narcotic or other dangerous drugs, punishable under any law of the United

States."

Id; see also United States v. 16899 S.W. Greenbrier, 774 F. Supp. 1267, 1274 (D. Or. 1991) ([sections] 1956 does not require a full RICO violation, which is defined in 18 U.S.C. [sections] 1962, but merely one or more of the offenses listed in [sections] 1961).

(61.) See United States v. Lee, 937 F.2d 1388, 1390-91 (9th Cir. 1991) (government predicated money laundering violation on fishermen's intent to smuggle salmon into the United States in violation of 18 U.S.C. [sections] 545); United States v. Montoya, 945 F.2d 1068, 1071 (9th Cir. 1991) (state legislator indicted for money laundering in connection with taking a bribe); United States v. Edgmon, 952 F.2d 1206, 1208-09 (10th Cir. 1991) (defendant convicted for selling cattle securing FMHA loans without authorization); United States v. Werber, 787 F. Supp. 353, 354 (S.D.N.Y. 1992) (defendant convicted for selling cars purchased with counterfeit money).

(62.) U.S. Sentencing Guidelines Manual (hereinafter U.S.S.G.) [sections] 2S1.1 cmt.

(63.) See Strafer, supra note 10, at 177 (observing that differences in Title 18 and Title 21 terminology require care in pleading money laundering offenses).

(64.) Id. at 177-78 (citing United States Dep't of Justice, Handbook on the Anti-Drug Abuse Act of 1986 64 (1986)).

(65.) See 18 U.S.C. [sections] 1956(c)(7)(A) (defining "specified unlawful activity").

(66.) Strafer, supra note 10, at 178.

(67.) See, e.g., United States v. Werber, 787 F. Supp. 353, 356 (S.D.N.Y. 1992) (indictment alleged that defendant's counterfeit checks violated 18 U.S.C. [sections] 513 and, thus, their utterance constituted specified unlawful activity); United States v. Sierra-Garcia, 760 F. Supp. 252, 258 (E.D.N.Y. 1991) (indictment that charged "narcotics distribution" sufficiently pled specified unlawful activity as a discrete act); United States v. Levine, 750 F. Supp. 1433, 1442 (D. Colo. 1990) (violation of 18 U.S.C. [sections] 152 sufficient allegation of specified unlawful activity).

(68.) Section 1956(c)(4) provides:

[T]he term "financial transaction" means (A) a transaction which in any way

or degree affects interstate or foreign commerce (i) involving the movement

of funds by wire or other means, or (ii) involving one or more monetary

instruments, which in any way or degree affects interstate or foreign

commerce, or (iii) involving the transfer of title to any real property,

vehicle, vessel, or aircraft, or (B) a transaction involving the use of a

financial institution which is engaged in, or the activities of which

affect, interstate or foreign commerce in any way or degree.

18 U.S.C. [sections] 1956(c)(4). The term "transaction" is defined to include:

[A] purchase, sale, loan, pledge, gift, transfer, delivery, or other

disposition, and with respect to a financial institution includes a

deposit, withdrawal, transfer between accounts, exchange of currency,

loan, extension of credit, purchase or sale of any stock, bond, certificate

of deposit, or other monetary instrument, use of a safe deposit box, or any

other payment, transfer, or delivery by, through, or to a financial

institution, by whatever means effected.

18 U.S.C. [sections] 1956(c)(3). Section 1957 similarly requires that a "monetary transaction" occur, but defines this term to exclude "any transaction necessary to preserve a person's right to representation as guaranteed by the sixth amendment to the Constitution." 18 U.S.C. [sections] 1957(f)(1).

(69.) See Strafer, supra note 10, at 193 n.233 (citing 18 U.S.C. [sections] 1956(c)(4)). Strafer explains:

[T]he similar term "monetary transaction" utilized in the companion

statute, [1957], was initially limited to "financial institutions" as

defined in the Bank Secrecy Act. However, the 1988 amendments conformed

the definition to [sections] 1956(c)(5) (defining "monetary instruments").

Id. (citations omitted).

(70.) See discussion infra Part III.C.2.

(71.) The four possible specific intents given in [sections] 1956(a)(1)(A)-(B) are: (1) intent to promote the carrying on of specified unlawful activity, (2) intent to engage in a violation of [sections] 7201 or [sections] 7206 of the Internal Revenue Code of 1986, (3) intent to conceal or disguise the nature, the location, the source, the ownership, or the control of the proceeds of specified unlawful activity, and (4) intent to avoid a reporting requirement under State or Federal law. 18 U.S.C. [sections] 1956(a)(1)(A)-(B).

(72.) See H.R. Rep. No. 855, 99th Cong., 2d Sess., pt. 1, at 13 (1986) (listing the types of activity that the committee would consider a financial transaction).

(73.) United States v. Blackman, 904 F.2d 1250, 1257 (8th Cir. 1990).

(74.) United States v. McLamb, 985 F.2d 1284, 1292 (4th Cir. 1993); United States v. Kaufmann, 985 F.2d 884, 889 (7th Cir. 1993).

(75.) United States v. Cancellliere, 69 F.3d 1116, 1120 (11th Cir. 1995).

(76.) United States v. Jackson, 935 F.2d 832, 841 (7th Cir. 1991).

(77.) United States v. Isabel, 945 F.2d 1193, 1201 (1st Cir. 1991).

(78.) United States v. Arditti, 955 F.2d 331, 338 (5th Cir. 1992).

(79.) United States v. Koller, 956 F.2d 1408, 1410-11 (7th Cir. 1992).

(80.) 18 U.S.C. [sections] 1956(c)(3) (1994).

(81.) United States v. Reynolds, 64 F.3d 292, 297 (7th Cir. 1995).

(82.) United States v. Cavalier, 17 F.3d 90, 92 (5th Cir. 1994).

(83.) United States v. Kaufmann, 985 F.2d 884, 892-94 (7th Cir. 1993) (conviction under money laundering statute upheld where the defendant was arrested prior to completion of transaction); United States v. Mclamb, 985 F.2d 1284, 1292 (4th Cir. 1993) (same); United States v. Fuller, 974 F.2d 1474, 1478-79 (5th Cir. 1992) (same).

(84.) See, e.g., United States v. Reed, 77 F.3d 139, 143 (6th Cir. 1996) (arguing that the mere transportation of drug proceeds does not meet the definition of a financial transaction because "[t]here must be a purchase, sale, transfer, delivery, etc.--some disposition of funds."); United States v. Puig-Infante, 19 F.3d 929, 938 (5th Cir. 1994) (same). But see United States v. Dimeck, 24 F.3d 1239, 1246 (10th Cir. 1994) (holding that the mere presence of drug proceeds may constitute a transaction under [sections] 1956(c)(3)). See generally Jimmy Gurule, The Money Laundering Control Act of 1986: Creating a New Federal Offense or Merely Affording Federal Prosecutors an Alternative Means of Punishing Specified Unlawful Activity?, 32 Am. Crim. L. Rev. 823, 834 (1995) (characterizing the 10th circuit's distinction between the mere transportation of proceeds and a financial transaction actionable under [sections] 1956(c)(3) based upon "disposition as tenuous and unpersuasive at best").

(85.) See generally Razzano, supra note 40 (discussing international effect of money laundering crimes and money laundering statutes and proliferation of money laundering statutes in foreign countries).

(86.) The legislative history of [sections] 1956 supports the proposition that each separate transfer constitutes a separate offense. As explained in the Senate Report:

[E]ach transaction involving "dirty money" is intended to be a separate

offense. For example, a drug dealer who takes $1 million in cash from a

drug sale and divides the money into smaller lots and deposits it in 10

different banks (or in 10 different branches of the same bank) on the same

day has committed 10 distinct violations of the new statute. If he then

withdraws some of the money and uses it to purchase a boat or condominium,

he will have committed two more violations, one for the withdrawal and one

for the purchase.

Senate Report, supra note 16, at 12-13; see also United States v. Koller, 956 F.2d 1408, 1411-12 (7th Cir. 1992) (purchase of money order and transfer of money order to probation officer constituted two separate transactions); United States v. Isabel, 945 F.2d 1193, 1201 (1st Cir. 1991) (defendant's payroll check scheme constituted series of financial transactions); United States v. Blackman, 904 F.2d 1250, 1257 (8th Cir. 1990) (citing Senate Report, supra note 16, at 12-13, for the proposition that depositing money in bank and subsequent use of money to purchase a house are two transactions within the scope of the statute), cert. denied, 116 S. Ct. 176 (1995).

(87.) See, e.g., United States v. Smith, 46 F.3d 1223, 1234 (1st Cir.) ("[T]he four money laundering counts were not multiplicitous of each other merely because they flow from a single transaction that took place in a single day.), cert. denied, 116 S. Ct. 176 (1995).

(88.) United States v. Martin, 933 F.2d 609, 611 (8th Cir. 1991); see also United States v. Sierra-Garcia, 760 F. Supp. 252, 256 (E.D.N.Y. 1991) (finding indictment not multiplicitous where offenses charged were set forth in distinct statute sections, stated in the disjunctive, each required unique proof, and legislative history indicated an intent to punish both offenses); but cf. United States v. Hardy, 762 F. Supp. 1403, 1408-10 (D. Haw. 1991) (finding indictment charging two related offenses in one count duplicitous where it fails to allege nexus between transactions).

(89.) 18 U.S.C. [sections] 1956(c)(4).

(90.) See United States v. Kelley, 929 F.2d 582, 586 (10th Cir. 1991) (requirement that money laundering transaction be in or affecting interstate commerce must be met to confer jurisdiction on federal courts but is not essential element of money laundering offense); accord United States v. Kunzman, 54 F.3d 1522, 1527 (10th Cir. 1995) (same); United States v. Lovett, 964 F.2d 1029, 1038 (10th Cir. 1992) (same); cf. United States v. Bell, No. 92-5656, 1993 U.S. App. LEXIS 20841, at *5 (4th Cir. 1993) (beyond proving jurisdiction, an effect on interstate commerce is also an element of the offense "which the government must prove beyond a reasonable doubt").

(91.) Lovett, 964 F.2d at 1038 (minimal effect on interstate commerce sufficient to confer jurisdiction); Kelley, 929 F.2d at 586 (same).

(92.) United States v. Kaufmann, 985 F.2d 884, 892 (7th Cir. 1993).

(93.) United States v. Lucas, 932 F.2d 1210, 1219 (8th Cir. 1991).

(94.) United States v. Peay, 972 F.2d 71, 75 (4th Cir. 1992).

(95.) United States v. Jackson, 983 F.2d 757, 764-65 (7th Cir. 1993).

(96.) United States v. Koller, 956 F.2d 1408, 1410 (7th Cir. 1992).

(97.) United States v. Gallo, 927 F.2d 815, 822-23 (5th Cir. 1991).

(98.) See, e.g., United States v. Grey, 56 F.3d 119, 120 (10th Cir. 1995) (finding that fact that defendant had given video poker manager $200 to "feed the pot" was insufficient to establish "effect on commerce" element of money laundering statute, absent showing particular money used had travelled in interstate commerce).

(99.) 18 U.S.C. [sections] 1956(a)(1).

(100.) Strafer, supra note 10, at 185.

(101.) 18 U.S.C. [sections] 1957(f)(2).

(102.) Strafer, supra note 10, at 183.

(103.) It has been held that the omission of such a definition does not render [sections] 1956 void for vagueness. See, e.g., United States v. McLamb, 985 F.2d 1284, 1291 (4th Cir. 1993) (holding statute not void for vagueness since an ordinary person would be able to recognize the conduct in question is criminal, and there is no obvious danger of arbitrary enforcement); United States v. Kaufmann, 985 F.2d 884, 896 (7th Cir. 1993) (finding statute not void for vagueness since the provisions in question are not ambiguous); Werber, 787 F. Supp. at 358 (finding statute not void for vagueness because "proceeds" is not limited to money); United States v. Gleave, 786 F. Supp. 258, 270 (W.D.N.Y. 1992) (holding term "proceeds" as used in the Money Laundering Control Act is not so vague as to render the Act unconstitutional), remanded on other grounds sub nom., United States v. Knoll, 16 F.3d 1313 (2d Cir.), cert. denied, 115 S. Ct. 574 (1994); United States v. Sierra-Garcia, 760 F. Supp. 252, 258-59 (E.D.N.Y. 1991) (same).

(104.) See, e.g., United States v. Estactio, 64 F.3d 477, 480 (1995) ("A fraudulently obtained line of credit, which results in an artificially inflated bank balance, is within the scope of the term `proceeds' as used in [sections] 1956."), cert. denied, 116 S. Ct. 1356 (1996); Werber, 787 F. Supp at 356 (concluding that automobiles purchased with counterfeit bank cashier's checks were "proceeds" of utterance of the counterfeit checks).

(105.) See, e.g., United States v. Jackson, 983 F.2d 757, 766 (7th Cir. 1993) (sustaining defendant's conviction for money laundering where it was supported by evidence that he engaged in drug transactions around the time that he purchased automobiles for cash); see generally Maura E. Fenningham, Note, A Full Laundering Cycle is Required: Plowing Back the Proceeds to Carry on Crime is the Crime Under 18 U.S.C. [sections] 1956(a)(1)(A)(1), 70 Notre Dame L. Rev. 891, 914 (1995)("Courts do not interpret the statute to require the government to prove that the proceeds were derived from a particular sale of narcotics or a specific activity of a criminal organization.").

(106.) See, e.g., United States v. Blackman, 904 F.2d 1250, 1257 (8th Cir. 1990) (government relied on evidence of the defendant's involvement in drug trafficking and his lack of any legitimate source of income to raise the inference that money wired to Los Angeles and paid to a car dealership represented proceeds from drug distribution).

(107.) See, e.g., Blackman, 904 F.2d at 1257 ("[T]he government cannot rely exclusively on proof that a defendant charged with using proceeds from an unlawful activity has no legitimate source of income.").

(108.) Compare Blackman, 904 F.2d at 1257 ("government cannot rely exclusively on proof that a defendant charged with using proceeds from an unlawful activity has no legitimate source of income[,]" but that lack of regular employment is evidence that should be persuasive to a jury in determining that the funds involved could only have come from an illegal source). with Jackson, 983 F.2d at 766 (holding that government need not trace the proceeds of a particular sale where defendant's conviction for money laundering was supported by evidence that he engaged in drug transactions at about the time that he purchased automobiles with cash); United States v. Webster, 960 F.2d 1301, 1308 (5th Cir. 1992) (finding evidence of a differential between legitimate income and cash outflow sufficient for a money laundering conviction, even when the defendant claimed income from additional sources). But see United States v. McDougald, 990 F.2d 259, 262 (6th Cir. 1993) (holding that government may not assume any money from a drug dealer is drug money, so that suspicious nature of automobile purchase is insufficient to support inference that $10,000 cash was drug money).

(109.) See, e.g., United States v. Marbella, 73 F.3d 1508, 1515 (9th Cir.) ("[U]nder the money laundering statutes, due to the fungibility of money, it is sufficient to prove that the funds in question came from an account in which tainted funds were commingled with other funds."). cert. denied, 116 S. Ct. 1699 (1994); United States v. Johnson, 971 F.2d 562, 570 (10th Cir. 1992) ("[Requiring tracing] would allow individuals to avoid prosecution simply by commingling legitimate funds with proceeds of crime.").

(110.) Strafer, supra note 10, at 186.

(111.) United States v. Starke, 62 F.3d 1374, 1384 (11th Cir. 1995) (sustaining conviction of hotel/restaurant owner who acquired cashier's checks for undercover agents who represented themselves as drug dealers and structured transactions to avoid IRS reporting requirements); United States v. Jenson, 69 F.3d 906, 914 (8th Cir. 1995) (affirming conviction of car salesman who accepted payment represented by undercover agent as the proceeds of illicit activity and structured transaction to avoid IRS reporting requirements); United States v. McLamb, 985 F.2d 1284, 1287 (4th Cir. 1993) (same).

(112.) See, e.g., United States v. Wilson, 77 F.3d 105, 109 (5th Cir. 1996) (holding that by the express terms of the money laundering statute, a design to conceal or disguise the source or nature of the proceeds is a necessary element for a money laundering conviction); United States v. Salcido, 33 F.3d 1244, 146-47 (10th Cir. 1994) (same). Section 1957, by contrast, imposes only a knowledge requirement that the property be the result of some form of criminal conduct. 18 U.S.C. [sections] 1957.

(113.) Finkelstein, supra note 21, at 54.

(114.) See, e.g., United States v. Savage, 67 F.3d 1435, 1440 (9th Cir. 1995) (instructing people to transfer money to Austria to create "aura of legitimacy" sufficient to create circumstantial evidence of intent to promote a fraudulent scheme); Hollenback v. United States, 987 F.2d 1272, 1278-80 (7th Cir. 1993) (irregularly structured transactions calculated to mislead observers as to the size of transactions and actual nature of funds demonstrates intent to conceal or disguise nature, location, or source of the funds); United States v. Cole, 988 F.2d 681, 684-85 (7th Cir. 1993) (payment of "interest" to defrauded investors shows intent to promote a specified unlawful activity); United States v. Jackson, 983 F.2d 757, 767 (7th Cir. 1993) (buying a car with $8,000 cash and five cashiers" checks all purchased on the same day evidences intent to evade reporting requirements); United States v. Saget, 991 F.2d 702, 713 (11th Cir. 1993) (investing drug proceeds in a night club, claiming that the funds are gambling winnings, establishes intent to conceal or disguise); United States v. Cota, 953 F.2d 753, 760 (2d Cir. 1992) ("most telling of [defendant's] intent was the strange manner in which she received and deposited proceeds from the sales"); United States v. Koller, 956 F.2d 1408, 1411 (7th Cir. 1992) (giving false name at bank was sufficient to prove design to conceal or disguise defendant's identity as owner of the money and the came it represented).

(115.) For a discussion of this knowledge requirement, see note 48 supra and accompanying text; see also Strafer, supra note 10, at 172-76 (arguing that [sections] 1956(a)(1)(B) does not contain an intent requirement at all, but rather incorporates only the second knowledge requirement); cf. United States v. Campbell, 977 F.2d 854, 857 (4th Cir. 1992) (government need not prove that the defendant's intent was to conceal or disguise the proceeds of a specified unlawful activity, only that the defendant had knowledge that the funds represented the proceeds of some form of that illegal activity); United States v. Beddow, 957 F.2d 1330, 1334 (6th Cir. 1992) (both knowledge and intent must be proven for [sections] 1956(a)(1)(B) violation); United States v. Gleave, 786 F. Supp. 258, 268-69 (W.D.N.Y. 1992) (showing nexus between knowledge and intent), remanded on other grounds sub nom., United States v. Knoll, 16 F.3d 1313 (2d Cir.), cert. denied, 115 S. Ct. 574 (1994).

(116.) In United States v. Jackson, for example, the court explained that the statute only requires proof that either (1) the transaction was intended to promote continuing criminal enterprise under [sections] 1956(a)(1)(A)(i), or(2) that the transaction was designed to conceal the source of the funds used in the transactions under [sections] 1956(a)(1)(B)(i). 935 F.2d 832, 842 (7th Cir. 1991). But see United States v. Conley, 833 F. Supp. 1121, 1146 n. 17 (W.D. Pa. 1993) ("Notwithstanding the Jackson court's comments, it would appear that the exceptional case would be an open, undisguised transaction intended to promote the carrying on of specified unlawful activity; rarely, then, would a transaction in furtherance of specified unlawful activity not involve an intent to conceal the origin of the reinvested funds."), vacated and remanded on other grounds, 37 F.3d 970 (3d Cir. 1994).

(117.) Jackson, 935 F.2d at 841; see also United States v. Winfield, 997 F.2d 1076, 1079 n.3 (4th Cir. 1993) (Jackson requires the government to prove the defendant's knowledge that the funds involved in the transaction were proceeds of an illegal activity); United States v. Cruz, 993 F.2d 164, 167 (8th Cir. 1993) (citing Jackson as correctly setting forth the elements of a money laundering offense in violation of [sections] 1956(a)(1)(A)(i)).

(118.) Jackson, 935 F.2d at 841; see also United States v. Montoya, 945 F.2d 1068, 1076 (9th Cir. 1991) ("subsections (A)(i) and (B)(i) are set forth in the disjunctive"); United States v. Brown, 944 F.2d 1377, 1387 (7th Cir. 1991) (government required to prove either intent specified under [sections] (A)(i) or [sections] (B)(i), but not both); Cruz, 993 F.2d at 167 (same).

(119.) See, e.g., United States v. Nelson, 66 F.3d 1036, 1041 (9th Cir. 1995) (arguing that to require agents to be specific would make it difficult for undercover agents to enforce [sections] 1956(a)(3)(c), as real criminals, whom undercover agents must imitate, would be unlikely to state explicitly the source of their funds); United States v. Castanedo-Cantu, 20 F.3d 1325, 1332 (5th Cir. 1994) (same); United States v. Arditti, 955 F.2d 331, 339 (5th Cir. 1992) (same); see also United States v. Wydermyer, 51 F.3d 319, 327 (2nd Cir. 1995) (finding undercover officers' indications that money came from arms smuggling sufficient to show that agent represented that funds came from specified unlawful activity); United States v. Kaufmann, 985 F.2d 884, 893 (7th Cir. 1993) (finding undercover agents' representations that a marijuana dealer was interested in buying a Porsche and wanted the car titled in someone else's name, sufficient to satisfy mens rea requirement of money laundering).

(120.) United States v. Perez, 992 F.2d 295, 297 (11th Cir. 1993) (construing United States v. Parramore to mean that the government in a sting operation need only prove the intent requirement of "believe" rather than "know"). But cf. United States v. Barton, 32 F.3d 61, 66-67 (4th Cir. 1994) (criticizing the Perez approach).

(121.) 18 U.S.C. [sections] 1956(a)(1)-(3).

(122.) In United States v. Sanders, 928 F.2d 940 (10th Cir. 1991), for example, the evidence was insufficient to prove intent where the defendants were: (1) present at the purchases of cars which constituted the violative transactions under the statute, (2) identified by salespeople to be present, and (3) conspicuously using the cars (even though one automobile was titled in the couples' daughter's name and Mrs. Sanders had signed her daughter's name to the purchase agreement). The court held that this was "not a typical laundering transaction" and that "the purpose of the money laundering statute is to reach commercial transactions intended (at least in part) to disguise the relationship of the item purchased with the person providing the proceeds and that the proceeds used to make the purchase were obtained from illegal activities." Id. at 946; accord United States v Sanders, 929 F.2d 1466, 1472-73 (10th Cir. 1991) (Sanders 11) (examining the same elements to determine if the defendants' behavior was consistent with concealment of the relationship between the purchased goods and the illegally obtained money).

(123.) In United States v. Sutera, 933 F.2d 641 (8th Cir. 1991), for example, the defendant argued that depositing the proceeds of illegal bookkeeping activity into a restaurant account is not a typical laundering transaction and, therefore, his actions lacked the requisite criminal intent to conceal the funds. Rejecting this argument, the court held that "[w]hile the money might have been better hidden if it had been mixed with restaurant receipts, the money laundering statute does not require the jury to find that Sutera did a good job of laundering the proceeds. The jury simply has to find that Sutera intended to hide [them]." Id. at 648. See also Kaufmann, 985 F.2d at 894 (limiting Sanders 11 to a situation where there is a familial relationship).

(124.) United States v. Ortiz, 738 F. Supp. 1394, 1401 (S.D. Fla. 1990).

(125.) Id. at 1401 (holding that the second knowledge requirement provides that the knowledge must be personal to the defendant, hence dispelling any notions of transferred intent); see also United States v. Awan, 966 F.2d 1415, 1425 (11th Cir. 1992) (quoting Ortiz for the proposition that the application of the statute does not involve transferred intent); United States v. Gleave, 786 F. Supp. 258, 270 (W.D.N.Y. 1992) (Act does not improperly incorporate doctrine of transferred intent as criminal liability depends on proof that defendant, not another individual, knew that proceeds involved in particular transaction stemmed from unlawful activity), remanded on other grounds sub nom., United States v. Knoll, 16 F.3d 1313 (2d Cir.), cert. denied, 115 S. Ct. 574 (1994); but see Strafer, supra note 10, at 162 ("[b]ecause the second `knowledge' requirement of subsection (a)(1)(B) is phrased in the passive voice, it apparently only requires knowledge of someone else's intent--the intent of the person who `designed' the transaction."

(126.) See part III.A. supra (discussing knowledge requirement).

(127.) See, e.g., Gleave, 786 F. Supp. at 267 (W.D.N.Y. 1992) (rejecting a challenge that the knowledge requirement is unconstitutionally vague and saying that allowing use of the doctrine of willful blindness to impute knowledge does not negatively impact the statute's constitutionality); Ortiz, 738 F. Supp. at 1398 (S.D. Fla. 1990) (same). (128.) See United States v. Alford, 999 F.2d 818, 822-823 (5th Cir. 1993) ([sections] 1956 is not unconstitutionally vague as applied to defendant); United States v. Gilliam, 975 F.2d 1050, 1056 (4th Cir. 1992) (same); United States v. Antzoulatos, 962 F.2d 720, 726 (7th Cir. 1992) (same); United States v. Long, 977 F.2d 1264, 1273-1274, (8th Cir. 1992) (same); United States v. Awan, 966 F.2d 1415, 1424-1425 (11th Cir. 1992) (same). In reaching this conclusion, courts have applied the void-for-vagueness test set forth in Kolender v. Lawson, 461 U.S. 352 (1983): "[The] void for vagueness doctrine requires that a penal statute define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement." Id. at 357.

(129.) See, e.g., United States v. Haun, 90 F.3d 1096, 1101 (6th Cir. 1996) (rejecting contention by defendants that the word "proceeds" in [sections] 1956 made the statute unconstitutionally vague); United States v. Griffith, 85 F.3d 284, 288 (7th Cir. 1996) (same); United States v. Estacio, 64 F.3d 477, 480 (9th Cir. 1995) (same); United States v. McLamb, 985 F.2d 1284, 1291 (4th Cir. 1993) ([sections] 1956(c)(7) is not unconstitutionally vague); Awan, 966 F.2d at 1424 ([subsections] 1956(a)(1)(B) and (a)(2)(B) are not unconstitutionally vague). See also discussion infra part III.C. (describing the Courts' broad interpretation of "financial transaction"), part III.D. (illustrating that the absence of a statutory definition of "proceeds" does not make [sections] 1956 void for vagueness), and part III.E. (illustrating that the incorporation of an element of transferred intent does not make [sections] 1956 unconstitutionally vague). See also United States v. Gabriele, 63 F.3d 61, 65 (1st Cir. 1995) (rejecting vagueness challenge to the knowledge requirement as an attempt to second-guess Congress); United States v. Baker, 19 F.3d 605, 614 (11th Cir. 1994) (same).

(130.) The Double Jeopardy Clause of the Fifth Amendment states that no person shall be "subject for the same offence to be twice put in jeopardy of life or limb . . . ." U.S. Const. amend. V.

(131.) 952 F.2d 1206 (10th Cir. 1991).

(132.) Id.

(133.) Id. at 1212-13.

(134.) Id. at 1213. See also United States v. Conley, 833 F. Supp. 1121, 1129-30 (W.D. Pa. 1993) (rejecting claim of double jeopardy in prosecution under [sections] 1956(a)(1)(A)(i) for engaging in a transaction with proceeds from gambling with video poker machines), vacated and remanded on other grounds, 37 F.3d 970 (3d Cir. 1994).

(135.) See Senate Report, supra note 16, at 1-9 (discussing gap in the criminal law with respect to conduct following the crime).

(136.) Edgmon, 952 F.2d at 1214.

(137.) Edgmon, 952 F.2d at 1214; accord United States v. Skinner, 946 F.2d 176, 178 (2d Cir. 1991) (cumulative convictions under the Act and the Travel Act did not violate double jeopardy where Congress intended cumulative punishment under both acts); United States v. Ortiz, 738 E Supp. 1394, 1402 (S.D. Fla. 1990) (defendant may properly be charged with violation of money laundering statute in combination with violation under 31 U.S.C. [subsections] 5316 and 5322).

(138.) See generally United States v. Rude, 88 F.3d 1538, 1546 (9th Cir. 1996) (rejecting defendant's claim that conviction for money laundering and the underlying offense of wire fraud constituted double jeopardy); United States v. Jackson, 983 F.2d 757, 768-69 (7th Cir. 1993) (conviction for both money laundering and structuring of financial transactions does not violate double jeopardy clause); United States v. Hollis, 971 F.2d 1441, 1450-51 (10th Cir. 1992) (conviction for money laundering and underlying specified unlawful activity does not violate double jeopardy clause).

(139.) United States v. Ursery, 116 S. Ct. 2135, 2150 (1996) (finding that because the civil forfeiture applies to property holders even if they are innocent of the predicate crime but merely know of it's involvement with the property, it is not in personam punishment for the criminal offense).

(140.) See 18 U.S.C. [sections] 1956(a) (setting out criminal penalties).

(141.) See 18 U.S.C. [sections] 1956(b) (setting out civil penalties).

(142.) Ursery, 116 S. Ct. at 2150.

(143.) 18 U.S.C. [subsections] 1956(a)(1)-(3). In addition there may be a civil penalty "of not more than the greater of: (1) the value of the property, funds, or monetary instruments involved in the transaction; or (2) $10,000." 18 U.S.C. [sections] 1956(b).

(144.) U.S. Sentencing Guidelines Manual (hereinafter "U.S.S.G.") App. A (1995).

(145.) U.S.S.G. [sections] 2S1.1(a)(1); United States v. Puckett, 61 F.3d 1092, 1096 (4th Cir. 1995).

(146.) U.S.S.G. [sections] 2S1.1(a)(2); see United States v. Harris, No. 94-5426, 1994 WL 140666, at *3 n.2 (4th Cir. Mar. 30, 1995) (applying a tease offense level of 20 to a plea under [sections] 1956(g)), cert. denied, 116 S. Ct. 257 (1995); United States v. Thompson, 40 F.3d 48, 50 (3d Cir. 1994) (base offense level of 20 for violation of [sections] 1956(a)(1)(B)), cert. denied, 115 S. Ct. 1390 (1995).

(147.) U.S.S.G. [sections] 2S1.1(b)(1); see, e.g., United States v. Saccoccia, 58 F.3d 754, 785 (1st Cir. 1995) (increase of three levels warranted where defendant knew or believed funds were proceeds of unlawful narcotic activity), cert. denied, 116 S. Ct. 1322 (1996); Knecht, 55 F.3d at 55-56 (same where defendant "believed the money she was laundering was derived from drug transactions" due to an unsolicited statement made to her by an undercover agent in a sting operation); Puckett, 61 F.3d at 1096 (same); United States v. Carr, 25 F.3d 1194, 1210 (3d Cir. 1994) (same), cert. denied, 115 S. Ct. 742 (1995).

(148.) U.S.S.G. [sections] 2S1.1(b)(2); see United States v. Hurley, 63 F.3d 1,20 (1st Cir. 1995) (base offense level for money laundering conviction is keyed to the value of the laundered funds according to U.S.S.G. [sections] 2S1.1(b)(2)); United States v. Maggi, 44 F.3d 478, 483 (7th Cir. 1995) (same); Thompson, 40 F.3d at 50 (same), cert. denied, 115 S. Ct. 1390 (1995).

(149.) U.S.S.G. [sections] 2S1.1(c). See generally the Organizational Sentencing article in this issue (discussing the application of the Guidelines to organizational defendants).

(150.) Remarks of President Clinton to the United Nations on the Occasion of the 50th Anniversary of the Creation of the United Nations, Fed. News Service, Oct. 22, 1995, available in LEXIS/Nexis News Library, Curnws File. For an in-depth analysis of the international aspects of the Money Laundering Act, see Jimmy Gurule, The Money Laundering Act of 1986: Creating A New Offense or Merely Affording Federal Prosecutors an Alternative Means of Punishing Specified Unlawful Activity?, 32 Am. Crim. L. Rev. 823, 850-853 (1995).

(151.) 18 U.S.C. [subsections] 1957(a), (b)(1)-(2). [sections] 1957 does not specify the limits of the fine which may be imposed.

(152.) U.S.S.G. App. A.

(153.) U.S.S.G. [sections] 2S1.2(a); see United States v. Hare, 49 F.3d 447, 452 (8th Cir.) (U.S.S.G. [sections] 2S1.2(a) provides that the base offense level for money laundering conviction under 18 U.S.C. [sections] 1957 is seventeen), cert. denied, 116 S. Ct. 211 (1995); United States v. LeBlanc, 24 F.3d 340, 343 (1st Cir. 1994) (same).

(154.) U.S.S.G. [sections] 2S1.2(b)(1)(A).

(155.) U.S.S.G. [sections] 2S1.2(b)(1)(B); see 18 U.S.C. [sections] 1956(c)(7) (amended in 1996 by Pub. L. No. 104-132 to include such specified unlawful activities as the manufacture, importation, sale, or distribution of a controlled substance; murder; kidnapping; robbery and extortion; fraud, or any scheme or attempt to defraud, by or against a foreign bank; and any act constituting a continuing criminal enterprise as defined in section 408 of the Controlled Substances Act(21 U.S.C. [sections] 848)).

(156.) U.S.S.G. [sections] 2S1.2(b)(2); United States v. Sokolow, 91 F.3d 396, 411 n.17 (3d Cir. 1996), cert. denied, 117 S. Ct. 960 (1997); United States v. Selby, No. 93-1451, 1994 WL 416262, at *12 (6th Cir. Aug. 8, 1994); United States v. Taylor, 984 F.2d 298, 302 (9th Cir. 1993).

(157.) U.S.S.G. [sections] 2S1.2(c).
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Title Annotation:Twelfth Survey of White Collar Crime
Author:Kaufman, Max; Lewis, Adam; Miller, Bruce
Publication:American Criminal Law Review
Date:Jan 1, 1997
Words:13144
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