Comment by ncallaway | Hacker News Reader

Comment by ncallaway | Hacker News Reader

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That's completely false. That situation you just described is absolutely not structuring.

Here's the fact pattern that _would_ make you a criminal guilty of structuring:

"You have $16,000 in cash. Knowing that there are reporting events that trigger some additional scrutiny of transactions about $10,000 you deliberately break the deposit into two separate transactions with the purpose of avoiding that scrutiny. As such, you deposit $9,000 in your bank account one day and $7,000 the next".

That's structuring. It requires the intent of avoiding the scrutiny. If you broke your deposits into two transactions for any other reason, it is not against the law.

The definition of structuring is 31 USC § 5324.

> No person shall, for the purpose of evading the reporting requirements of section 5313(a) or 5325 or any regulation prescribed under any such section, the reporting or recordkeeping requirements imposed by any order issued under section 5326, or the recordkeeping requirements imposed by any regulation prescribed under section 21 of the Federal Deposit Insurance Act or section 123 of Public Law 91–508

https://www.law.cornell.edu/uscode/text/31/5324

Good luck proving it was not intended to avoid reporting when the DA decides to make an example of you.

If you do it one time, I suspect you're not going to get dinged for structuring.

If you do it all the time, you'd want to have a pretty solid explanation for why.

So, guilty until proven innocent?

In a criminal context the burden of proof would rest on the prosecution to prove a nefarious purpose.

This is because—as in all criminal cases—we presume innocence and put the burden of proof on the prosecutor.

This isn’t true when the prosecution can bankrupt the defendant by seizing their businesses working capital even before the trial.

This is certainly the standard practice. However, there's a recent case, Luis v. US (2016), challenged on 6th amendment grounds (right to counsel) that permits a Defendant to use funds that have no reasonable connection to the crime. Of course, in practice, they'll seize your assets or restrict your use (via pretrial conditions), and you'll need those funds to engage your attorney to move for the modification in the first place.

That's moving the goalposts. The point upthread was that splitting a single deposit made you "a criminal guilty of structuring".

But yeah, sorta: if you are repeatedly splitting such deposits in exactly the way needed to avoid reporting and scrutiny, and don't have a valid non-structuring explanation, those facts are going to go a long way toward proving intent in the minds of a jury. Would you seriously argue otherwise?

Maybe I structure my deposits because I don’t feel safe carrying $10,000+ to the bank. So five times a week I’m depositing $5k in the bank, until the DA seizes my businesses working capital to put me out of business and you on the jury vote to convict me because my behavior was “repeated”?

Not feeling safe is a valid reason to avoid large physical cash deposits. Many businesses do the same. I doubt a jury would convict.

> Not feeling safe is a valid reason to avoid large physical cash deposits.

It's a reason shared by everyone. It's even true for drug dealers laundering their drug money. If that's a valid reason then who could be charged under this law?

That's the problem with the laws against money laundering. They prohibit things that are perfectly innocuous and done by honest people for legitimate reasons. They give prosecutors something to charge anyone they don't like with, even though thousands of other businesses are doing exactly the same thing without being charged because the prosecutors don't care about them.

It's nothing but an excuse to charge someone with something when you can't prove the thing they're actually supposed to be guilty of.

>It's nothing but an excuse to charge someone with something when you can't prove the thing they're actually supposed to be guilty of

This is exactly it.

If you want to stop a drug dealer, then prove they are dealing drugs, and put them in prison for that.

But it's too hard to prove they're dealing drugs, so create a law that criminalizes something that could potentially help a drug dealer cover his/her tracks, like concealing large transfers from the government. Now all of a sudden a new category of crime has been created that affects far more than drug dealers.

Anti-money-laundering laws are a blunt instrument for fighting crime that restricts the rights of millions of innocent people, in the name of stopping a small population of criminals.

It isn't binary.

Basically yes, the financial system is moving towards more of a whitelisting approach when it comes to cash.

Criminal charges require the DA to prove your intent, not the other way around.

If you want to cry about the lack of due process in civil forfeiture, I will be with you 100%.

Your complaint was about _criminal_ structuring, which puts a significant burden of proof on the prosecutor and not on the defendant

https://www.washingtonpost.com/local/the-irs-seized-59000-fr...

That's civil, not criminal.

> If you want to cry about the lack of due process in civil forfeiture, I will be with you 100

Edit: stike that, I didn't see the guilty plea to structuring. This was a criminal case.

Edit: I will note the fact pattern in the WaPo article _is_ much closer to the one I described above. Kwon was breaking his transactions into smaller deposits to avoid paperwork (which is distinct from scrutiny, but not massively distinct).

The burden of proof argument is also not reached in this case. I doubt the prosecution would have been able to prove that Kwon was actually structuring (given that it seems likely he could establish the distinction of avoiding _paperwork_ and avoiding _scrutiny_ to a jury). Still, this case has no bearing on burden of proof, as it was resolved by a guilty plea.

I agree that this case shows a fairly clear failure of prosecutorial discretion. I don't think it has any relevance towards a burden of proof debate about intent.

Lastly, that was some _really_ bad advice provided by the bank teller. Like...very very bad.

Sorry, I should have quoted the specific parts I was trying to refer to, but I'm on my phone and it is super annoying to do any text operations.

But yes, I was specifically calling out the guy who pled guilty...maybe he just had a bad lawyer, but I would have to assume that he pled guilty because of the fear of god the DA was putting in him regarding this 'structuring'

Yea, I had the same problem. Was on mobile and confused by the multiple cases in the article. I edited after a more thorough reading and better understanding.

I think this case shows more problems with prosecutorial discretion, and the absolute reliance on plea deals in the system—that insanely incentive people to accept plea deals even when innocent.

Don't get me wrong, I think our criminal justice system is broken in a lot of ways. I also think there are lots of overly broad statutes that criminalize normal behavior and leave people exposed to selective prosecution.

All that said, I don't think this particular statute is that problematic.

The Kwon case demonstrates that the government doesn’t have to prove squat. They’ll keep your money and bleed you in court till you fold.

According to an article in the Washington Post[1], the Kwon case resulted in an outcry that caused Congress to change its guidelines, adding the additional requirement that the IRS must show the money in question are the profits of criminal activity. That Kwon hasn't yet received his money back appears to be a bureaucratic problem, not statutory.

Even given all of this, the Kwon case has more to do with the tax court than it does the Federal criminal courts.

I do believe that money laundering laws as currently written are often abused, however I don't think the Kwon case demonstrates what you assert.

[1] https://www.washingtonpost.com/local/the-irs-seized-59000-fr...

You, uh, understand how the burden of proof works in criminal cases under US law, right?

That doesn’t make me any less concerned. I’ve read about enough DOJ fuckery over the last 20+ years that when I see assertions like yours I have to add “ostensibly”.

There are plenty of cases near and dear to HN’s heart where the consensus is DOJ did wrong things. I don’t understand how we can simultaneously act like it’s safe to rely on the prosecution’s need to prove intent.

Sure, but that's an argument for reforming those parts of our criminal justice system.

Literally every law that includes intent as a component—which I would argue should be almost all of them—rely on the prosecution's need to prove intent.

The fact that the criminal justice system is broken doesn't mean this statute is broken. If we're going to throw out this statute because it depends on the prosecutor's ability to prove intent, I guess that means we need to throw out all of the criminal statutes.

Totally agree about prosecutorial fuckery (though, I wouldn't contain it to just the DOJ, plenty of state level prosecutorial fuckery). I just don't see how that shows that money laundering or structuring statutes themselves are the problem.

I’d be less strident if the government was required to return all seized property and pay all legal fees and damages in cases it lost, so at least we can attempt to make the citizen whole again.

Sure, but again, that seems like a complaint across the entire criminal justice system—and not specific to this statute or money laundering statutes.

I think your problem is more with the criminal justice system (which I agree is broken in systematic ways) than with these particular laws. These complaints could be directed at the abuse of any number of reasonable laws on the books.

What prevents the citizen from recovering those things in a civil suit against the police, federal government, etc?

That's easy to do, just declare it as income on your 1040 and pay your taxes.

That didn’t help Kwon.

Wow, that's totally fucked up. Apparently it is now illegal to structure even if you are not evading any law:

https://www.washingtonpost.com/news/the-watch/wp/2014/03/24/...

And supporters of these kinds of laws, whether it be anti-money-laundering-laws, or anti-sex-trafficking laws like FOSTA, show no consideration for the general pattern of unintended consequences that stem from undermining particular legal principles.

I'm going to assume that most of these comments have absolutely no experience with the Federal System. I've had multiple clients encounter absurd (Federal) money laundering charges (18 US 1956). Proving application of complex laws belies the fact that the audience you must prove them before is (usually) made up of the average citizen (bench trials notwithstanding). Prosecutorial misconduct (from questionable charges to overcharging to Giglio violations to misstatements in court) is so rampant as to be an epidemic. Recently I had a client charged with money laundering, because after completing a project moved money from his (solely owned) software firm account to his personal account, paid taxes on it, and then moved (a similar amount) back a few months later to cover cashflow beginning the next project. This combination transaction absent no other fact pattern was apparently sufficient. And don't forget that in the civil system you routinely throw out facially insufficient cases [12(b)6], however, this is essentially non-existent in the Federal System. For one, judges never throw out indictments. I can count the number of I've seen one thrown out. Second, you only invite the prosecution to craft a new one. Lastly, once you move to trial you're hardly up against a rigid legal framework; certainly not in the minds of jurors. Federal Court is a theatre, and the play is 100% emotional. This is by design. During voire dire, the prosecution will not intentionally leave anyone will subject matter expertise or much legal experience in that box. Leaving you to win an emotional game if you can, or leaving you with a Rule 29 or an appeal. If they want you, they'll probably get you (99.8% Federal conviction rate). The object lesson is that you should avoid even the remotest question of impropriety or misconduct even avoiding completely innocent conduct that you could be used against you in the hands of malicious prosecution. It happens every day.

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