Kent Hovind on "structuring"!

[wserra]

I would agree as well.

Citation?

I still think some of y'all are wrong.

I think the law and regulations make it clear that one transaction, which could be less than $10,000 and intended to evade the reporting rules, can represent one violation justifying one charge and one conviction.

See:

31 CRF (sic) 103.11

Title 31: Money and Finance: Treasury

Subtitle B: Regulations Relating to Money and Finance

PART 103: FINANCIAL RECORDKEEPING AND REPORTING OF CURRENCY AND FOREIGN TRANSACTIONS

Subpart A: Definitions

103.11 - Meaning of terms.

(excerpts)

(gg) Structure (structuring).

For purposes of section 103.53

31 CFR 103.53 is entitled "Availability of information", not "Counts of indictments".

Try this one:

Nall made three deposits at the same bank, Sunwest, over the course of nine days. The source of each deposit was the same lump sum of some $24,000 (or $26,000) which McIntosh had paid to Nall. Each of these three deposits was charged in a separate count, identical except for the date of the deposit. We are convinced that the government has improperly charged one structuring violation of 31 U.S.C. § 5324(3) by multiplicitous counts. As in Dashney and Davenport, Nall committed one structuring violation respecting the $26,000 lump sum payment, comprised of these three individual deposits, and there should have been only one structuring count addressing the 1989 cash deposits made on June 9, June 12, and June 15, 1989 for, respectively, $9,000, $9,000, and $6,000. Therefore, we uphold the conviction on Count II but vacate the convictions on Counts III and IV

United States v. Nall, 949 F.2d 301 (10th Cir. 1991) (emphasis supplied).

[Paths of the Sea]

Citation?

Well, if you are talking to me and you haven't figured it out yet, how about this one:

---------------------------------

Title 31 USC 5324 (a)(3)

31 USC § 5324 - Structuring transactions to evade reporting requirement prohibited

(a) Domestic Coin and Currency Transactions Involving Financial Institutions.—

No person shall...

(3) structure or assist in structuring, or attempt to structure or assist in structuring, any transaction with one or more domestic financial institutions.

-----------------------------------------------

Get it?

"ANY TRANSACTION"!

That includes a "SINGULAR" transaction.

Your example fails because in that case a sum of over $10,000 was split up into three transactions. I can see where that could be considered one structuring violation.

In Hovind's case, there were 45 "SINGULAR" sums designed to evade the reporting rules.

I suppose you could argue that is a facts and circumstances issue and Kent lost that issue.

KENT HOVIND DID NOT, NOT, NOT PUT ON A DEFENSE!

Sincerely,
Maury Enthusiast!

[Paths of the Sea]

See the following:

http://www.forbes.com/sites/peterjreill ... nt-hovind/

[notorial dissent]

There is no way to evade the reporting requirements with one transaction. If the transaction is for less than $10,000, there is no reporting requirement to evade. If the transaction is for $10,000 or more, it's going to be reported, so the requirement has not been evaded.

Have to disagree with you here, please see the the reg I posted previously. That and "any" large cash WITHDRAWAL is generally suspect, and reportable, that is why it is called structuring, as in the attempt to avoid the magic $10k number and being automatically reported.

If Dr D had 45 CASH withdrawals in a 3 month period of $95-9600, he was attempting to game the system, and each of those withdrawals would have/should have been reported, and according to what we were told at the bank, each would have been one incident.

The law refers to large WITHDRAWALS of cash or to transfers that are within close proximity to large deposits.

[JamesVincent]

The law refers to large WITHDRAWALS of cash or to transfers that are within close proximity to large deposits.[/color][/b]

Isn't the whole point to avoid the reporting of a large sum of money moving though? If you had $100k in the bank and moved it in $9k increment to avoid the $100k being reported as withdrawn, isn't the crime your committing actually about the $100k, since that is what the structure was to remove? Not about the withdrawals themselves?

[notorial dissent]

The whole point of the "structuring" law is to catch people trying to move large sums of CASH. The "official" reporting amount is $10k, when in fact, as little as $3k or multiple large cash withdrawals will trigger it. The moving of smaller amounts to avoid the $10k threshold is the key element in the "structuring" violation. The actual crime is the attempt to avoid hitting the threshold for reporting.

[wserra]

Well, if you are talking to me and you haven't figured it out yet, how about this one:

---------------------------------

Title 31 USC 5324 (a)(3)

Having actually defended structuring cases, I think I've "figured out" the statute. It doesn't answer the question as to whether each smurf is a separate crime. If it did, there would be no need for the court cases interpreting it.

Your example fails because in that case a sum of over $10,000 was split up into three transactions. I can see where that could be considered one structuring violation.

So? As you say - and as I said above as well - the resolution of the issue may depend on the facts of Hovind's case, with which I am not familiar. But the rule is that each smurf is not necessarily a separate crime.

Don't like Nall? How about United States v. Davenport, 929 F.2d 1169 (7th Cir. 1991):

There was one structuring, one violation. The government's position leads to the weird result that if a defendant receives $10,000 and splits it up into 100 deposits he is ten times guiltier than a defendant who splits up the same amount into ten deposits. It could, we suppose, be argued--though the government does not in fact argue--that the more deposits a defendant makes, the smaller each one is likely to be, and that the smaller the individual deposit the less likely the bank is to aggregate them. But against this it can be argued with equal plausibility that a proliferation of deposits increases the probability of apprehension and punishment, by creating a thicker paper trail and reinforcing an inference of evil intent. Unable as we are to say that a defendant's conduct is more dangerous the greater the number of deposits, we are unable to construct any rationale for the government's position.

Or United States v. Handakas, 286 F.3d 92 (2d Cir. 2002), overruled on other grounds by United States v. Rybicki, 354 F.3d 124 (2nd Cir. 2003):

The drawing of each check cannot constitute an “allowable unit of prosecution,” because “the structuring itself, and not the individual deposit, is the unit of crime.” [Citations omitted.] Each and every structuring offense, by nature, entails multiple transfers of funds in amounts small enough to avoid detection. Ratzlaf, 510 U.S. at 136, 114 S.Ct. 655 (defining the structuring of transactions as the “break[ing] up [of] a single transaction above the reporting threshold into two or more separate transactions”); United States v. Scanio, 900 F.2d 485, 488 (2d Cir.1990) (“[P]ersons ... ‘structure’ their currency transactions ... [by] engag[ing] in multiple transactions each involving slightly under $10,000 [so] as to avoid triggering the financial institutions' filing obligations.”), overruled on other grounds by Peck v. United States, 73 F.3d 1220 (2d Cir.1995). Accordingly, the number of structuring offenses (i.e., “units of prosecution”) is not determined by the number of fractional, sub-liminal transactions made for concealment. [Citations omitted.]

Because we find no precedential or statutory support for the multiple structuring charges, conviction on two separate counts constituted an “error” that is “plain.”

Why do you take this so personally?

[wserra]

Dr. Dino has a point, but it is relevant only to the length of his sentence, not to his conviction.

And maybe not even to the length of the sentence. It's not uncommon to see a Circuit reverse a couple of counts in a multiple-count conviction, remand for resentence, and the defendant emerge with exactly the same sentence. Which the Circuit than affirms.

[Paths of the Sea]

Why do you take this so personally?

It is personal, in a sense.

I think it's kinda neat when I can best the experts like you on such a simple matter.

Too bad you could not have gotten involved earlier when Kent Hovind might have had a chance to reduce the charges.

Till then, I win, and Kent Hovind's case is my defense and precedent for my position which is consistent with the plain reading of the law, the regulations, judge's instructions (i.e., that one transaction can be sufficient for one charge of structuring), and the jury verdict.

Maybe more later as to your other comments and analysis.

Sincerely,
Maury Enthusiast!

[darling]

Nall committed one structuring violation respecting the $26,000 lump sum payment, comprised of these three individual deposits, and there should have been only one structuring count

So, if I understand, if I give you $475,000 cash, and you pay it into the bank in 50 installments of $9,500, then it should be only one structuring count. After all, if you pay the $475,000 into the bank in one lump sum it would have generated one transaction report. Since you only avoided one report, you only 'structured' one transaction. That makes sense to me.

In Hovind's case there (probably) wasn't one lump sum, it was more like a business, with regular income and regular expenses (such as wages). Here, each deposit/withdrawal could be designed to avoid triggering a report. With $11,000 income in one week, one deposit of $9,500 may be enough to structure. Or with employee expenses of $11,000 one withdrawal of $9,500 may also be enough to structure.

[Paths of the Sea]

Having actually defended structuring cases,
I think I've "figured out" the statute.

Looks like you haven't if you are trying to argue that Hovind's 45 cash transactions could not justify 45 charges.

It doesn't answer the question as to whether
each smurf is a separate crime. If it did,
there would be no need for the court cases
interpreting it.

That sounds more like my position now, only we don't really need court cases to further establish that one transaction can be one violation.

Court cases may be needed to establish, given fact sensitive issues, whether or not, in a particular case, whether the violation involved one or more than one transaction.

The resolution of the issue may depend on the
facts of Hovind's case, with which I am not
familiar. But the rule is that each smurf is
not necessarily a separate crime.

It would have been easier for you to just admit explicitly that I was right all along in proposing that one transaction can be one violation.

How about United States v. Davenport...

Yeah, how about Davenport.

So the judge, as you quote, didn't explain it very well.

If you evade the rule by breaking down a $10,000 amount into smaller, multiple amounts, that can be one violation involving the multiple transactions.

If you evade the rule 45 times by withdrawing cash each time in amounts less than $10,000, that's 45 violations.

Facts and circumstances, but the law is clear enough; so thought the judge and jury in the Hovind case and so think I.

Or Handakas...

The judge there, if you quoted correctly, could also have explained it better had he known we were going to be chatting about it.

As he states, though, "the structuring itself, and not the individual deposit, is the unit of the crime".

In Hovind's case, however, the structuring and the singular withdrawal were one and the same and a violation that occurred 45 times over the period of a year.

Where the judge states, "each and every structuring offense, by nature, entails multiple transfers of funds in amounts small enough to avoid detection", he just gets it wrong except as he may be limiting his consideration to the case before him.

And then returning to your final question:

Why do you take this so personally?

It helps pass the time also. An important part of the game is to see who wins and who loses and the crowd usually likes to see a "David" once in awhile show up to take down the "Goliath".

I could be wrong, but I, the "David" in the present game, have outdone the "Goliaths" who dared to challenge little ol' me.

I could be wrong, but as long as the law says "one is enough", and the regulations say "one is enough", and the judge's instructions in the Hovind case indicate "one is enough", and the jury in the Hovind case said "45 and not between one and 22", and no Court has ruled otherwise, then I am going to take my victory; a personal victory.

Of course, I could be wrong, right?

So, I press my case, claim my victory, and try to provoke "Goliath" to knock me off my victory perch.

Sweet!

Sincerely,
Maury Enthusiast!

[Paths of the Sea]

Wserra, et al,

I suppose, if there was any serious, reasonable doubt as to my opinion on the matter, it would be appropriate to ask that the opposition come up with some cases subsequent to Hovind that cite Hovind and claim the Hovind decision was wrong.

Maybe if there ever was any doubt, historically, about whether or not a single transaction could constitute a single charge, the Hovind case resolved it while a lot of folks weren't paying attention; pending a more authoritative decision on the matter, of course.

Sincerely,
Maury Enthusiast!

[The Observer]

It is personal, in a sense.

I think it's kinda neat when I can best the experts like you on such a simple matter.

But that isn't the purpose of the site. Quatloos is not a forum for people to wander in and take potshots at the "experts". The law, as precise as it may be, is still an area where a certain amount of subjectivity and interpretation are taken into rulings. Thus on any given day, an "expert" can find themself on the wrong side of a judge's or appellate court's ruling through no fault of their own. And they don't keep score - as you seem intent on doing. Nor do we keep score here. We have all been wrong at one time or another about what the law says or does, but we don't go around lording it around on each other. Instead the response is one of "thanks, I have learned something here." It would behoove you to be gracious in your attitude.

Too bad you could not have gotten involved earlier when Kent Hovind might have had a chance to reduce the charges.

Why should any of us gotten "involved" in this case? Your sarcastic response aside, this is not a situation that requires anyone to get involved other than the relevant parties. And it does not stop wes from making an intelligent response based on his years as a trial lawyer.

Till then, I win, and Kent Hovind's case is my defense and precedent for my position which is consistent with the plain reading of the law, the regulations, judge's instructions (i.e., that one transaction can be sufficient for one charge of structuring), and the jury verdict.

This is just a childish response and one without respect or regard for the participants here. It is indeed just another indicator that this whole Hovind issue is a personal one for you. Your participation on this site has always focused on the Hovind case; you have never in my memory have ever contributed to any of the other cases and issues that have been discussed here. You have chastened us for not going to the Hovind trial and reporting on it, yet for all of your interest in this man, you yourself did not make the effort to the do the same. And even though participants here have been generally supportive of your posts and topics on Hovind, it is evident that you cannot or will not do the same when it becomes your turn to do so. An open-minded person would at least be polite to their opposition, no matter how much they differ in their opinion. This whole exercise has become merely axe-grinding on your part. Your attitude and pursuit of Hovind reminds me of Inspector Javert. Hovind has gotten his day in court and his justice as well as The People. At some point you need to understand and accept that and move on instead of looking to insult others on your crusade.

Yet you only see your recent posts as "part of the game." Quatloos has never been a game, in my viewpoint -it exists for the purpose of exposing scams and scamsters. If your intent here is to just keep score for you personally, then you really need to move on and find another site where that kind of thing is accepted.

[Gregg]

As a layman, I can see both sides here. Were I on the jury, and Wes were defending the case, I'm pretty sure that he would have convinced me that there may not have been 45 counts, but the guy is still guilty. Maybe Hovind might have a case that could have been remanded on appeal had a better lawyer argued it. (was he pro se by any chance?)

As I understand it, and correct me if I'm wrong, he has been convicted and his appeal failed. If that is indeed true, and assuming that the SCOTUS doesn't accept the case, for Hovind at least it's settled law.

[Quixote]

There is no way to evade the reporting requirements with one transaction. If the transaction is for less than $10,000, there is no reporting requirement to evade. If the transaction is for $10,000 or more, it's going to be reported, so the requirement has not been evaded.

Have to disagree with you here, please see the the reg I posted previously. That and "any" large cash WITHDRAWAL is generally suspect, and reportable, that is why it is called structuring, as in the attempt to avoid the magic $10k number and being automatically reported.

If Dr D had 45 CASH withdrawals in a 3 month period of $95-9600, he was attempting to game the system, and each of those withdrawals would have/should have been reported, and according to what we were told at the bank, each would have been one incident.

The law refers to large WITHDRAWALS of cash or to transfers that are within close proximity to large deposits.

The fact that some bank has a policy of filing a SAR for each $9,500 withdrawal has no bearing on whether or not that withdrawal is an incidence of structuring. An incident for purposes of a SAR is one data point in determining if structuring is occurring. It is not, by itself, structuring. I stil don't see how an isolated $9,500 transaction can be structuring. There is no reporting requirement to evade.

Maybe it's the concept of evasion that we disagree about. Suppose I'm shopping for a used car for my nephew. I narrow my search to two cars, one that sells for $9,500 and one that sells for $10,500. I decide on the $9,500 car. One factor I took into account in my decision is that I don't want the potential inconvenience that a CTR report can create in the hands of the IRS's underreporter unit. I take $9,500 in cash out of my checking account. Have I structured? I don't think so, but some here seem to think my intentional avoidance of the filing of a CTR makes me guilty of structuring.

[Paths of the Sea]

(was he pro se by any chance?)

He got the representation he wanted, including Jerold W. Barringer, and then later tried to claim ineffectiveness of counsel.

Didn't work!

Barringer continues as his official, U.S. Tax Court representative. Hovind appears to be possibly trying to set up the same stunt as to his Tax Court case. He claimed the other day that he was unaware that he had a January 30, 2013 deadline to respond to the Government's motion for entry of decision that was filed after Barringer failed to properly prosecute the case on behalf of Hovind.

Sincerely,
Maury Enthusiast!

[Quixote]

31 CFR 103.53 is entitled "Availability of information", not "Counts of indictments".

31 CFR was restructured (pun intended) in 2011. 31 CFR 103.11(gg) is now 31 CFR 1010.100(xx). Nothing in it or 31 CFR 1010.314 resolves the question, but the examples support the courts' interpretations.

(xx) Structure (structuring). For purposes of § 1010.314, a person structures a transaction if that person, acting alone, or in conjunction with, or on behalf of, other persons, conducts or attempts to conduct one or more transactions in currency, in any amount, at one or more financial institutions, on one or more days, in any manner, for the purpose of evading the reporting requirements under §§ 1010.311, 1010.313, 1020.315, 1021.311 and 1021.313 of this chapter. “In any manner” includes, but is not limited to, the breaking down of a single sum of currency exceeding $10,000 into smaller sums, including sums at or below $10,000, or the conduct of a transaction, or series of currency transactions at or below $10,000. The transaction or transactions need not exceed the $10,000 reporting threshold at any single financial institution on any single day in order to constitute structuring within the meaning of this definition.

31 CFR 1010.100(xx)

§ 1010.314 Structured transactions.
No person shall for the purpose of evading the transactions in currency reporting requirements of this chapter with respect to such transaction:

(a) Cause or attempt to cause a domestic financial institution to fail to file a report required under the transactions in currency reporting requirements of this chapter;

(b) Cause or attempt to cause a domestic financial institution to file a report required under the transactions in currency reporting requirements of this chapter that contains a material omission or misstatement of fact; or

(c) Structure (as that term is defined in § 1010.100(xx)) or assist in structuring, or attempt to structure or assist in structuring, any transaction with one or more domestic financial institutions.

31 CFR 1010.314

[Paths of the Sea]

I still don't see how an isolated $9,500 transaction can
be structuring. There is no reporting requirement to evade.

Maybe this will help:

---------------------------------------------

Title 31 USC 5324 (a)(3)

31 USC § 5324 - Structuring transactions to evade
reporting requirement prohibited

(a) Domestic Coin and Currency Transactions Involving
Financial Institutions.—

No person shall, for the purpose of evading the
reporting requirements.....

-----------------------------------------------

In the Hovind case the jury concluded that the purpose of each of the 45 transactions was evasion.

Obviously, the transaction standing alone is not enough to constitute the crime of "structuring".

Sincerely,
Maury Enthusiast!

[Paths of the Sea]

But that isn't the purpose of the site.

Instead the response is one of

> "thanks,
> I have learned something here."

Observer,

I consider it a side effect, and duly and appropriately noted.

I would certainly have been content, and it would have been most appropriate, if the higher and mightier than I that populate this site, had simply requited my efforts here with a,

> "Thanks,
> We have learned something here."

You are welcome.

From the responses, it appears my little ministry here on the subject was appropriate and profitable for some.

Others may require more help than I am qualified to provide.

Sincerely,
Maury Enthusiast!

[darling]

Maybe it's the concept of evasion that we disagree about. Suppose I'm shopping for a used car for my nephew. I narrow my search to two cars, one that sells for $9,500 and one that sells for $10,500. I decide on the $9,500 car. One factor I took into account in my decision is that I don't want the potential inconvenience that a CTR report can create in the hands of the IRS's underreporter unit. I take $9,500 in cash out of my checking account. Have I structured? I don't think so, but some here seem to think my intentional avoidance of the filing of a CTR makes me guilty of structuring.

If you're only buying the $9,500 car, then you're not structuring because the total amount of your transaction is under $10,000. You have the intent of wanting to avoid a CTR, but you're below the reporting threshold so that's irrelevant.

If you bought the $10,500 car, and only taken out $9,500 solely because you want to avoid a CTR, then you've structured - arguably at least. That assumes the prosecution (a) can prove your intent; and (b) can be bothered.

(Good defenses would be "I already had $1,000 in cash" or "I only had $9,500 in the bank.")