4.18.1957 Money Laundering—Engaging in Monetary Transactions in Property

Derived From Specified Unlawful Activity, 18 U.S.C. § 1957 See Statute

[Defendant] is charged with knowingly engaging [or attempting to engage] in a monetary transaction involving more than $10,000 of criminally derived property. It is against federal law to engage in such activity. For you to find [defendant] guilty of this crime, you must be convinced that the government has proven each of the following beyond a reasonable doubt:

First, that [defendant] [deposited; withdrew; exchanged funds] [or attempted to deposit; withdraw; exchange funds] over $10,000 in a financial institution affecting interstate commerce on the date specified;

Second, [he/she] knew that the [money; deposit; etc.] came from some kind of criminal offense;

Third, the [money; deposit; etc.] was in fact criminally derived from [unlawful specified activity]; and

Fourth, the [unlawful specified activity] took place in the United States.

“Affecting interstate commerce” means that the transaction affected commerce in any way or degree; a minimal effect is sufficient [deposit in an FDIC-insured bank is sufficient].

The government does not have to prove that [defendant] knew that the money was derived from the [specified unlawful activity] or that [defendant] committed the [specified unlawful activity]. It is enough that [defendant] had general knowledge that the [money; deposit; etc.] came from some kind of criminal offense.

Comment(s) (s)

(1) The enumeration of the elements of this crime is based on United States v. Benjamin, 252 F.3d 1 (1st Cir. 2001) and United States v. Richard, 234 F.3d 763 (1st Cir. 2000).

(2) “Section 1957(f) only requires that the transactions have a de minimis effect on commerce.” Benjamin, 252 F.3d at 9 (The bank’s certificate of insurance issued by the FDIC, “certifying that the bank is federally insured, suffices to satisfy the requirement that the transactions has at least a minimum impact on interstate commerce.”). The Benjamin court approved an instruction defining monetary transaction as “deposit [etc.] . . . in or affecting interstate or foreign commerce.” Id. at 10. For the district court’s full instruction on the definition of interstate commerce, see id.

(3) Acquittal on the underlying unlawful activity does not preclude a conviction for money laundering. See Richard, 234 F.3d at 768; see also United States v. Whatley, 133 F.3d 601, 605-06 (8th Cir. 1998). Section 1957 money laundering does not require that the defendant committed the underlying offense. Benjamin, 252 F.3d at 7; Richard, 234 F.3d at 768. It also does not require that the defendant know that the money came from specified unlawful activity, only that the defendant knew that the property was criminally derived. Richard, 234 F.3d at 768.

(4) “[G]iving criminally derived checks to a co-conspirator, who deposits them into a bank account, is a transfer to, and involves the use of, a financial institution, which satisfies the definition of ‘monetary transaction’ in section 1957(f)(1). Further, transferring funds to a co-conspirator involves monetary instruments, namely the currency or checks involved, which satisfies section 1956(c)(5).” Richard, 234 F.3d at 768.

(5) If there is a criminal forfeiture count pursuant to 18 U.S.C. § 982(a)(1), see United States v. McGauley, 279 F.3d 62, 75-76 (1st Cir. 2002), for instruction language on “involved” or “traceable” property.