As The above statutes and regulations are those a footnote makes clear, the use of the above-cited statutes is not limited to money laundering related to narcotics violations: While this chapter does not deal directly with B. Creation of New Offense - Facilitating an Offense The Administration's proposed money laundering bill would create a new crime of "Facilitation" by adding an additional subsection to Title 18, U.S.c. § 2, the Aiding and Abetting Statute. The proposed new subsection is as follows: (c) Whoever knowingly facilitates the commis- in The Section is opposed to the creation of this new offense. The proposed new crime of facilitation is a statute of broad general applicability not limited to money laundering violations. The need for such a broad new statute has not been demonstrated. The Honorable Jay B. Stephens, Associate Deputy Attorney General stated, testimony before the Committee on the Judiciary, Subcommittee on Crime, on July 24, 1985, that this new statute was needed to reach the situation where an individual, for a fee, took currency that he knew was derived from a drug transaction and exchanges it for cashier's checks which he then returns to the drug dealer. No new statute is needed to deal with this situation. This situation can easily and successfully be prosecuted under existing federal law. Both the conspiracy statute (18 U.S.C. § 371) and the aiding and abetting statute (18 U.S.C. § 2) are applicable to this situation. The Section also opposes enactment of this new statute because it is designed to inflict criminal punishment upon conduct that does not rise to the level of purposeful assistance required in the aiding and abetting statute. The proposed facilitation offense is a dangerous departure from the well established concepts of both legislation and case law which have recognized that knowledge of the commission of a crime, coupled with association with the criminal is not a sufficient basis for a criminal conviction. See, United States v. Roberts, 619 F.2d 379, 383 (5th Cir., 1980). C. Amendments to Statutes and Rules of Criminal 1. Amendment to Rule 17 (c), Federal Rules The Administration bills would amend Rule 17, Federal Rules of Criminal Procedure, to expressly authorize a District Court, upon application of the government, to order a person to whom a subpoena is directed not to notify anyone of the existence of the subpoena for a specified period of time. Since this provision would be added only to subsection (c) of Rule 17, it should apply only to subpoenas duces tecum, but not to subpoenas (governed by subsection [a]) solely for the attendance of witnesses. This limitation was clearly intended by the drafter of the bill, as reflected in the further provision that the order be issued only if the court determines that "there is reason to believe that the books, records, documents, or other objects designated in the subpoena are relevant to a legitimate law enforcement proceeding (Emphasis added). The court must also determine that there is "reason to believe" that notice to others of the existence of the subpoena would endanger any person, or result in flight, destruction of evidence or intimidation of witnesses, or otherwise impair the investigation or trial. The Section believes that while it is appropriate in certain limited cases to order a grand jury subpoena respondent not to disclose the existence of a subpoena to a putative defendant, the proposed legislation is much broader than required to achieve this goal and potentially could infringe on substantial rights of both the putative defendant and the subpoena respondent. The Administration bill would direct the subpoena respondent "not to notify any other person of the existence of the subpoena." Under this proposed statute, a witness would be prohibited from even consulting his own attorney regarding the subpoena. The Section is of the opinion that the prohibition against a witness consulting with his counsel regarding the subpoena is unconstitutional and a violation of the fundamental rights of the witness. The Section is opposed to any nondisclosure statute which burdens either the accused or the witness's right to counsel. Although a nondisclosure order is most likely to be sought at the grand jury stage, the proposed amendment is not so limited, and could be invoked to bar disclosure of trial subpoenas as well. The Section believes that the imposition of a nondisclosure order with respect to a trial subpoena in any but the most extraordinary circumstances would unfairly hamper a defendant's ability to prepare a defense and confront the witnesses against him. The Section is opposed to any nondisclosure statute which is applicable to trial subpoenas. Entry of a nondisclosure order seriously impairs the ability of a defendant to prepare his defense. Even in the grand jury stage of criminal proceeding, it is necessary for a putative defendant to be preparing his defense. In complex criminal cases, it is, as a practical matter, essential that the defense preparation begin during the grand jury stages because the time limitations imposed by the Speedy Trial Act make it impossible to prepare the defense between indictment and trial. In most cases, the putative defendant is also offered the opportunity to testify and present his defense to the grand jury. Knowledge of the case and evidence is essential if the putative defendant is to make an intelligent choice of whether to testify or not testify. Consequently, the Section opposes the proposed amendment to Rule 17 (c). 2. Amendments to the Right to Financial Privacy Act Subsection 3 (f) of the Administration Bill deletes a provision in the Right to Financial Privacy Act that requires that financial records obtained from a customer from a financial institution pursuant to a grand jury subpoena must be returned and actually presented to the grand jury. The purpose of this provision according to the Administration's line-by-line analysis is that this unique requirement for physical presentation of documents to the grand jury is burdensome and costly. It also states that it serves no legitimate privacy interest because other provisions in the Right to Financial Privacy Act regarding grand jury records and Rule 6 of the Federal Rules of Criminal Procedure adequately protect unauthorized use of the subpoenaed records. The Section opposes the enactment of Subsection 3 (f) of the Adminstration Bill. The use of grand jury subpoenas and judicial process to obtain records for the use of prosecutors and investigative agencies is a well recognized abuse which has been condemned by the courts. See, United States v. Thomas, 320 F. Supp. 527, 530 (D.D.C, 1970) (prosecutor ordered to cease sending to prospective witnesses before the trial date any form which includes the word 'Summons' or any derivative thereof or which in its format and language resembles an official judicial subpoena or similar judicial process or which conveys the impression that non-appearance is subject to sanction ."). It has also been held improper for a prosecutor to arrange for the issuance of a proper subpoena for the sole purpose of interviewing a witness personally. See, e.g., In re Lopreato, 511 F.2d 1150 (1st Cir., 1975); Durbin v. United States, 221 F.2d 520 (D.C. Cir., 1954). The grand jury is the constitutionally created independent body which stands between the accusing government and the citizen. Enactment of legislation which suggests that the grand jury process can be used for other than grand jury purposes degrades the legitimate function of the grand jury and turns it into an arm of the prosecution. Section 8 of the Administration Bill would create a new offense "Receiving Proceeds of a Crime." The proposed statute is as follows: Whoever receives, possesses, conceals, or disposes of, any money or other property which has been obtained or attempts to receive, possess, conceal, or dispose of, any money or other property which has been obtained in connection with a violation of any law of the United States for which the punishment may extend to imprisonment for more than one year; or brings or transfers into the United States any money or other property which has been obtained in connection with the violation of any law of a foreign country concerning the manufacuture, distribution, or any other form of trafficking in any substance listed in the current schedules of controlled substances established pursuant to Section 202 of the Controlled Substance Act (21 U.S.C. 812) for which the punishment under the law of the foreign country may extend to imprisonment for a period of more than one year, knowing or believing the same to be money or property which has been obtained in violation of law, shall be imprisoned for not more than ten years, or fined not more than $250,000 or both. The Section is opposed to the enactment of the new statute dealing with receiving the proceeds of a crime. The Section specifically objects to the mens rea standard of the bill, "knowing or believing the same" to be property obtained in violation of law. This statute would allow conviction on the impossibly subjective test of the "belief" of an accused, a standard which invites the conviction of the innocent. The Section is also opposed to the enactment of the new offense of Receiving the Proceeds of a Crime as presently drafted because of its likely infringement upon the Sixth Amendment right to counsel. Under the proposed legislation, it is unlikely that an attorney could accept a fee from a client who had possibly engaged in criminal activity. Under the impossibly subjective standard of believing, any attorney could be accused of a felony merely on the basis of his receipt of fees from a client with the only issue at trial being what the attorney believed about the source of the client's money. Consequently, the right to the defense by counsel of one's choice will effectively be destroyed by enactment of this legislation. |