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Attorney General dealing specifically with money laundering.
Entitled The Cash Connection: Organized Crime, Financial Institutions, and Money Laundering, the report graphically illustrated the problem and set out draft legislation designed to deal with it. The suggested legislation contained a new money laundering offense in Title 18, amendments to the Currency and Foreign Transactions Reporting Act in Title 31, and Amendments to the Right to Financial Privacy Act located in Title 12. 1/
The Department of Justice and the Treasury Department have
thoroughly reviewed the proposals drafted by the Commission on Organized Crime and analyzed them in light of our experiences in investigating and prosecuting money laundering cases around the
country. While the recommendations of the Commission provided an
excellent starting point, we concluded that modifications and
refinements were needed in a number of areas, and that certain
additional provisions and offenses not discussed by the
Commission would also be of great assistance in combatting money
launderers. A bill was then prepared by the Departments of
Justice and Treasury which in our judgement represents the most
1/ The Commission recommended other measures, such as a new bank Bribery statute and an amendment of the federal wiretapping statute (18 U.S.C. 2510 et seg.) to allow law enforcement authorities to seek court orders authorizing the interception of communications involving criminal violations of the Currency and Foreign Transactions Reporting Act, which were enacted as part of the comprehensive Crime control Act of 1984 (P.L. 98-473). Moreover, a number of its recommended amendments to the currency and Foreign Transactions Reporting Act, such as greatly increased fine levels and the addition of an attempt provision, were also enacted as part of the Comprehensive Crime Control Act.
effective legislative response to the money laundering problem.
Our proposed bill was introduced in the House as H.R. 2785.
In that bill we agree with the Commission that a new offense
dealing specifically with money laundering is needed in Title 18
of the United States Code.
As the Committee knows, at the
present time we do not have such a statute and most prosecutions
for this offense are brought under the Bank Secrecy Act
provisions in Title 31 that require the filing of various reports concerning certain monetary transactions with financial
institutions and which punish the failure to file the reports or
ticket dealers known as "acaparadores." The gist of the scheme
was that the "acaparadores" would buy winning lottery tickets
from legitimate winners of the Puerto Rico lottery for a slight premium plus the value of the tickets. In turn, they would sell
these winning tickets for a higher price to "clients" wishing to
hide illicit income.
While some of the "acaparadores'" conduct
was punishable under local law, most of it was not prosecutable
under current federal law.
For example, when the "acaparador" accepts substantial amounts of currency from a narcotics trafficker and gives the trafficker a winning lottery ticket, his conduct is not
punishable under the Bank Secrecy Act.
Before the government can - 5
prosecute an "acaparador" we would have to establish that he has
been operating as a financial institution as this term is defined in the law. More importantly, and certainly more difficult to do, we would have to prove that the "acaparador" knew about the
law, that his activity was covered under the law, and that he
knew about his obligation to file the necessary reports and to
keep records of his transactions. Further, we have no effective law with which to prosecute employees of businesses other than
banks because of the necessity of proving that they were acting
as employees of a financial institution and that therefore they
had the obligation to file the required reports.
Simply put, the Bank Secrecy Act, while an effective law enforcement tool, is not enough, standing alone, to combat money laundering. As long as currency transactions are properly
reported, the Bank Secrecy Act contains no sanction for washing
dirty money. Consequently we think that a new provision should be added to Title 18 making it an offense to conduct or attempt
to conduct a transaction involving monetary instruments or the
wire transfer of funds, if the transaction affects interstate or
foreign commerce or is conducted through a financial institution the activities of which affect interstate or foreign commerce, provided that the government can show either of the following: first, that the person acted with the intent to promote, manage, establish, carry on, or facilitate an unlawful activity (defined as a state or federal felony), or, second, that the person knew or acted in reckless disregard of the fact that the monetary
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instruments or funds represent the proceeds of or are derived from the proceeds of an unlawful activity.
We have carefully drafted our bill (HR. 2785) to include not
only the person who, for example, deposits cash representing the proceeds of an unlawful drug transaction in a bank or uses such "dirty money" to buy a new car, but also the bank employee or car salesman who participated in the transaction by accepting the money if such a person can be proved to have known or to have
acted in reckless disregard of the fact that the money involved was derived from criminal activity. Such persons, and in particular the employees of banks and other financial institutions who knowingly or recklessly help criminals dispose of the fruits of their crimes, facilitate criminal activity and are as deserving of punishment as the drug dealer or loan shark
who brings them their ill-gotten cash or other monetary instruments derived from their cash. 2/
The punishment for the new money laundering offense which we have proposed is appropriately severe: imprisonment for up to twenty years and a fine of up to the greater of $250,000 or twice
the amount of money involved in the offense.
H.R. 2785 also
provides for a civil penalty of up to the greater of $10,000 or
2/ H.R. 2785 would not apply to duly authorized government law enforcement or intelligence activities such as FBÍ undercover operations routinely described in annual appropriations bills. See, e.g., section 203 (b) of P.L. 98-411 (98 Stat.1545, 1559).
the amount involved in the transaction, and for the forfeiture of all funds involved in the offense. The civil penalty and the forfeiture provisions would be in addition to any fine imposed for a criminal conviction. In short, we intend to make the laundering of money derived from criminal activity an expensive proposition for those who would try it.
One aspect of the new money laundering offense which merits particular attention is the coverage of one who cannot be shown to have actual knowledge that the money he or she receives or handles in a transaction was derived from a crime but who acts in
"reckless disregard" of the fact that the money was so obtained. Increasingly, with the enormous money derived from narcotics trafficking and organized crime, money launderers are persons such as lawyers and bankers who, for a price, launder money that is clearly the proceeds of a crime even though it cannot be
proven that they have actual knowledge of its source.
Consider, for example, an actual case in the Southern
District of Florida in 1982: One Beno Ghitis, a foreign national
who operated a money exchange business in South America, opened an account in the Capital Bank in Miami in the name of an entity
An agent of Ghitis, a person named Victor
Eisenstein, deposited $242 million in cash in the Sonal account
between January and August of 1981, most of it brought in in
cardboard boxes and duffel bags.
For handling the Sonal account,
the bank charged a "service fee" of 1/8 of 1 percent of the total
deposits which was subsequently raised to be of 1 percent and then
to a flat "fee of $300,000 per month.
In civil forfeiture