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actions brought against some of the money in the Sonal account and against some found in Eisenstein's office, the District Court

found that although there was no indication that any of the

principals were engaged in drug transactions, the volume ,

frequency, and other circumstances surrounding the cash deposits

were such that Ghitis, Eisenstein, and others involved knew or should have known that the cash involved was drug tainted. Hence, nearly $8 million was forfeited to the government, $4,255,625.39 in the Sonal account and $3,686,639 (a picture of which was prominently displayed here last week) found in Eisenstein's office which he had conveniently rented in the same building as the branch of the Capital Bank where he made most of his deposits. 31

To illustrate it further, take the hypothetical case of an attorney who, for a $50,000 fee, accepts a suitcase containing

$500,000 in currency from a person who he knows is employed as a

construction worker with instructions to deposit it in small

amounts in several different banke in his own name and then wire

the money in each of the accounts to the worker's bank account in

a foreign country.

As another example, consider a bank employee

who, for the same ten percent fee, accepts the whole suitcase of cash from the construction laborer, distributes it among several

3/ United States v. $4, 255, 625.39, 551 F. Supp. 314 (S.D. Fla. 1982T, affid 762 F. 20 895 (11th Cir. 1985).

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accounts set up by the laborer, and then wire transfers it to the

foreign Bank.

Most persons would agree that in these examples there is

such a substantial risk that the money is derived from a crime

that the attorney and the banker are acting reprehensibly in accepting it with "no questions asked." To ignore this risk is to

act in reckless disregard of the fact that the money represents the proceeds of a crime. If such a "reckless disregard" standard

were not included, persons such as those in the examples I have just described who were willfully blind to the obvious source of

the money involved could not be prosecuted.

Accordingly, the term "reckless disregard" is defined in the

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and circumstances that lead the person to believe that a

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gross deviation from the standard of care that a reasonable

person would exercise under the circumstances.

The

term

"reckless disregard" is used in at least three other statutes in Title 18

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and is to be contrasted sharply

See 18 U.S.C. 1365, proscribing the tampering with consumer products; 18 U.S.C. 33, concerning the destruction of motor vehicles; and 18 U.S.C. 1861, prohibiting the deceiving of prospective lond purchasers.

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with a mere "reason to know" or "negligence" standard which

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careful consideration, we concluded that a "reason to know

standard was not suitable for subjecting a person to either the serious criminal or civil sanctions set out in the new money laundering offense.

5/

Turning now to other provisions in the Administration's bill, Section 7 of H.R. 2785 would add a new criminal facilitation offense to Title 18. It would accomplish this by

adding a new Subsection (c) to 18 U.S.C. 2 to provide that

5/ In addition to the scienter element, the Department's bill differs in other ways from the proposal drafted by the organized Crime Commission. First, the Department's bill covers money laundering that affects commerce whereas the Commission's bill was restricted to money laundering through financial institutions. Second, the Department's bill covers money laundering through wire transfers; the Commission's bill does not. Third, the Commission's bill did not contain a forfeiture provision or civil penalties. Fourth, the Commission's bill provides for general extraterritorial jurisdiction over the offense. The Department's bill provides for much more limited extraterritorial jurisdiction. Such jurisdiction would attach only if the the transaction constituting the offense involved the laundering of $10,000 or more derived from a violation of Title 18 or from certain particularly serious offenses in other titles such as those involving drugs, tax evasion, and espionage; the conduct constituting the money laundering was by a United States person, or, if not by a United States person it occurred at least in part in the United States; and the defendant had actual knowledge that the money represented the proceeds of one of the covered types of unlawful activity. The requirement that the defendant have actual knowledge that the money was derived from a crime, as opposed to having acted with reckless disregard of that fact, was added because of a concern that otherwise the new money laundering offense might impose a burden on foreign persons acting abroad to become aware of United States law.

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"whoever knowingly facilitates the commission by another person of an offense against the United States by providing assistance that is in fact substantial is punishable as a principal." This offense would not be limited just to money laundering but would be particularly applicable to money launderers. For example, the new offense would be committed by one who, for a fee, took

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small denomination currency that he knew was derived from drug sales and exchanged it for large, easy to smuggle bills for the

dealer to secret out of the country. Although the person took no

part in the smuggling and was indifferent as to the source of the

money he would facilitate the violation and be guilty as a

principal. It would also be committed by a chemist who manufactures and sells a lawful but difficult to obtain ingredient to a person who he knows intends to use it to produce a controlled substance.

In short, one who provides substantial assistance to another in the commission of an offense engages in reprehensible conduct which should subject him to criminal liability as a principal. Yet some courts have held that such a person is not guilty as an

aider and abettor under 18 U.S.c. 2(a) unless he consciously

intends to make the criminal venture succeed, Other courts have

held, however, that a person who knowingly furnishes material assistance such as bribe money or goods to a person who he is

aware intends to use them in a crime has sufficient scienter for

6/ criminal liability under 18 U.S.c. 2. The facilitation offense

6/ See, for example, Backun v. United States, 112 F. 28 635, 637 74th Cir. 1940) where the court stated that (g)uilt as

(Footnote Continued)

an

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is intended to clarify the case law to ensure that one who

knowingly furnishes such assistance to a criminal is punishable.

Section of the bill is also not confined strictly to money laundering but, like Section 7, would be particularly useful in dealing with those who handle "dirty money." It would add a new Section 2322 to Title 18 setting out two related, but distinct, offenses. The first offense is knowingly receiving the proceeds of any federal felony. The offense would be committed, for

example, by a money launderer who received the proceeds of any

federal crime.

The second offense is bringing 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 proscribing

narcotics trafficking for which the punishment under the foreign

law is imprisonment for more than one year. This offense is intended to reach those foreign drug traffickers who would look

to the United States as a place in which to invest their illegal

profits and to insure that the United States does not become a

haven for such activity.

It is interesting to note that both Canada and Switzerland have analogous provisions in their laws. Just recently in

(Footnote Continued) accessory depends, not on 'having a stake' in the outcome of crime ... but on aiding and assisting the perpetrators; and those who make a profit by furnishing to criminals, whether by sale or otherwise, the means to carry on their nefarious undertakings aid them just as truly as if they were actual partners with them having a stake in the fruits of their enterprise."

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