Money Laundering: Understanding 18 U.S.C. 1956 and 1957
Congress enacted the principal money laundering statutes in 1986. 18 U.S.C. 1956 and 1957 criminalize financial and monetary transactions with proceeds of underlying criminal activity. These statutes make money laundering a crime in and of itself. Thus, not only can someone be charged with the underlying offense that initially taints the funds, they can also be charged with money laundering if they use (or attempt to use) the proceeds derived from their criminal activity in ways sanctioned by the money laundering statutes.
Although initially enacted as a means of countering narcotics trafficking activities, the money laundering statutes are now applied to all kinds of kinds of white collar or national security related offenses. For example, these statutes can be invoked when the underlying criminal activity is fraud, sanctions violations, tax evasion, etc. Any time money is derived, earned or otherwise possessed from some specified unlawful activity, it is considered dirty and the person possessing such funds is at risk of also being a money launderer. This is significant because money laundering carries a 20 year maximum sentence, a sentence significantly higher than most white collar or national security related offenses.
Although sections 1956 and 1957 are related, they differ in some very important ways. Under section 1956 a federal prosecutor must prove that: (1) the defendant conducted or attempted to conduct a financial transaction; (2) the defendant knew that the financial transaction involved the proceeds of some type of unlawful activity; (3) the funds were in fact proceeds from unlawful activity; and (4) the defendant intended to “promote” criminal activities, “conceal” the funds, avoid currency transaction reporting laws, or commit tax fraud. [Concealment money laundering makes it an offense to make "dirty" money look "clean" or that attempts to hide the money from the government in any way. Promotion money laundering criminalizes those who use the proceeds of their criminal activity to further or promote their criminal activity].
Under section 1957 a federal prosecutor must prove that: (1) the defendant engaged or attempted to engage in a monetary transaction; (2) the monetary transaction was of a value greater than $10,000; (3) the transaction derived from criminal activity; (4) the transaction either took place in the U.S. or the defendant is a U.S. person; and (5) the defendant knew that the property was criminally derived.
One critical distinction between the two statutes is the conduct being targeted. 1956 targets “financial transactions,” while 1957 targets “monetary transactions.” Financial transactions includes a broad range of financial dealings that affect interstate commerce. The term encompasses almost any deal, like bank transactions, gifts, purchases and other transfers of money and property. 1957 accomplishes its goal primarily by prohibiting “dirty” money from entering the financial system through monetary transactions (i.e. deposits, withdrawals, etc.) with financial institutions (i.e. banks). Thus the goal of 1956 is prohibiting the actual “laundering” of “dirty” money whereas 1957 is concerned with keeping the financial system clean by keeping “dirty” money out.
Another key distinction is that 1956 has no specified minimum value for the financial transactions to be subject to the statute. Thus, even the most miniscule financial transaction can subject someone to criminal prosecution under 1956. Quite by design, the statute broadly covers most everyday transactions and includes transactions of any value so long as the requisite intent is present. On the other hand, Section 1957 mirrors currency reporting laws and requires the monetary transaction to be worth at least $10,000.
Both statutes require the government to prove that the defendant knew the funds were criminally derived, but does not require the government to prove that the defendant knew the specific criminal activity underlying the transaction. Therefore, as long as the government can prove beyond a reasonable doubt that the defendant knew the funds he was transacting with were likley derived from some prohibited conduct, he can be liable under either money laundering statute. Willful ignorance is not a defense to this intent requirement. Thus, the defendant need not be involved in the criminal activity himself, let alone know what criminal acts were specifically undertaken to derive the funds, to be liable in these cases.
It is apparent that these statutes broadly apply to many people in many situations. Most of these situations would seem more economic in nature, rather than criminal. Bank tellers, traders, merchants, retailers, etc. are at risk and should understand these statutes because they directly relate to their lawful businesses. Thus people should be mindful of money transfers, purchases or transactions by performing some level of due diligence to ensure the funds are not derived from criminal activity. Further, people conducting trade or transactions on an international level should be mindful of the various economic sanctions programs, export/import laws, etc. in order to minimize their instances of possessing “dirty” money. In other words: know where the money is coming from and decline to work with those who cannot give you adequate assurances, even if those people are your customers, friends, or family.
The author of this blog is Erich Ferrari, an attorney specializing in Federal Criminal Defense matters. If you have any questions please contact him at 202-280-6370 or firstname.lastname@example.org.