JON E. DeGUILIO, District Judge.
On March 14, 2013, a jury found Yulia Abair guilty of eight counts of structuring currency transactions to evade statutory reporting requirements, each a violation of 31 U.S.C. § 5324(a)(3). [DE 53]. On March 28, 2013, the defendant filed three post-trial motions: (1) a renewed motion for a judgment of acquittal pursuant to Fed. R. Crim. P. 29 (a similar motion was made orally and denied at the close of the government's case-in-chief) [DE 56]; (2) a renewed motion to dismiss the indictment as multiplicitous, or in the alternative to vacate certain counts or merge all counts into one for purposes of conviction and sentencing [DE 58]; and (3) a motion for a new trial [DE 57]. The latter two motions are related. The defendant believes she is entitled to a new trial because the court's failure to dismiss all but one count of the indictment during trial resulted in prejudice to the defendant which cannot be corrected by simply merging the counts at this time. The government responded to each motion [DE 62; DE 63; DE 64], and the defendant declined to reply. The court now resolves each motion as follows.
Abair first moved for a judgment of acquittal pursuant to Rule 29 at the close of the government's case-in-chief, and that motion was denied. But a defendant is permitted to renew any such motion within 14 days after a guilty verdict or after the court discharges the jury, whichever is later. See Rule 29(c)(1). Abair's motion is timely and is properly before the court. Abair accurately identifies the three elements which the government was required to prove with respect to each charge of structuring at trial: (1) that the defendant had knowledge that financial institutions in the United States are required to report currency transactions in amounts greater than $10,000.00; (2) that the defendant structured the currency transaction in question for the purpose of evading this reporting requirement; and (3) that the transaction involved one or more domestic financial institutions. The parties stipulated as to the third element, but Abair argues that insufficient evidence was introduced to support a guilty verdict with respect to the first and second elements.
When a defendant moves for judgment of acquittal pursuant to Rule 29, the question the court must ask is whether evidence exists from which any rational trier of fact could find the "essential elements" of the crime beyond a reasonable doubt. United States v. Hach, 162 F.3d 937, 942 (7th Cir. 1998); United States v. Fearn, 589 F.2d 1316, 1321 (7th Cir. 1978) (discussing with approval the Fifth Circuit rule that a motion for judgment of acquittal "must be granted when the evidence, viewed in the light most favorable to the government, is so scant that the jury could only speculate as to the defendant's guilt, and is such that a reasonably-minded jury must have a reasonable doubt as to the defendant's guilt.") (citing United States v. Herbernman, 583 F.2d 222 (5th Cir. 1978); United States v. Stephenson, 474 F.2d 1353, 1355 (5th Cir. 1973)). The movant "faces a nearly insurmountable hurdle [because courts] consider the evidence in the light most favorable to the Government, defer to the credibility determination of the jury, and overturn a verdict only when the record contains no evidence, regardless of how it is weighed, from which the jury could find guilt beyond a reasonable doubt." United States v. Blassingame, 197 F.3d 271, 284 (7th Cir. 1999), cert. denied, Fuller v. United States, 529 U.S. 1138 (2000) (quoting United States v. Moore, 115 F.3d 1348, 1363 (7th Cir. 1997)). In short, if after viewing the evidence in the light most favorable to the prosecution, the court does believe that a rational trier of fact could find the essential elements of the crime beyond a reasonable doubt, the motion must be denied. United States v. Pribble, 127 F.3d 583, 590 (7th Cir. 1997). If, on the other hand, the record is devoid of evidence from which a jury could find guilt, the motion must be granted. See Fed. R. Crim. P. 29; United States v. Pulido, 69 F.3d 192, 205-06 (7th Cir. 1995).
Sufficient evidence was introduced to support a guilty verdict in this case. The government's case with respect to the two challenged elements rested on a combination of direct and circumstantial evidence. As for direct evidence, Yulia Abair was interviewed by IRS agent Nicolette Droza and police sergeant Brian Shnick on October 28, 2011. At trial, each witness testified about what Abair told them over the course of the interview. Agent Droza asked the defendant about the reporting threshold. She asked if the defendant was aware that banks were required to report transactions over $5,000.00, and the defendant replied that she thought the threshold was $10,000.00, indicating knowledge. The defendant argues that Droza's testimony only proves Abair knew of the reporting requirement in October of 2011, not in May of 2011 when the transactions took place. But there was more to Agent Droza's testimony. According to Agent Droza, Abair told Agent Droza that the reason she did not want to deposit $10,000.00 was because she was aware that there would be a report and she did not want the government to look at her. [DE 61 at 14-15]. That suggests both knowledge and an evasive purpose at the time the transactions were made. Sergeant Schnick's testimony corroborated Agent Droza's account of the interview in full. [DE 61 at 33].
As for circumstantial evidence, the nature of the transactions themselves — a series of cash deposits totaling close to $70,000.00, but spread over several days in such a way that no one day's deposit was higher than $10,000.00 — can rationally support the inference that the defendant knew of the $10,000.00 "ceiling" at which she would need to report, and then she intended to evade it. As the government notes, that inference is further supported by the fact that the defendant always had additional cash on hand when she deposited amounts near, but not over, $10,000.00 at the bank. [DE 60 at 61]. A rational jury could certainly conclude that had Abair truly intended to move the money as quickly as possible, she would have deposited all of the cash she had on hand each time she went to the bank. But instead, she deposited amounts that would not trigger reporting requirements. The inference of knowledge and purpose may not be a necessary one to draw under these circumstances, but it is a certainly a rational one to draw.
Viewing the evidence in the light most favorable to the prosecution, the court does believe that a rational trier of fact could find the essential elements of the crimes charged beyond a reasonable doubt. As a result, Abair's motion for a judgment of acquittal must be denied. United States v. Pribble, 127 F.3d 583, 590 (7th Cir. 1997).
At the close of the government's case-in-chief, the defendant orally moved (for the first time) to dismiss the indictment as multiplicitous. In a written order issued March 13, 2013, this court held that the defendant had waived any challenge to the indictment itself by failing to raise the issue prior to trial. The court also held, however, that the defendant would have the opportunity to challenge any conviction or sentence as multiplicitous in the event that the jury returned guilty verdicts on multiple counts. [DE 46]. The jury did return guilty verdicts on all eight counts charged, and the defendant's present motion is just such a challenge.
This court's previous concerns about waiver no longer apply. While it is undoubtedly true that Fed. R. Crim. P. 12(b)(2) "requires defendants to bring multiplicity claims based on the indictment before trial[,]" see United States v. Griffin, 765 F.2d 677, 682 (7th Cir. 1985) (emphasis added), it is also undoubtedly true that it would be inappropriate for this court to enter a final judgment convicting and sentencing a defendant on multiplicitous counts after trial, particularly where the issue has repeatedly been brought to the court's attention. See, e.g., United States v. Brooks, 2013 WL 1222743 at *4 (7th Cir. March 26, 2013) (table opinion). It is therefore proper to revisit the issue at this time.
The indictment in this case consists of an introductory paragraph, followed by a list of transactions charged in separate counts:
[DE 1 at 1]. Each of the separately charged transactions represented by the bracketed line in the above quotation includes the count number (1-8); the date of the transaction; the day of the week of the transaction; and the amount of the transaction. Each transaction was a cash deposit in an amount greater than $6,000.00 but less than $10,000.00. The deposits charged with respect to the eight counts add up to a total of $67,060.00. From essentially the beginning of this prosecution, the defendant's theory of the case has been that she was depositing this money into her local account at Lake City Bank in order to purchase a home, the closing price of which was approximately $67,000.00. Further, she has maintained that she withdrew all of the money which went into the indicted deposits from Citibank Moscow, through ATMs, in $400.00 increments. The money in her Citibank Moscow account was the result of the sale of a condominium she previously owned in Russia. The trial evidence did not contradict those basic background facts.
Abair now claims that a judgment of conviction on eight separate counts for the conduct described above would be multiplicitous. A claim of multiplicity — rooted in the Double Jeopardy Clause — alleges that separate counts in a criminal case in fact charge a single offense. United States v. Marquardt, 786 F.2d 771, 778 (7th Cir. 1986); see also Blockburger v. United States, 284 U.S. 299, 304 (1932). Where, as here, the same statutory offense is charged as two or more separate counts, the proper question is whether Congress intended the counts to constitute separate "unit[s] of prosecution." Bell v. United States, 349 U.S. 81, 82-83 (1955). If the intent of Congress is unclear, "the ambiguity should be resolved in favor of lenity." Id. at 83. "[D]oubt will be resolved against turning a single transaction into multiple offenses[.]" Id. at 84; see also United States v. Handakas, 286 F.3d 92, 98-99 (2d Cir. 2002) (invoking the Bell rule in a structuring financial transactions context), overruled on other grounds by United States v. Rybicki, 354 F.3d 124, 133 (2d Cir. 2003).
31 U.S.C. § 5324(a)(3), the statutory section charged in this case, forbids structuring transactions with the purpose of evading statutory reporting requirements. Ratzlaf v. United States, 510 U.S. 135, 140 (1994). The Seventh Circuit has previously answered the question of what constitutes a separate "unit of prosecution" under § 5324(a)(3):
United States v. Davenport, 929 F.2d 1169, 1171-72 (7th Cir. 1991) (emphasis added). Davenport thus defines the proper unit of prosecution in a broad manner: "The
Aside from Davenport, there is little binding precedent to guide the way. Most courts outside of our circuit look to the "source" of the funds involved in order to decide the proper number of prosecutorial units. See Handakas, 286 F.3d at 98-99 (source of multiple deposits was the same large sum of cash, which was the product of illegal payments made by a business owner to himself, and so each check deposit could not be considered a separate crime; the source of the funds was not the check itself); United States v. Nall, 949 F.2d 301, 308 (10th Cir. 1991) (holding that there was only one source for three separate bank deposits where all of the money came from one lump sum payment to the defendant, and that there could only be one structuring count); United States v. Dashney, 937 F.2d 532 (10th Cir. 1991) (relying on Davenport to find only one instance of "structuring" where there was only one "cash hoard" involved); United States v. Kushner, 256 F.Supp.2d 109, 112-14 (D.Mass. 2003) (over 100 counts of structuring were held multiplicitous when the source of the funds was the same: profits of the defendant's unlicensed business, contained in multiple bank accounts). But it is not clear whether our circuit agrees with the "source" rule. See United States v. Cassano, 372 F.3d 868, 882 ("Merely because the misappropriated funds were derived from the same source does not mean they are part of a single transaction."), vacated by Cassano v. United States, 543 U.S. 1109 (2005).
Based on the foregoing authorities, the defendant argues that this case is really about one "structuring," one violation: the transfer of approximately $67,000.00 from Abair's accounts at Citibank Moscow to her local accounts at Lake City Bank. The government disagrees, and argues that Davenport is distinguishable. The government's position is that each deposit was a separate transaction with separate intent, and that the "structuring" in each instance was Abair's structuring of the movement of her on-hand cash into her bank account. But ultimately the government indicates it has no objection to a merger of the counts, explaining that the multiple convictions have little impact upon sentencing.
In this court's estimation, the takeaway from Davenport seems to be that the court should consider whether the facts suggest a broader view of what it means to "structure a financial transaction" than simply taking currency out of one's pocket (or "cash hoard") and depositing it in the bank. If they do, then the indictment, judgment or sentence should be adjusted to fit the facts. Certainly, the pocket-to-bank model can provide the basis for a prosecution in some cases:
Davenport, 929 F.2d at 1173 (emphasis added) (citing S. Rep. No. 433, 99th Cong., 2d Sess. 22 (1986); United States v. Scanio, 900 F.2d 485, 488 (2d Cir. 1990)). But where the transaction clearly involves more than that — such as where it clearly involves taking, or receiving, the funds from a first source, and then temporarily personally possessing them while structuring their deposit into a second source, the proper prosecutorial unit can be as broad as the transaction consisting of the "receipt and deposit" of the funds. Davenport, 929 F.2d at 1171.
It is clear that this case is more than a pocket-to-bank transaction. The government's argument is that each deposit represented a separate violation with separate intent because, leading up to each deposit, Abair possessed over $10,000.00 in cash. But, by the government's own admission, her on-hand cash wasn't a "hoard" in the usual sense. It was the product of almost countless $400.00 ATM withdrawals
The defendant's motion is therefore granted, to the extent that this court will merge all counts of conviction into one violation of the statute at sentencing, to be reflected in the judgment entered on the record thereafter.
In her third motion, Yulia Abair requests a new trial. She believes that the presentation of multiplicitous counts in the indictment to the jury prejudiced her irreparably by making the jury more likely to convict on all counts. Courts faced with a request for a new trial evaluate "whether the improprieties impacted the outcome of the trial, and we will reverse only if there is a reasonable probability that, in the absence of the improprieties, the defendant would have been acquitted." United States v. McGee, 408 F.3d 966, 984 (7th Cir. 2005) (citing United States v. Boyd, 55 F.3d 239, 241 (7th Cir. 1995)).
The court already addressed the defendant's concern in its previous order on the multiplicity issue [DE 46], where it stated:
[DE 46 at 5]. The court stands by its previous finding that enforcing the defendant's waiver of the issue during trial created no risk of prejudice. Moreover, the court notes that nearly nothing about the presentation of this case would have changed had the defendant properly raised the multiplicity issue prior to trial. The exact same evidence would have been presented, the exact same theories of the case would have been argued to the jury, and the exact same law would have governed their deliberative process. There is not a reasonable probability that, had the outcome of the multiplicity issue during trial been different, the jury would have acquitted the defendant. To the contrary, the defendant has provided no compelling reason why that would affect the jury's decision at all. The motion [DE 57] is denied.
For the reasons stated herein, Yulia Abair's motion for a judgment of acquittal [DE 56] is
SO ORDERED.
