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Structuring indictment thrown out because each count found insufficient

In U.S. v. Lang the defendant was indicted on 85 counts of violating 18 U.S.C. § 5324 which makes it a crime to structure cash transactions for the purpose of evading the requirement that a financial institution file a report with the Department of Treasury of a cash transaction by any person on a single day exceeding $10,000. He was convicted of 70 counts and on appeal he challenged the sufficiency of the indictment. The statute prohibits a person from structuring any transaction with one or more domestic financial institutions, in an amount which by regulation is $10,000. In this federal white collar crime, the issue here is whether one or more structuring crimes has been committed for an evasion involving breaking down a single amount that exceeds $10,000. Structuring according to the Supreme Court precedent is breaking up a single transaction above the reporting threshold into two or more separate transactions for the purpose of evading a financial institutions reporting requirement. The court of appeals concluded that in order to evade the reporting requirements the structured transaction must involve an amount that is more than $10,000 or else there could be no evasion. A single cash transactions were not sufficient to set forth each structuring count. The court considered other circuit decisions regarding the question about the proper unit of prosecution for structuring. The Seventh and the Tenth Circuits found that the structuring itself and not the individual deposits is the unit of the crime. The Tenth Circuit reached the same conclusion in a case where a defendant paid a bank three separate payments of 9,000, 9,000 and 6,000 on three separate days to avoid a $24,000 cash payment.

In this case the indictment charged a separate structuring crime for each check less than $10,000 and no combination of two or more checks is alleged in any count. A cash transaction in an amount below the reporting threshold cannot in itself amount to structuring because the crime requires a purpose to evade the reporting requirement and that requirement does not apply to a single cash transaction below the threshold. The government’s theory is that Lang received from one source 21 payments exceeding $10,000 over a period of 8 months and had broken down the larger payments into multiple checks each of which was less than $10,000 and he cashed those checks separately to evade the reporting requirements. Instead of a series of counts each alleging payments totaling more than $10,000 that were structured into checks of smaller amounts, which were cashed, the indictment consists of 85 counts each of which separately alleges that a single check in an amount less than $10,000 was structured. “When cashed checks come to the structuring dance, it takes two to tango.” Allegations from separate counts cannot be combined to allege what is missing in the count itself. For these reasons the indictment was found to be so defective that it does not, by any reasonable construction, charge an offense for which the defendant was convicted.