Conviction for the failure to file a file Currency Transaction Report upheld.
In U.S v. Leon, Leon appeals from her conviction following a jury trial of three counts of attempting to cause a financial institution to not file a required currency transaction report (a CTR) in violation of 31 U.S.C. § 5324(a)(1). On appeal Leon claimed that the government and the district court constructively amended the indictment allowing her to be tried and convicted of violation §5324(a)(3) and not §5324(a)(1). The indictment alleges that Leon knowingly willfully and for the purpose of avoiding federal reporting requirements attempted to cause Bank of America not to file required CTRs concerning currency transactions exceeding $10,000 while violating another federal law and as part of a pattern of illegal activity involving more than $100,000 in a 12-month period. She was charged with making five cash withdrawals in the amounts of $9,500, $5,500, $1,430, $1,000 and $400. Another count charge her with making three cash withdrawals in amounts of $6,000, $3,995 and $500. And two cash withdrawals in the amounts of $9,846 and $300. The indictments alleged that these withdrawals, when aggregated on a daily basis, triggered Bank of America’s obligation to file CTRs and that Leon make the withdrawals in amounts less than $10,000 to try to cause Bank of America to not file CTRs.
Leon contended that the government’s theory and evidence as well as the district court’s jury instructions constructively amended the federal criminal indictment by allowing her to be convicted of violating §5324(a)(3) instead of §5324(a)(1). She claimed that the offense of structuring is prohibited by §5423(a)(3) but not by §5423(a)(1). Building on this premise Leon argues that there was a constructive amendment allowing her to be convicted of uncharged §5342(a)(3) offenses because the government repeatedly use the term “structuring” when referring to the three counts.
In rejecting Leon’s arguments, the appellate court reviewed her claim for plain error because she did not raise her constructive amendment argument in the district court.
While the word “structure” is contained in §5324(a)(3) and not in §5324(a)(1) and courts sometimes refer to the offense set out in §5324(a)(3) as structuring, the appellate court did not think that the parties’ joint use of the term “structuring” as shorthand for arranging the withdrawals in question constructively amended the indictment. The court concluded that characterizing the federal criminal law charged in the three counts as structuring “while maybe a bit loose” is not reversible error. In fact, some courts and commentator have referred to both (a)(1) and (a)(3) as “structuring” offenses, leading the court to conclude that the parties’ word choice did not result in a constructive amendment.
The appellate court found no error in the trial court’s jury instructions. The appellate court found the instructions were not perfect because they did not mention the U.S. Treasury’s “aggregation” regulation under which the government was proceeding. Nevertheless, the court found the deficiencies did not did not constructively amend the indictment under the plain error analysis. The instructions set out a number of elements consistent with the language of §5324(a)(1) and the use of the word “structure” in the instructions was not prejudicial to Leon because the jury was not aware that there was a separate provision, i.e. §5324 that prohibited “structuring” in circumstances where the financial institutions duty to report was not triggered.