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8.146 Financial Transaction to Promote Unlawful Activity

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8.146 FINANCIAL TRANSACTION TO PROMOTE UNLAWFUL ACTIVITY (18 U.S.C. § 1956(a)(1)(A))

The defendant is charged in [Count _______ of] the indictment with [conducting] [attempting to conduct] a financial transaction to promote [unlawful activity] in violation of Section 1956(a)(1)(A) of Title 18 of the United States Code. In order for the defendant to be found guilty of that charge, the government must prove each of the following elements beyond a reasonable doubt:

First, the defendant [conducted] [intended to conduct] a financial transaction involving property that represented the proceeds of [specify prior, separate criminal activity];

Second, the defendant knew that the property represented the proceeds of [specify prior, separate criminal activity]; [and]

Third, the defendant acted with the intent to promote the carrying on of [specify unlawful activity being promoted][.] [; and]

[Fourth, the defendant did something that was a substantial step toward committing the crime.

Mere preparation is not a substantial step toward committing the crime. To constitute a substantial step, a defendant’s act or actions must demonstrate that the crime will take place unless interrupted by independent circumstances.]

A financial transaction is a transaction involving [the movement of funds by wire or other means that] [one or more monetary instruments that] [the use of a financial institution that is engaged in, or the activities of which] affect[s] interstate or foreign commerce in any way.

Comment

See United States v. Sayakhom, 186 F.3d 928, 940 (9th Cir.1999), approving a similar version of this instruction.

For cases involving conduct on or after May 20, 2009, "proceeds" means "any property derived from or obtained or retained, directly or indirectly, through some form of unlawful activity, including the gross receipts of such activity." 18 U.S.C. § 1956(c)(9) (subsection (c)(9) was added by Pub. L. 111-21, 123 Stat. 1618). For cases involving conduct prior to May 20, 2009, consider United States v. Santos, 553 U.S. 507, 128 S. Ct. 2020, 2025 (2008) (plurality opinion) (Where the prior, separate criminal activity is gambling, the term "proceeds" must be defined as "profits."), and United States v. Van Alstyne, 584 F.3d 803, 814 (9th Cir.2009) ("We therefore view the holding that commanded five votes in Santos as being that ‘proceeds’ means ‘profits’ where viewing ‘proceeds’ as ‘receipts’ would present a ‘merger’ problem of the kind that troubled the plurality and concurrence in Santos.").

With respect to the second element, the government must prove that the defendant knew that the property represented the proceeds of the specific prior, separate criminal activity but need not prove that the defendant knew that the act of laundering the proceeds was unlawful. See United States v. Deeb, 175 F.3d 1163, 1167 (9th Cir.1999).

Because it is a specific intent crime, it is reversible error to give Instruction 5.6 (Knowingly–Defined) in a money laundering case. United States v. Stein, 37 F.3d 1407, 1410 (9th Cir.1994). See also United States v. Turman, 122 F.3d 1167, 1170 (9th Cir.1997) (applying Stein retroactively).

The bracketed language stating a fourth element applies to attempt to engage in a financial transaction to promote unlawful activity. For an attempt to commit the crime, jurors do not need to agree unanimously as to which particular act or actions constituted a substantial step toward the commission of a crime. United States v. Hofus, 598 F.3d 1171, 1176 (9th Cir.2010).