UNITED STATES of America, Plaintiff-Appellee, v. Robert B. SPERRAZZA, Defendant-Appellant.
No. 14-11972.
United States Court of Appeals, Eleventh Circuit.
Aug. 17, 2015.
800 F.3d 1244 | 1113
Before MARCUS, ROSENBAUM, and GINSBURG, Circuit Judges.
To conclude that the government interests in the case at bar deserve much weight, the majority analogizes FEHB insurers to the military contractors in Boyle, and observes that it makes little sense to insulate the government against liability where it produces equipment directly but not where it contracts for production. (Majority Op. 1100-01.) This analogy merely raises the question: would agency discretion shield the government from financial liability if the government issued insurance directly, and not through private insurers? Not under
The majority also errs in its attempt to distinguish O‘Melveny & Myers v. FDIC, 512 U.S. 79, 114 S.Ct. 2048, 129 L.Ed.2d 67 (1994). In O‘Melveny the Court concluded that the government‘s general desire to avoid foregoing any money that might accrue to a federal fund was insufficient to support preemption without some limiting principle. Id. at 88, 114 S.Ct. 2048. The majority states that FEHB reimbursement provisions are “limited to recovering funds to prevent the boon of double recoveries for some enrollees.” (Majority Op. 1102.) But, if this is the limiting principle, it has no teeth. The contract terms are not limited to those cases involving double-recovery. To the contrary, the official statement of benefits expressly provides that the insurer may recover “even if [the insured] is not ‘made whole’ for all of [her] damages in the recoveries that [she] receive[s].” Helfrich alleges that the recovery from BCBS and from the offending driver‘s insurance together left $30,000 of her medical bills unaddressed. Accepting this well-pled allegation as true and construing it in the light most favorable to the plaintiff, Estes v. Wyoming Dep‘t of Transp., 302 F.3d 1200, 1203 (10th Cir. 2002), Helfrich did not receive a double-recovery. She did not even cover her costs. The reimbursement provisions are over-inclusive, as they allow more than just double recoveries, and under-inclusive, because insurers may decide not to collect even if the insured did receive a double-recovery. To the extent that preventing double-recovery is a limiting principle, it has no application in this case.
The majority‘s reasoning would exempt federal contracts from the contours of state law anytime the government finds that law economically inconvenient. We should not grant such broad authority to federal agencies. Instead, we should limit our preemption analysis to the relevant statute and the agency‘s implementing regulations. For these reasons, I do not join the majority‘s federal common law discussion.
William Rakestraw Cowden, William Cowden, LLC, Washington, DC, for Defendant-Appellant.
Frank Phillip Cihlar, Gregory Victor Davis, Karen M. Quesnel, U.S. Department of Justice, Washington, DC, Michelle Lee Schieber, Danial Edward Bennett, Michael J. Moore, U.S. Attorney, U.S. Attorney‘s Office, Macon, GA, James N. Crane, U.S. Attorney‘s Office, Albany, GA, for Plaintiff-Appellee.
GINSBURG, Circuit Judge:
Dr. Robert Sperrazza was convicted of three counts of tax evasion, in violation of
I. Background
Pursuant to
Sperrazza and two other doctors had an anesthesiology practice in Albany, Georgia. The practice outsourced its billing operations to Physicians Professional Management (PPM), which collects and processes payments from patients and insurance companies. PPM ordinarily deposits the checks it receives from patients, but Sperrazza instructed PPM to mail to him each week any checks received from his patients. The bundle of checks Sperrazza received each week from PPM usually totaled several thousand dollars and on at least one occasion the checks totaled more than $10,000.
Approximately every ten days Sperrazza cashed the checks he received from PPM at a bank in Albany. Although Sperrazza and his practice had several accounts with the bank, he always cashed the checks rather than depositing them into an account. Ordinarily he cashed between 20 and 50 checks per visit; the checks often totaled more than $9,000 but never exceeded $10,000. In 2008, for example, Sperrazza cashed checks on 36 days, on 24 of which the checks totaled between $9,000 and $10,000. According to one of his partners, Sperrazza had told him he never cashed checks totaling more than $10,000 at one time because he wanted “to avoid any reports or anything that would involve ... the regulatory or IRS authorities.”
Sometimes Sperrazza also deposited cash into one of his accounts at the bank before he cashed the checks he had received from PPM. The cash deposits, like the checks, often totaled more than $9,000 without ever exceeding $10,000. In 2008, Sperrazza deposited cash on 18 days, on 14 of which he deposited between $9,000 and $10,000.
In December 2008 law enforcement officials searched Sperrazza‘s home in connection with an unrelated criminal investigation. The officers discovered there approximately $24,000 in cash, some of which was in an envelope labeled “clean.” Sperrazza‘s accountant subsequently informed the IRS that Sperrazza had underreported his income by failing to disclose payments he had received from his patients. Sperrazza later filed amended tax returns and paid the tax owed for 2005, 2006, and 2007.
In 2012 a grand jury returned a five-count indictment against Sperrazza. The first three counts allege he evaded income tax in 2005, 2006, and 2007, respectively; the fourth and fifth counts allege he structured a currency transaction in 2007 and in 2008, respectively, in amounts totaling $870,238.99. The Government also notified Sperrazza it would seek an order requiring him to forfeit that amount.
In 2013 a jury found Sperrazza guilty of all five counts. In 2014 Sperrazza filed a motion to set aside the jury‘s verdict, in which he argued for the first time the indictment is defective. The district court denied the motion as untimely. It then sentenced Sperrazza to concurrent terms of 36 months imprisonment for each count and ordered him to forfeit the $870,238.99 sought by the Government.
II. Analysis
On appeal Sperrazza renews his arguments that the indictment is defective and the order of forfeiture is excessive.
Sperrazza first contends we must set aside his conviction because counts four and five of the indictment, which charge him with structuring a currency transaction in 2007 and in 2008 respectively, fail to state an offense and are factually inaccurate. Before turning to the merits of Sperrazza‘s two claims, we must decide whether they are subject to appellate review and, if so, under what standard of review.
1. Standard of review
Sperrazza first asserted the indictment is defective in a motion he filed ten months after his trial and conviction. The scope of our review is governed by
The old version of
The second type of claim created by the old version of
Under the new version of
If applicable to Sperrazza‘s appeal, the new rule renders untimely his motion arguing the indictment fails to state an offense—unless, that is, the “basis for the motion” was not “reasonably available” before trial or it could not have been “determined without a trial on the merits.”
Although the amendment to
The chart below illustrates some of the differences between the old and new versions of
| Type of claim not timely raised before trial | ||||
|---|---|---|---|---|
| Court lacks jurisdiction | Indictment fails to state an offense | Indictment is defective for any other reason, e.g., factual inaccuracy | ||
| Version of Rule 12 | Before Dec. 1, 2014 | Review de novo at any time until mandate issues on direct review | Not subject to appellate review except “for good cause” shown | |
| As of Dec. 1, 2014 | Review de novo at any time until mandate issues on direct review | Review only for plain error unless the “basis for the motion” was not “reasonably available” before trial or it could not have been “determined without a trial on the merits” | ||
Having outlined the difference between the two versions of
The order of the Supreme Court amending
In its original brief, the Government relied upon the old version of
In their supplemental briefs, the parties agree this appeal is a “proceeding” that was pending on December 1, 2014 within the meaning of the Supreme Court‘s order. A “proceeding” may be defined as “‘any procedural means for seeking redress from a tribunal or agency.‘” United States v. Moreno, 364 F.3d 1232, 1235 (11th Cir. 2004) (quoting Black‘s Law Dictionary 1221 (7th ed. 1999)). Indeed we have used this definition in interpreting an identical order of the Supreme Court amending the Federal Rules of Criminal Procedure. See id. Because a direct appeal is a “proceeding,” the new version of
The parties disagree about whether it would be “just and practicable” to apply the new version of
We agree with Sperrazza that it would not be “just” to change the legal consequence of his failure to raise an argument in June 2013 based upon an amendment that was proposed in April 2014 and took effect in December 2014. See United States v. Bowler, 252 F.3d 741, 746 (5th Cir. 2001) (holding it would not be “just and practicable” to apply the new version of a Federal Rule of Criminal Procedure because the defendant‘s motion would be considered timely under the old rule but untimely under the new rule). We will therefore apply the old version of
We will, however, apply the new version of the rule to Sperrazza‘s claim the indictment is factually inaccurate because it would not be unjust or impractical to do so, and neither party argues it would be. Sperrazza‘s argument the indictment is factually inaccurate was untimely under both versions of the rule, but under the new version it is forfeit rather than waived. We will therefore review for plain error Sperrazza‘s claim the indictment is factually inaccurate.
2. Defects in the indictment
a. Failure to state an offense
Sperrazza argues the indictment fails to charge him with structuring a currency transaction in violation of
The Government argues that dividing a sum the defendant has in hand is not the only way to violate the statute. It relies upon a regulation promulgated by the Department of the Treasury, which provides that structuring “includes, but is not limited to, the breaking down of a single sum of currency exceeding $10,000 into smaller sums.”
Sperrazza contends our decision in Lang requires the Government to allege in the indictment he had cash on hand in excess of $10,000. In Lang the Government asserted the defendant engaged in a series of 85 cash transactions, each of less than $10,000, for the purpose of evading the reporting requirement; the indictment charged the defendant with 85 counts of structuring. 732 F.3d at 1250-52. We held the indictment was “so defective that it does not ... charge an offense” because “[a] cash transaction involving a single check in an amount below the reporting threshold cannot in itself amount to structuring.” Id. at 1249-50 (quotation marks omitted). In other words, each count of structuring must include two or more transactions. Id. at 1249 (“When cashed checks come to the structuring dance, it takes at least two to tango“). In this case, the Government did not charge Sperrazza with a separate count of structuring in connection with every transaction he conducted. In keeping with Lang, the Government grouped into a single count a series of transactions, all of which were allegedly part of a single offense of structuring. As we said in that case, the “structuring itself, and not the individual deposit, is the unit of the crime.” Id. at 1248 (quotation marks omitted).
We have never held all the transactions that make up a single count of structuring must have originated from a single cash hoard, and Sperrazza has not pointed to any case endorsing that rule. To the contrary, two circuits have expressly rejected the contention. See Sweeney, 611 F.3d at 471 (“While breaking up a single cash transaction that exceeds the $10,000 reporting threshold into two or more separate transactions is one way of committing the offense of structuring a transaction, it is not the only way“); Van Allen, 524 F.3d at 820 (rejecting the argument “that the only method of proving structuring is to demonstrate that a defendant held a unitary cash hoard over $10,000 and then broke it up to deposit in amounts under $10,000“).
Sperrazza also relies upon a single sentence in Ratzlaf v. United States, 510 U.S. 135, 114 S.Ct. 655, 126 L.Ed.2d 615 (1994), which held a prior version of
Our recent decision in United States v. Aunspaugh, 792 F.3d 1302 (11th Cir. 2015), is inapposite for the same reason. In that case, the defendants argued there was insufficient evidence to prove they had structured a series of transactions of less than $10,000 because they had also engaged in several transactions above the $10,000 reporting threshold. We rejected this contention because “a person who once engages in a transaction of more than $10,000 does not get a pass to structure later transactions with impunity.” Id. at 1311. In the course of rejecting the defendants’ argument, we observed: “To constitute structuring, a transaction of more than $10,000 must be broken into smaller increments, each of which typically is for less than $10,000, thus avoiding the reporting requirement.” Id. Unlike in this case, however, we were not called upon to determine whether that is the only way to structure a transaction in violation of
To be clear, each count of structuring must include two or more transactions that together exceed $10,000. See Lang, 732 F.3d at 1249 (“A cash transac-
Sperrazza argues an indictment that merely lists a series of transactions of less than $10,000 expands the scope of liability under
b. Multiplicity
The Government concedes counts four and five of the indictment, which charge Sperrazza with structuring in 2007 and 2008 respectively, are multiplicitous, meaning they “charge[ ] a single offense in more than one count.” United States v. Woods, 684 F.3d 1045, 1060 (11th Cir. 2012) (quotation marks omitted). The Government admits having erred by dividing the transactions based upon the year in which they occurred because “no provision of the statute indicates that a single course of structuring can be segmented based on 12-month intervals (or any other intervals of time).” United States v. Handakas, 286 F.3d 92, 98 (2d Cir. 2002). As it acknowledges, it “should have charged [Sperrazza] not with two counts of structuring for a one-year period each, but rather with one count of structuring approximately $800,000 over a two-year period.” At the same time, the Government argues Sperrazza has forfeited any argument for relief on the basis of this error.
Indeed, Sperrazza has never argued the indictment is multiplicitous. He did not raise the point before the trial court or in his opening brief here, and his reply brief neither requests relief on this ground nor responds to the Government‘s assertion he failed to raise the argument. Perhaps Sperrazza‘s silence reflects his understanding that, as we have explained upon numerous occasions, “we do not consider arguments not raised in a party‘s initial brief.” Holland v. Gee, 677 F.3d 1047, 1066 (11th Cir. 2012) (internal quotation marks omitted). To be sure, we interpreted the old version of
Sperrazza next argues the indictment is factually inaccurate. The indictment introduces the list of 108 transactions Sperrazza conducted in 2007 and 2008 by alleging he “negotiate[d] the checks set for[th] below in increments less than $10,000.” The parties agree that statement is inaccurate because the evidence shows 32 of the 108 transactions involved deposits of cash, not checks. For example, the indictment asserts Sperrazza conducted two transactions on March 15, 2007, one in the amount of $9,000.00 and a second in the amount of $7,289.65. The indictment states both transactions involved the cashing of checks, but the evidence presented at trial shows Sperrazza deposited $9,000.00 of cash into his account and then cashed checks totaling $7,289.65.
Because we have concluded it is “just and practicable” to apply the new version of
Although the Government concedes it erred in drafting the indictment, it argues the error is not plain and did not affect Sperrazza‘s substantial rights. We agree the factual inaccuracy in the indictment did not affect the defendant‘s substantial rights. Despite the error, the indictment notified Sperrazza of the precise transactions the Government alleged were structured. The cash deposits were erroneously referred to as checks, but they were not outside the scope of the offense charged because a defendant may be convicted of violating
B. Order of forfeiture
Sperrazza next argues the order compelling him to forfeit $870,238.99 violates the Excessive Fines Clause of the Eighth Amendment. A “forfeiture violates the Excessive Fines Clause if it is grossly disproportional to the gravity of a defendant‘s offense.” United States v. Bajakajian, 524 U.S. 321, 334, 118 S.Ct. 2028, 141 L.Ed.2d 314 (1998). We determine whether a fine is “grossly disproportional” by considering “(1) whether the defendant falls into the class of persons at whom the criminal statute was principally directed; (2) other penalties authorized by the legis-
First, we agree with the Government that Sperrazza‘s conduct places him “at the dead center” of the class of persons at whom
Second, we do not think the order of forfeiture is excessive in relation to the penalties authorized by the Congress and the Sentencing Commission. We follow three rules of thumb when comparing the amount subject to forfeiture to the penalties authorized by statute and by the Sentencing Guidelines. First, “if the value of the property forfeited is within or near the permissible range of fines under the sentencing guidelines, the forfeiture almost certainly is not excessive.” United States v. 817 N.E. 29th Dr., Wilton Manors, Fla., 175 F.3d 1304, 1310 (11th Cir. 1999). Second, a forfeiture “above either the statutory maximum fine or the Guidelines range” is not “presumptively invalid,” but will “receive closer scrutiny.” United States v. Chaplin‘s, Inc., 646 F.3d 846, 852 (11th Cir. 2011). Third, a “forfeiture far in excess of the statutory fine range ... is likely to violate the Excessive Fines Clause.” 817 N.E. 29th Dr., 175 F.3d at 1309 n. 9.
Under the relevant statute and Sentencing Guideline, Sperrazza was subject to a fine of up to $500,000. See
Finally, Sperrazza asserts the “district court‘s order permits the government to count and thus to forfeit the same funds ... twice” because the indictment “includes cash in and cash out.” As we have seen, the evidence shows Sperrazza structured some transactions by cashing checks and others by depositing cash into his account. He seems to imply the district court double counted some of the money he structured, presumably because some or all of the cash he deposited might have originated as checks he had previously cashed. As the Government points out, however, Sperrazza does not explain why this assertion is relevant to whether the order of forfeiture is grossly disproportionate. Whether sufficient evidence supports the amount the defendant is said to have structured is a different question than whether the amount to be forfeit is so disproportionate as to violate the Eighth Amendment. Cf. United States v. Dowling, 403 F.3d 1242, 1245 (11th Cir. 2005) (“[A]n objection based solely upon sufficiency of the evidence does not preserve a constitutional error“).
In any event, Sperrazza‘s passing reference to the possibility the district court double counted some of the money subject to forfeiture is not presented as a challenge to the sufficiency of the evidence. We will not, therefore, address whether sufficient evidence supports the district court‘s calculation of the amount subject to forfeiture. See Brown v. United States, 720 F.3d 1316, 1332 (11th Cir. 2013) (“[A] party seeking to raise a claim or issue on appeal must plainly and prominently so
III. Conclusion
Sperrazza is not entitled to relief on his claim the indictment is defective. The indictment properly charges him with structuring in violation of
Affirmed.
ROSENBAUM, Circuit Judge, concurring in part and dissenting in part.
During oral argument in this case, the Court, in effect, asked counsel for the government whether a salaried person who earned $9,000 a week and deposited it in cash weekly, intending at least in part to evade the reporting requirement, committed the crime of structuring under
Granted, most of us do not have the problem of trying to figure out what to do with our $9,000-per-week salary, but this same logic applies to any weekly salary payment under $10,000. And it does not end with weekly salary payments. As a result of today‘s ruling, in this Circuit, no matter how small a sum of money a person may possess or otherwise enjoy a right to control—even if only a few dollars—he may find himself facing structuring charges if he goes to the bank often enough to create the appearance to the government of engaging in a pattern of financial transactions of $10,000 or less. I suppose that we will discover in the coming years how frequent a bank visitor one must be to imperil himself, but, in any case, it is clear today that
I.
A. Congress Did Not Intend for the Anti-structuring Statute to Cover Transactions Where the Person Did Not Have Control of At Least $10,000
Beginning, as we must, with the statutory language, see CBS Inc. v. PrimeTime 24 Joint Venture, 245 F.3d 1217, 1222 (11th Cir. 2001),
[T]he proposed amendment would create the offense of structuring a transaction to evade the reporting requirements, without regard to whether an individual transaction is, itself, reportable under the Bank Secrecy Act. For example, a person who converts $18,000 in currency to cashier‘s checks by purchasing two $9,000 cashier‘s checks at two different banks or on two different days with the specific intent that the participating bank or banks not be required to file Currency Transaction Reports for those transactions, would be subject to potential civil and criminal liability. A person conducting the same transactions for any other reasons or a person splitting up an amount of currency that would not be reportable if the full amount were involved in a single transaction (for example, splitting $2,000 in currency into four transactions of $500 each), would not be subject to liability ....
S.Rep. No. 99-433, 22 (1986) (emphasis added).
This commentary could not state more straightforwardly that a person simply cannot commit the offense of structuring if he does not control more than $10,000, even if he has the specific intent to evade a reporting requirement. Despite this fact, the Court suggests that we look not at the amount that the person controlled at the time that she conducted a transaction of $10,000 or less but instead at the endpoint of all of the transactions that the government happens to choose to charge to see whether they add up to more than $10,000. Maj. Op. at 1122-23 & 1124 n. 4. I‘m guessing that they always will.
I respectfully disagree with the Majority‘s approach. This interpretation does not account for the phrase “splitting up an amount of currency that would not be reportable if the full amount were involved in a single transaction[.]” S.Rep. No. 99-433, 22 (1986) (emphasis added). The phrase lays bare congressional intent that a person necessarily control a hoard of more than $10,000 before she can structure transactions. To “split” means “[t]o separate ...; disunite.” Split, The Am. Heritage Dictionary of the English Language (4th ed. 2000). A person cannot disunite something that does not yet exist. Instead, as the two examples in the commentary illustrate—one involving the splitting up of $18,000 into two transactions of $9,000 each and the other involving the splitting up of $2,000 into four transactions of $500 each—a united whole must first exist before it can be disunited.3
B. The Regulatory Definition of “Structuring” Cannot Support the Conclusion that the Anti-structuring Statute Covers Transactions Where the Person Did Not Have Control of At Least $10,000
Nor does the regulatory definition of “structuring” somehow expand the breadth of
Structure (structuring). For purposes of § 1010.314, a person structures a transaction if that person ... conducts or attempts to conduct one or more transactions in currency, in any amount, at one or more financial institutions, on one or more days, in any manner, for the purpose of evading the reporting requirements.... “In any manner” includes, but is not limited to, the breaking down of a single sum of currency exceeding $10,000 into smaller transactions at or below $10,000. The transaction or transactions need not exceed the $10,000 reporting threshold at any single financial institution on any single day in order to constitute structuring within the meaning of this definition.
A review of the notice and comment materials regarding the promulgation of this regulation supports this construction. The Treasury Department based its definition of “structuring” on the concerns that Congress expressed in its reports in support of the enactment
The enactment of section 5324 clarified that all currency transaction structuring schemes designed to evade the reporting requirements are unlawful, regardless of whether the $10,000 threshold is met at a single financial institution on a single day.
Amendment to the Bank Secrecy Act Regulations Relating to Domestic Currency Transactions, 54 Fed.Reg. 3023 (Jan. 23, 1989). Against this background, it is clear that this explanation presumes a preexisting $10,000 sum, in implicit reliance on the purposes behind the enactment of
The Court‘s invocation of the phrase “but is not limited to” does not somehow alter the natural and intended understanding of the regulatory definition. I agree with the Court that the phrase “but is not limited to” could be viewed as supporting the notion that “dividing a sum the defendant has in hand is not the only way to violate the statute.” Maj. Op. at 1122.
Second, in fact, people have found ways to structure a sum of more than $10,000 other than by “dividing a sum the defendant has in hand” into packets of $10,000 or less each, that still otherwise meet the regulatory definition of “structuring.” For example, defendants have also used creative billing mechanisms, such as requiring clients to pay in numerous small installments, to avoid ever having “in hand” a sum that would trigger the reporting threshold. See, e.g., United States v. Chaplin‘s, Inc., 646 F.3d 846, 847 (11th Cir. 2011) (affirming forfeiture order imposed after defendant was convicted of structuring a transaction by instructing a client to pay in “three separate bundles” to avoid the reporting requirement).
Unlike the broad definition of “structuring” that the Court adopts today, this form of structuring satisfies the definition of “structuring” that Congress intended when it enacted the anti-structuring statute. Nevertheless, it does not fall neatly within the express example of structuring that the regulatory definition supplies, so it is covered by the “but is not limited to” phrase.
Finally and most important, reading the regulation as broadly as the Court does today causes the regulation to conflict with congressional intent in enacting the anti-structuring statute. But courts “must reject administrative constructions which are contrary to clear congressional intent.” Chevron, U.S.A. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 843 n. 9, 104 S.Ct. 2778, 2781 n. 9, 81 L.Ed.2d 694 (1984) (citations omitted). Indeed, “a regulation must be interpreted so as to harmonize with and further and not to conflict with the objective of the statute it implements.” Emery Min. Corp. v. Sec‘y of Labor, 744 F.2d 1411, 1414 (10th Cir. 1984). Because the Court‘s interpretation of the regulation directly conflicts with congressional intent in enacting
C. The Precedent from the Seventh and Eighth Circuits Is Not Persuasive
It is true, as the Court points out, that two other circuits have reached the contrary conclusion, holding that a person need not have a right to control a sum of more than $10,000 before that person can engage in structuring. See Maj. Op. at 1121 (citing United States v. Sweeney, 611 F.3d 459, 471 (8th Cir. 2010), and United States v. Van Allen, 524 F.3d 814, 820 (7th Cir. 2008)). But neither of these courts appears to have engaged in any analysis of the language or considered the legislative intent of
In Van Allen, for example, the analysis first acknowledged that the court had previously made the statement in United States v. Davenport, 929 F.2d 1169 (7th Cir. 1991), that the intent of the anti-structuring statute was to prevent individuals from evading the reporting requirement “‘by breaking their cash hoard into enough separate deposits to avoid activating the requirement.‘” Van Allen, 524 F.3d at 820-21 (quoting Davenport, 929 F.2d at 1173). Then the court concluded simply,
We did not hold, as Van Allen intimates, that this was the only method of proving structuring—indeed, we further defined “structuring” as “altering the form of a transaction in order to avoid activating the bank‘s duty to file a currency transaction report.” This definition meshes well with that in the Treasury regulation and accurately describes Van Allen‘s activities in this case.
Id. at 821 (internal citations omitted). That‘s it.5
Sweeney‘s analysis followed a similar path. The court began by setting forth the regulatory definition of “structuring” and then commented only that, “[i]n our view, the regulations accurately describe the various ways that a person may commit the offense of currency structuring in violation of
But even Sweeney‘s reliance on Phipps was misplaced. Phipps did not hold or even suggest that
In short, neither Sweeney nor Van Allen set forth any analysis of the statutory language or considered the legislative intent of
D. The Rule of Lenity Does Not Abide the Court‘s Interpretation of § 5324(a)(3)
Finally, again, to the extent to which
This venerable rule not only vindicates the fundamental principle that no citizen should be held accountable for a violation of a statute whose commands are uncertain, or subjected to punishment that is not clearly prescribed. It also places the weight of inertia upon the party that can best induce Congress to speak more clearly and keeps courts from making criminal law in Congress‘s stead. Id.
If, as the Court holds,
As previously discussed, a natural reading of
II.
Though I respectfully disagree with the Court‘s broad construction of
At trial, the government presented evidence that on 15 separate days in 2007 and 13 separate days in 2008, Sperrazza made cash deposits and cashed checks totaling over $10,000. The government‘s evidence demonstrated that when Sperrazza conducted these transactions he first deposited the cash and then cashed the checks. Because of this sequence of events, the cash amounts Sperrazza had were necessarily distinct from the cash received from the checks, so Sperrazza had access to and control over $10,000 on each of those days but chose to transact in cash amounts under $10,000. In addition, as the Court
Under plain-error review, which applies here because Sperrazza did not raise this particular error, even assuming plain error in how the indictment was charged, Sperrazza has shown no prejudice. See United States v. Vernon, 723 F.3d 1234, 1260 (11th Cir. 2013) (reviewing for plain error unpreserved challenges to an indictment and affirming convictions where, even if plain error had occurred, defendant failed to prove prejudice). All of the smaller transactions comprising each of the reportable sums during 2007 and 2008 were set forth in the two separate structuring counts in the indictment, so Sperrazza had notice of the transactions that the government contended constituted structuring.7 For these reasons, I concur in the majority‘s ultimate conclusion that Sperrazza‘s conviction must be affirmed.
DOUGLAS H. GINSBURG
UNITED STATES CIRCUIT JUDGE
Moises ESPINOSA, Petitioner-Appellant, v. SECRETARY, DEPARTMENT OF CORRECTIONS, Respondent-Appellee.
No. 14-10581.
United States Court of Appeals, Eleventh Circuit.
Oct. 23, 2015.
Notes
The government‘s theory ... is that Lang received from one source 21 payments exceeding $10,000 over a period of eight months, he had those larger payments broken into multiple checks each of which was less than $10,000, and he then cashed those checks separately in a way that evaded the reporting requirements. That is all well and good, but it is not what is alleged in the indictment. Instead of a series of counts each alleging a payment or payments totaling more than $10,000 that were structured into checks of smaller amounts, which were then 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.
732 F.3d at 1249 (emphasis added). As this excerpt shows, while we identified “[t]he structuring itself, and not the individual deposit” as the unit of prosecution, id. at 1248 (citation and internal quotation marks omitted), we further indicated that the “structuring itself,” meaning the prosecutable unit, refers to the payment or group of payments ”totaling more than $10,000 that were structured into checks of smaller amounts, which were then cashed.” Id. at 1249 (emphasis added). In other words, we understood structuring to first require a hoard of more than $10,000, from which smaller transactions were “then” (i.e., later) engaged in. Our description of how the government should have charged the conduct also reveals that we thought that there should have been a “series of counts,” meaning 21 counts based on the “21 payments exceeding $10,000 over a period of eight months,” which were then “broken into multiple checks each of which was less than $10,000,” and cashed; we did not suggest that the government should have charged a single count stemming eight months.