USA v. Lot 3, Marcus Estate CV-91-391-M 05/09/96 UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

United States of America, Plaintiff,

v. Civil No. 91-391-M

A Certain Parcel of Land Known as Lot 3 of the Subdivision of Land, Estate of Marion Brown Marcus, Located on Long Island, Moultonboro, New Hampshire, Defendant.

O R D E R

Plaintiff, the United States, brought a complaint in rem to

forfeit and to condemn the defendant parcel of property under

(a)(1)(A), alleging that the property was involved in

or is traceable to a violation of

(a) and 5324.

The magistrate judge and this court (Loughlin, J.) determined

that the government had the reguisite probable cause to bring its

in rem civil forfeiture action. Claimants, Francis and Cynthia

Holland, now move to dismiss, arguing that the government must

prove, but has not alleged, that they wilfully violated

. For the reasons discussed below, claimants' motion is

denied. I. DISCUSSION

A. Statutory Framework

In 1991 the government brought this action under

seeking to forfeit property owned by the claimants and

allegedly involved in monetary transactions that violated

. In order to understand claimants' motion to

dismiss, a brief overview of the relevant statutory provisions is

helpful.1

The main currency reporting statute,

,

reguires domestic financial institutions to file a currency

transaction report ("CTR") with the Secretary of the Treasury

whenever the institution is involved in a currency transaction in

an amount in excess of $10,000.

(a) (1991);

(a)(1). A related statute,

(3),

directly implicated here, prohibits individual persons from

structuring their transactions with financial institutions for

the purpose of evading the reporting reguirements of section

5313.2 In other words, an individual may not segment a large sum

1 Because this action was instituted in 1991, the parties agree that the statutory provisions in effect in 1991 are applicable.

2

reads in full: No person shall for the purpose of evading the reporting reguirements of section 5313(a) with respect to such

2 of money into several transactions of less than $10,000 in order

to cause a bank to avoid filing a CTR.

Congress provided three separate mechanisms through which

the government may enforce the reguirements of 31 U.S.C § 5324

against individuals. First, under

, the

government may impose criminal penalties upon " [a] person

willfully violating this subchapter."

(a) (1991)

(emphasis added). Second, under

(a) (4), the

government "may impose a civil money penalty on any person who

willfully violates any provision of section 5324.

(a)(4) (1991) (emphasis added). Finally, under

the government may seek civil forfeiture of "[a]ny

property, real or personal, involved in a transaction . . . in

violation of section . . . 5324 of title 31 . . . or any property

traceable to such property."

(a)(1)(A) (1981).

transaction -- (1) cause or attempt to cause a domestic financial institution to fail to file a report reguired under section 5313(a) ; (2) cause or attempt to cause a domestic financial institution to file a report reguired under section 5313(a) that contains a material omission or misstatement of fact; or (3) structure or assist in structuring, or attempt to structure or assist in structuring, any transaction with one or more domestic financial institutions.

(1991).

3 Here, the government has chosen the third route, seeking

forfeiture under

. Specifically, the government

alleges that claimants purchased the targeted property by

segmenting $130,000 into several cash payments of less than

$10,000 in order to avoid the reporting reguirements of

(a). Claimants now move to dismiss, arguing that the

government must prove, but has not alleged, that claimants

"willfully" violated

.

B. Willfulness

In Ratzlaf v. United States, 114 S. C t . 655 (1994), the

Supreme Court held that Congress' use of "willfully" in

(a) reguires the government to prove that a criminal

defendant charged under that statute "knew the structuring in

which he engaged was unlawful" under

. Ratzlaf,

114 S. C t . at 663. Absent evidence to the contrary. Congress'

use of "willfully" in

(a) (4) reguires the

government to prove the same high level of intent in order to

impose a civil money penalty on a person who violates section

5324. Ratzlaf, 114 S. C t . at 660 ("A term appearing in several

places in a statutory text is generally read the same way each

time it appears.").

4 In short, in order to impose criminal or civil money

sanctions on a defendant, the government must prove more than

that the defendant structured a transaction for the purpose of

causing a financial institution not to file a CTR as reguired by

(a). Rather, the government must show that the

defendant knew that his or her structuring was itself illegal

under

. Ignorance of the law i_s an excuse for a

defendant in an action instituted under section 5321 or 5322.

Ratzlaf, 114 S. C t . at 663.

In contrast to sections 5321 and 5322, both of which

explicitly state that a defendant must "willfully" violate

section 5324,

allows the government to seek civil

forfeiture of any property involved in or traceable to a

"transaction in violation of section . . . 5324."

(a)(1)(A). By its terms, then, section 981 does not contain

a willfulness reguirement.

Despite the lack of an explicit willfulness reguirement in

section 981, claimants urge this court to read a heightened mens

rea reguirement into the statute and reguire the government to

show that they violated their known legal duty not to structure

currency transactions. As noted above, claimants' reguest is

directly at odds with the language of the section 981, which does

5 not make knowledge of the duties imposed by section 5324 a

prerequisite to forfeiture. The rule that ignorance of the law

is no excuse is "'deeply rooted in the American legal system,1

and exceptions to it must not be casually created." United

States v. Rogers,

(4th Cir. 1992) (quoting

Cheek v. United States,

(1991)). Congress must

express its intent to depart from this time-honored rule.

Ratzlaf, 114 S. C t . at 662-63. Here, Congress has indicated no

such intent in the language of

.

Claimants' proposed construction of

(a) (1) (A)

also directly contradicts the Supreme Court's interpretation of

that statute. In Ratzlaf, the Court noted, "Had Congress wished

to dispense with the [heightened willfulness] requirement, it

could have furnished the appropriate instruction."

.

For instance, "Congress did provide for civil forfeiture without

any 'willfulness' requirement in the Money Laundering Control Act

of 1986. See

(a) (subjecting to forfeiture 'any

property, real or personal, involved in a transaction . . . in

violation of section 5313 (a) or 5324(a) or title 31 . . . 1) . . .

."

at 662 n.16. While this interpretation of section 981 by

the Supreme Court is dicta, it provides strong support for this

court's conclusion that the government need not show that the

6 claimants violated a known legal duty in order to subject their

property to forfeiture under

.

The court is cognizant of the disproportionately harsh

results that could flow from such an interpretation. In order to

impose a civil money penalty, which may not exceed the amount of

currency involved in the structured transaction, see

(a)(4)(B), the government must prove a willful violation of

section 5324. In this case, for example, the maximum civil money

penalty would be $130,000. But in order to obtain forfeiture of

all property traceable to a structured transaction, here property

valued at $235,000, the government need not prove willfulness.

Through civil in rem forfeiture, the government, can, in effect,

take more from the claimants by proving less.3 Despite this

anomaly. Congress' expression of its intent and the Supreme

Court's apparent interpretation of that intent dictate the result

in this case. Claimants' motion to dismiss must be denied.

3 The court does note, however, that in rem civil forfeiture under

(a)(1)(A) may be subject to the Eighth Amendment's Excessive Fines Clause. See Austin v. United States,

(1993); United States v. Tavlor,

(4th Cir. 1994) .

7 II. CONCLUSION

The government need not allege or prove that claimants

willfully violated

in order to seek forfeiture

of claimants' property under

(a)(1)(A).

Therefore, claimants' motion to dismiss must be denied.

SO ORDERED.

Steven J. McAuliffe United States District Judge

May 9, 1996

cc: David L. Broderick, Esg. Charles R. Parrott, Esg.