U.S. v. Heyman, 1377

• Decision Date: 27 June 1986
• Docket Number: D,No. 1377,1377
• Citation: 794 F.2d 788
• Parties: -5377, 55 USLW 2053, 86-2 USTC P 9511 UNITED STATES of America, Appellee, v. Alan HEYMAN, Defendant-Appellant. ocket 86-1129.
• Court: U.S. Court of Appeals — Second Circuit

Page 788

794 F.2d 788

58 A.F.T.R.2d 86-5377, 55 USLW 2053, 86-2

USTC P 9511

UNITED STATES of America, Appellee, v. Alan HEYMAN, Defendant-Appellant.

No. 1377, Docket 86-1129.

United States Court of Appeals Second Circuit.

Submitted June 5, 1986.

Decided June 27, 1986.

Richard Rosenberg, New York City, for defendant-appellant.

Linda Imes, Asst. U.S. Atty. (Rudolph Giuliani, U.S. Atty. for S.D.N.Y., and Bruce Green, Asst. U.S. Atty., of counsel), for appellee.

Before KAUFMAN, VAN GRAAFEILAND and MINER, Circuit Judges.

IRVING R. KAUFMAN, Circuit Judge:

We are asked to determine whether a statute proscribing certain conduct by financial institutions was properly applied in prosecuting an employee who caused his brokerage firm to unwittingly violate the statute. We have previously held that one who causes another to commit a crime may be punished as a principal pursuant to federal law, although the substantive criminal statute does not apply to him by its terms. Accordingly, we affirm the conviction.

Alan Heyman, an account executive with Merrill Lynch, Pierce, Fenner & Smith, Inc. ("Merrill Lynch"), shared responsibility for several customer accounts with another account executive, Martin Leyton. One of them, jointly held by Sam Silber and his wife, Evelyn, was opened on July 21, 1981. In February 1982, the Silbers sought to deposit a large amount of cash into their account with Merrill Lynch. Having failed to report the cash as income to the Internal Revenue Service, however, the Silbers also did not wish Merrill Lynch to report the deposit to the IRS. ¹ Federal law provides that a financial institution must file a Currency Transaction Report ("CTR") with the IRS for all transactions involving amounts over $10,000. 31 U.S.C. Sec. 5313. ²

To avoid the filing of a CTR, Heyman and Leyton devised a scheme to circumvent the requirements of Secs. 5313 and 5322 of the Bank Secrecy Act, 31 U.S.C. Sec. 5311 et seq. (the "Act"). On February 11, 1982, Leyton opened two new accounts, one in the name of Sam Silber and the other in the name of Evelyn Silber. Less than one week later, Heyman opened an account bearing the name of the Silbers' daughter, Pearl Schmutter. On February 16, Heyman deposited $9,900 into each of these three accounts as well as into the Silbers' joint account. Accordingly, the total cash invested in these four accounts on February 16 was $39,600.

On May 5, 1982, Heyman deposited $9,000 into the joint account of Evelyn and Sam Silber, and $8,000 into Sam Silber's individual account, again avoiding the submission of a CTR with respect to these transactions. A few days later, Heyman transferred the $8,000 from Sam Silber's account to the account Sam held jointly with his wife.

Heyman undertook his most flagrant attempt to sidestep the reporting requirements on July 26, 1982. On that day, he received a briefcase from Sam Silber containing $70,000 in cash and brought it to his office at Merrill Lynch. There Heyman opened the following joint and individual accounts in the names of Silber and his relatives:

Susan Mark/Pearl Schmutter

Sam Silber/Susan Mark

Evelyn Silber/Susan Mark

Sam Silber/Pearl Schmutter

Evelyn Silber/Pearl Schmutter

Susan Mark

Heyman deposited $7,000 into each of the six new accounts and the four pre-existing accounts. The following day, at Heyman's instructions, all of the money was transferred into the joint account of Sam and Evelyn Silber. Because each of the deposits on July 26 involved amounts less than $10,000 Merrill Lynch did not file CTRs for the transactions.

As a result of these deposits and a similar transaction structured by Heyman and Leyton for another client, ³ the two account executives were questioned by counsel for Merrill Lynch in March 1983. Leyton was subsequently dismissed by Merrill Lynch, and he agreed to testify for the Government pursuant to a cooperation agreement. Heyman was indicted on charges of conspiracy, 18 U.S.C. Sec. 371, and for causing a financial institution to fail to file a Currency Transaction Report for domestic currency transactions involving more than $100,000 in a twelve-month period. 31 U.S.C. Secs. 5313(a) and 5322(b). ⁴ After a five-day jury trial, Heyman was convicted on both counts, and he was sentenced to concurrent terms of unsupervised probation for three years.

DISCUSSION

Concerned that the nation's financial institutions were serving a larger and increasingly important role in the laundering of unreported income or illegally obtained funds, Congress enacted the Bank Secrecy Act in 1971. The Act provides for "certain reports or records where they have a high degree of usefulness in criminal, tax, or regulatory investigations or proceedings." The Secretary of the Treasury is authorized to prescribe by regulation specific recordkeeping and reporting requirements for financial institutions. California Bankers Ass'n v. Schultz, 416 U.S. 21, 94 S.Ct. 1494, 39 L.Ed.2d 812 (1974). Pursuant to that authority, the Secretary implemented 31 C.F.R. Sec. 103.22, requiring all financial institutions to file a report for every currency transaction over $10,000.

On appeal, Heyman contends that 31 U.S.C. Sec. 5313 and the regulations promulgated thereunder proscribe only certain conduct by financial institutions, and that an individual cannot be convicted of violating the terms of the Act. The Government counters that Heyman's conviction is firmly supported by 18 U.S.C. Sec. 2(b), which provides that one who willfully causes another to commit a crime is punishable as a principal.

In weighing the merits of these arguments, we acknowledge, and the Government concedes, that Heyman did not have a legal duty to file CTRs in his capacity as an account executive at Merrill Lynch. The cashier's department carried that responsibility. We agree with the Government, however, that criminal liability may attach to Heyman's actions through the operation of 18 U.S.C. Sec. 2(b), which provides:

Whoever willfully causes an act to be done which if directly performed by him or another would be an offense against the United States, is punishable as a principal.

The proper application of Sec. 2(b) has been the subject of considerable discussion and debate. We have previously held that pursuant to Sec. 2(b) an individual can be held culpable for causing a third person to commit a criminal act where the defendant lacks the legal capacity to commit the substantive crime. United States v. Ruffin, 613 F.2d 408 (2d Cir.1979); United States v. Wiseman, 445 F.2d 792 (2d Cir.1971), cert. denied, 404 U.S. 967, 92 S.Ct. 346, 30 L.Ed.2d 287 (1972). In Ruffin, the defendant was a personal friend of Olga Defreitas, the director of a federal agency. Ruffin persuaded Defreitas fraudulently to procure approval for the agency to continue renting defendant's unfit premises. The defendant was convicted of fraud in obtaining federal financing, although the relevant statute proscribed certain acts only if committed by a "director" or an "employee" of a federal agency. Although Defreitas was acquitted of all counts, Ruffin was found guilty pursuant to Sec. 2(b). In affirming the conviction, Judge Mansfield noted that Sec. 2(b), as amended in 1951, represented an effort by Congress to expand the scope of criminal liability "so that a person who operates from behind the scenes may be convicted even though he is not expressly prohibited by the substantive statute from engaging in the acts made criminal by Congress." 613 F.2d at 413.

Ruffin reaffirmed our previous holding in United States v. Wiseman, supra, that an individual could be found guilty of willfully causing an innocent intermediary to commit a crime, where the intermediary had the legal capacity to commit the offense but the defendant did not. In Wiseman, two private process servers had willfully caused the Clerk of the New York City Civil Court to enter default judgments against parties who in fact had not been properly served. The applicable criminal statute made such acts a crime only if committed "under color of ... law," a category which included the Court Clerk but not the defendants. This Court affirmed the convictions, reasoning that "if defendants 'willfully caused' the Clerk to enter such judgments, defendants would be culpable to the same extent as the Clerk would be assuming the Clerk had the same knowledge as was possessed by defendants as to the falsity of the papers." 445 F.2d at 795.

Our holdings in both Ruffin and Wiseman relied on the 1951 amendment of Sec. 2(b), which broadened the scope of criminal liability. Before the amendment, Sec. 2(b) provided:

Whoever willfully causes an act to be done which if directly performed by him would be an offense against the United States, is punishable as a principal.

In 1951, Congress amended Sec. 2(b) to impute criminal liability to anyone who "willfully causes an act to be done which if directly performed by him or another would be an offense against the United States." (emphasis added). Both Ruffin and Wiseman held that the addition of the words "or another" reflected a desire by Congress to hold criminally liable those who cause others to commit crimes, without regard to the guilt or innocence of the intermediary or the legal capacity of the defendant to commit the crime.

The application of this principle is dispositive in this case. Heyman himself had no legal responsibility to file CTRs. By structuring his customers' deposits so that no single transaction involved an amount greater than $10,000, however, Heyman willfully caused Merrill Lynch to fail to file the appropriate CTRs. Had Merrill Lynch, a financial institution, structured the transactions as Heyman did, it would have violated federal law. Because Sec. 2(b) holds liable as a principal any person who willfully causes an act to be done which if directly performed by another (here, Merrill Lynch) would be a federal offense, Heyman is criminally liable for violating 31 U.S.C. Secs. 5311 and ...