US v. Aversa, Crim. No. 90-76-01-L

• Decision Date: 29 April 1991
• Docket Number: 90-76-02-L.,Crim. No. 90-76-01-L
• Citation: 762 F. Supp. 441
• Parties: UNITED STATES of America v. Daniel AVERSA, Vincent Mento.
• Court: U.S. District Court — District of New Hampshire

762 F. Supp. 441

UNITED STATES of America v. Daniel AVERSA, Vincent Mento.

Crim. Nos. 90-76-01-L, 90-76-02-L.

United States District Court, D. New Hampshire.

April 29, 1991.

Robert V. Johnson, Concord, N.H., for Daniel Aversa.

Clifford J. Ross, Manchester, N.H., for Vincent Mento.

MEMORANDUM OPINION

LOUGHLIN, District Judge.

The defendants were convicted in this court of charges relating to the structuring of currency transactions to avoid the filing of a Currency Transaction Report.

After this court had ruled on several preliminary motions, Mr. Aversa pled guilty to one count of structuring a currency transaction to avoid the reporting laws, but retained the right to appeal certain questions of law. Mr. Mento was convicted after a jury trial.

Mr. Mento has asked this court to set aside his conviction in light of the recent Supreme Court decision in Cheek v. United States, ___ U.S. ___, 111 S.Ct. 604, 112 L.Ed.2d 617 (1991). Mr. Aversa has raised similar issues in his "Memorandum Relative to Disposition."

The defendants have both been sentenced, but neither is in custody. Therefore this court does not have jurisdiction under 28 U.S.C. § 2255 to set aside the convictions. United States v. Michaud, 901 F.2d 5 (1st Cir.1990) (per curiam). Nor may this court consider a motion for a new trial or a motion for judgment of acquittal as the time in which such motions may be filed has expired. Fed.R.Crim.P. 29, 32.

In cases where relief under 28 U.S.C. § 2255 would be available but for the failure to satisfy the custody requirement, this court may consider the motion as a writ of error coram nobis. This writ has been preserved under the All Writs Act, 28 U.S.C. § 1651(a), in contexts in which it has not been repealed or replaced. See United States v. Morgan, 346 U.S. 502, 74 S.Ct. 247, 98 L.Ed. 248 (1954); cf. Fed.R. Civ.P. 60 (replacing coram nobis in civil actions).

To be entitled to relief under this writ, the defendant must show that his trial contained error, that that error affected the trial's fundamental fairness and that the writ is the only relief available to him to protect him from further harm. See United States v. Morgan, 346 U.S. at 512, 74 S.Ct. at 253; United States v. Michaud, 925 F.2d 37 (1st Cir.1991); see also, United States v. Addonizio, 442 U.S. 178, 186, 99 S.Ct. 2235, 2241, 60 L.Ed.2d 805 (1979) (collateral attack under 28 U.S.C. § 2255). After a review of the facts, the court will consider each of these requirements.

Statement of facts.

There was little dispute as to the facts of this case. Mr. Mento was involved in a legitimate real estate transaction with his partner, Daniel Aversa. Mr. Aversa was experiencing marital problems and did not want his wife to be able to trace his assets¹. He therefore asked Mr. Mento to give him his share of the proceeds in cash. Both men knew that banks were required to fill out reports on cash transactions of more than $10,000, but it is not clear that they understood the actual mechanics of the reporting requirement.

The two men did not want the currency transaction to be reported. They therefore structured their transaction to avoid the requirement that the bank fill out the Currency Transaction Reports. While the court found at the sentencing hearing that Mr. Aversa had initiated the structuring, the government argued that keeping the transactions under $10,000 was Mr. Mento's idea. In any event, the government showed that at the time Mr. Mento agreed to let Mr. Aversa deposit his share of the proceeds into Mr. Mento's account, the two men agreed to do two things in order to avoid having the Internal Revenue Service (IRS) erroneously assume that the money was income to Mr. Mento. First, Mr. Aversa signed a letter for Mr. Mento stating that all of the money belonged to him, and second Mr. Aversa kept his deposits under $10,000 in order to avoid raising any "red flags" with the IRS.

Mr. Aversa, therefore, made several deposits to and withdrawals from Mr. Mento's bank account of cash in amounts just under $10,000. The government alleged that on at least one occasion Mr. Aversa gave a false name to a bank teller, but there was no evidence that this was part of the two men's plan.

That is the extent of the conduct that the government alleged, and quite certainly the most that the government proved, in this case. There was no evidence that the money involved came from illegal activities. The prosecutor did not dispute this and on several occasions proffered that the government had found no evidence that the money was ill-gotten.² In fact, if one believes the version of the facts offered by the government at sentencing, one can only conclude that the Aversa letter and the structuring were both designed to prevent the IRS from getting the false impression that the money belonged to Mr. Mento rather than Mr. Aversa.

Although Mr. Mento was correct when he advised Mr. Aversa that hiding the money from his wife was unwise, and while, had Mr. Aversa gone through with his plan, hiding the money would have been wrong, this is not the conduct with which the defendants were charged and the United States never claimed that the defendants' underlying conduct was violative of federal law. The defendants were not trying to avoid taxes, but they were trying to avoid having the IRS think that money belonging to Mr. Aversa actually belonged to Mr. Mento.

Mr. Aversa used a false name at the bank. He explained that he thought that the teller knew his wife. When confronted with this by investigators the first time, he said he had not used a false name. He immediately tried to correct this by calling the Assistant U.S. Attorney to explain that he had been caught off guard and embarrassed when it had been brought up. The court finds the two men to be credible witnesses. They were honest to the government to their own detriment even when they had a right to remain silent. Neither man contradicted himself or changed his story. In fact, Mr. Aversa's explanation is consistent with one of the versions of events offered by Assistant U.S. Attorney Walsh at the sentencing. When arguing for a jail sentence for Mr. Mento Mr. Walsh claimed that Mr. Aversa had no reason not to file a CTR in this case as he had in the past:

The conditions were that Mr. Aversa execute a letter admitting the money was his in case the IRS came around asking Mr. Mento where this money came from and why it wasn't reported on the appropriate tax form; and secondly that the transaction be structured in such a way that the $10,000 reporting requirement not be triggered. Mr. Mento set those ground rules....

I think it's fair to say that but for Mr. Mento's insistence the law would not have been violated. Mr. Aversa had a currency report to file in his own name in the past and for all that anybody knows didn't object to it then, but because he agreed with and assisted Mr. Mento in the structuring of the money into this account he is and stands before the court convicted of these violations.

Disposition transcript at 26, 27 (document no. 45).

On the other hand, when Mr. Walsh was discussing Mr. Aversa's sentence, he argued that Mr. Aversa lied to the teller about his name so that only Mr. Mento's name and not his own would go on the CTR if one was filed:

Mr. Aversa also made false statements with respect to the appearance at the bank and lying about his identity, the government submits for more serious reason than he admitted to, which is if a report was to be filed it would be in the name of John Kelly, not Daniel Aversa; that Numerica Bank would not know other than Vincent Mento what other name to put on that CTR....

Id. at 19, 20.

There was no evidence that Mr. Mento or Mr. Aversa meant to hide the transaction from the IRS. In fact, the evidence showed that Mr. Mento had reported the transaction fully on his tax return before the government investigation and there was evidence at the sentencing that Mr. Aversa also reported his share of the proceeds on his tax return.

The overwhelming weight of the evidence showed that the two men did not believe that they were breaking any law. When they were called in to speak with an IRS special agent they told their stories. The two admitted that they structured the transaction to avoid the reporting requirement but assured the agent that they were doing nothing illegal. They just wanted to avoid raising any "red flags" that would give the IRS a false impression. When the agent called in the Assistant U.S. Attorney who would later prosecute the case, both men once again told the full stories. The Assistant U.S. Attorney must have thought that there would be little factual dispute about these interviews because he acted as prosecutor in this case, despite the fact that the interviews were not recorded and the IRS special agent had, for a time, misplaced his original notes. Had there been a factual dispute that would have required the Assistant U.S. Attorney to be a possible witness, the court trusts that he would not have attempted to try the case. The two men obviously thought that because they had done nothing illegal they could tell the special agent everything.

Mr. Mento was so sure that the truth would exonerate him that he told the story a third time. This time, much to his attorney's dismay, he told it to the jury from the witness stand. Mr. Mento told the jury that he knew about the reporting requirement but he thought that he had avoided breaking the law by structuring his transaction.

At Mr. Mento's trial, the prosecutor relied mostly on Mr. Mento's own words to convict him. There was no evidence that Mr. Mento knew that structuring was illegal. The evidence showed just the opposite to be the case. Mr. Mento's only defense was that he did not know he was breaking the law. The prosecutor did not refute this. Instead, the prosecutor argued that Mr. Mento's knowledge of the criminality of structuring was irrelevant. Knowledge of the reporting...