FINANCIAL FACILITATION
OF CRIMINAL ACTIVITY
[MONEY LAUNDERING]
(N.J.S.A.
2C:21-25b(2))
[Concealment Prong] model jury charge
Count ____ of the Indictment charges the
defendant with the crime of Financial Facilitation of Criminal Activity. The Statute upon which this count of the
Indictment is based reads as follows:
A person is guilty of a crime if the
person engages in a transaction involving property known or which a reasonable
person would believe to be derived from criminal activity knowing that the
transaction is designed in whole or in part:
(a) to
conceal or disguise the nature, location, source, ownership or control of the
property derived from criminal activity
or
(b) to
avoid a transaction reporting requirement under the laws of this State or any
other state or of the United States.
In order for you to find the defendant
guilty of this charge, the State must prove each of the following elements
beyond a reasonable doubt:
1.
the defendant knowingly
engaged in a transaction involving property;
2.
the defendant knew, or a
reasonable person would have believed, that the property was derived from
criminal activity;
3. the
defendant knew that the transaction was designed in whole or in part:
a. to
conceal or disguise the nature, location, source, ownership or control of the
property derived from criminal activity;
or
b.
to avoid a transaction reporting
requirement under the laws of this State or any other state or of the United States.
The first element the State must prove
beyond a reasonable doubt is the defendant knowingly engaged in a transaction
involving property. Here the State alleges that this property included __________________ [describe
property].
[If the defendant is not an
individual person, charge the following]
A person means any corporation,
unincorporated association or any other entity or enterprise[1]
which is capable of holding a legal or beneficial interest in property.[2]
[Charge
in all cases]
Property means anything of value [read
appropriate phrases:], including real estate, tangible and intangible personal
property, trade secrets, contract rights, choses in action and other interests
in or claims to wealth, admission or transportation tickets, captured or
domestic animals, food and drink, electric, gas, steam or other power, financial
instruments, information, data and computer software, in either human readable
or computer readable form, copies or originals.[3] Property includes any benefit or interest
without reduction for expenses incurred for acquisition, maintenance or any other
purpose.[4]
A person acts knowingly with respect to
the nature of his/her
conduct of the attendant circumstances if he/she
is aware that his/her
conduct is of that nature, or that such circumstances exist, or he/she
is aware of the high probability of their existence. A person acts knowingly as to a result of his/her
conduct if he/she is aware that it is practically certain that that conduct
will cause such a result. Knowing, with
knowledge, or equivalent terms have the same meaning.
Knowledge is a condition of the
mind. It cannot be seen. It can only be determined by inferences from
conduct, words or acts. Therefore, it is
not necessary for the State to produce witnesses to testify that a particular
defendant stated, for example, that he/she acted with knowledge when he/she
had engaged in a particular act. It is
within your power to find that proof of knowledge has been furnished beyond a reasonable
doubt by inference which may arise from the nature of the acts and the
surrounding circumstances.
The second element the State must prove
beyond a reasonable doubt is that the defendant knew, or a reasonable person
would have believed that the property was derived from criminal activity.
The term “derived from” means obtained
directly or indirectly from, maintained by or realized through.[5]
For the purposes of this section,
property is known to be derived from criminal activity if the person knows that
the property involved represents proceeds from some form, though not
necessarily which form, of criminal activity.[6]
In other words, the defendant must know
that the transaction involved criminally derived property but the defendant
need not have known that the subject property was derived from specific
unlawful activity.[7] Any criminal activity will suffice.[8]
For the purposes of this section,
property is known to be derived from criminal activity if the person knows that
the property involved represents proceeds from some form, though not
necessarily which form, of criminal activity.[9]
You may infer that the defendant had this
requisite knowledge if you find the following:
(1) the
property is transported or possessed in a fashion inconsistent with the ordinary
or usual means of transportation or possession of such property; and
(2) the
property is discovered in the absence of any documentation or other indicia of
legitimate origin or right to such property.[10]
An inference is a deduction of fact that
may be drawn logically and reasonably from another fact or group of facts
established by the evidence. Whether or
not an inference should be drawn is for you to decide using your own common
sense, knowledge and everyday experience.
Ask yourselves is it probable, logical and reasonable. However, you are never required or compelled
to draw an inference. You alone decide
whether the facts and circumstances shown by the evidence support an inference
and you are always free to draw or not to draw an inference. If you draw an inference, you should weigh it
in connection with all the other evidence in the case, keeping in mind that the
burden of proof is upon the State to prove all the elements of the crime beyond
a reasonable doubt.[11]
The third element the State must prove
beyond a reasonable doubt is that the defendant knew that the transaction was
designed in whole or in part:
a. to
conceal or disguise the nature, location, source, ownership or control of the
property derived from criminal activity;
or
b.
to avoid a transaction reporting
requirement under the laws of this State or any other state or of the United States.
[With
regard to subparagraph a]
To conceal means to put out of sight,
hide, to keep from another’s knowledge, to keep secret.[12]
To disguise means to make appear
different from usual so as to be unrecognizable; to hide or obscure the
existence or real nature of.[13]
[With
regard to subparagraph b]
Among the factors that you may consider
in determining that a transaction has been designed to avoid a transaction
reporting requirement shall be whether the person, acting alone or with others,
conducted one or more transactions in currency, in any amount, at one or more
financial institutions, on one or more days, in any manner.[14]
The phrase “in any manner” includes the
breaking down of a single sum of currency exceeding the transaction reporting
requirement into smaller sums, including sums at or below the transaction
reporting requirement, or the conduct of a transaction, or series of currency transactions,
including transactions at or below the transaction reporting requirement.[15]
The transaction or transactions need not
exceed the transaction reporting threshold at any single financial institution
on any single day in order to demonstrate a violation of this section of the
law.[16]
Here,
the State alleges _______ [describe the transaction reporting requirement
alleged to have been violated].[17]
[Charge
in all cases]
If you find that the State has proven
beyond a reasonable doubt each of these elements, then you must find the
defendant guilty. If, on the other hand,
you find that the State has failed to prove any one of these elements beyond a
reasonable doubt, then you must find the defendant not guilty.
The State must prove the amount of the
property involved beyond a reasonable doubt.
If you found the State has proven all the elements of the offense(s)
charged beyond a reasonable doubt, then you must indicate whether you find that
the State has proven the amount of the property involved beyond a reasonable
doubt
[Choose
appropriate]
(1) is
$500,000.00 or more;
(2) is
at least $75,000.00 but less than $500,000.00;
(3) is
less than $75,000.00.[18]
The
State must prove beyond a reasonable doubt that the property involved has some
value.
As I indicated to you previously,
property means anything of value [choose appropriate phrases:], including real
estate, tangible and intangible personal property, trade secrets, contract
rights, choses in action and other interests in or claims to wealth, admission
or transportation tickets, captured or domestic animals, food and drink,
electric, gas, steam or other power, financial instruments, information, data
and computer software, in either human readable or computer readable form,
copies or originals.[19] Property includes any benefit or interest
without reduction for expenses incurred for acquisition, maintenance or any
other purpose.[20]
Value means the fair market value of the
property at the time and place of the alleged operative act.[21] Fair market value is the price that a buyer
would be willing to pay and a seller would be willing to accept if both parties
were aware of all the relevant surrounding circumstances and neither party were
under any compulsion to buy or sell.
The State has the burden of proving the
fair market value of the property involved.
This means the State must prove beyond a reasonable doubt that the
property is worth what the State claims it to be.
Amounts involved in transactions
conducted pursuant to one scheme or course of conduct may be aggregated in
determining the amount involved.[22]
[1] Charge
the definition of an enterprise, if appropriate: an enterprise includes any
individual, sole proprietorship, partnership, corporation, business trust,
association, or other legal entity, and any union or group of individuals
associated in fact, although not a legal entity, and it includes illicit as
well as licit enterprises and governmental as well as other entities. N.J.S.A. 2C:20-1q.
[2] N.J.S.A. 2C:21-24.
[3] N.J.S.A. 2C:20-1g.
[4] N.J.S.A. 2C:21-24.
[5] N.J.S.A. 2C:21-24.
[6] N.J.S.A. 2C:21-25d.
See also State v. Harris, 373 N.J. Super. 253, 264, 265
(App. Div. 2004), certif. denied, 183 N.J. 257 (2005).
[7] State v. Harris, 373 N.J. Super. at 269.
[8] An independent predicate offense is not necessary to the
prosecution of this statute. State v.
Harris, 373 N.J. Super. at 267.
[9] N.J.S.A. 2C:21-25d.
See also State v. Harris, 373 N.J. Super. 253, 264, 265
(App. Div. 2004), certif. denied, 183 N.J. 257 (2005).
[10] N.J.S.A. 2C:21-26.
[11] Presumably,
the model charge entitled “Circumstantial Evidence,” concerning direct and
circumstantial evidence, should already have been charged.
[12] Webster’s New World College Dictionary, Fourth
Edition (2005).
[13] Webster’s New World College Dictionary, Fourth
Edition (2005).
[14] N.J.S.A. 2C:21-25d.
[15] N.J.S.A. 2C:21-25d.
[16] N.J.S.A. 2C:21-25d.
[17] If
the Defendant asserts a defense, describe the circumstances of the defense to
the jury at this time.
[18] N.J.S.A. 2C:21-27a.
The jury should mark its selection on the verdict sheet. It is unclear how the State is to proceed in
the situation where the State is seeking to impose an anti-money laundering
profiteering penalty pursuant to N.J.S.A. 2C:21-27.2b & c; i.e.,
whether the jury has to determine the value of property involved in order for
the State to seek a penalty equal to three times that value given the factors
to be considered pursuant to N.J.S.A. 2C:21-27.2c. For the penalty pursuant to N.J.S.A.
2C:21-27.2a, the jury will have decided the degree of the crime by its verdict
with regard to categories listed above.
[19] N.J.S.A. 2C:20-1g.
[20] N.J.S.A. 2C:21-24.
[21] N.J.S.A. 2C:1-14m.
[22] N.J.S.A. 2C:21-27a.
