FINANCIAL FACILITATION OF CRIMINAL
ACTIVITY
[MONEY LAUNDERING]
(N.J.S.A. 2C:21-25c) 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 directs, organizes, finances, plans, manages, supervises or controls the
transportation of or transactions in property known or which a reasonable
person would believe to be derived from criminal activity.
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 [choose
appropriate verbs:] directed, organized, financed, planned, managed, supervised
or controlled the transportation of or transactions in property;
2. The defendant knew or a reasonable
person would have believed that the property was derived from criminal
activity;
The first element the State must prove
beyond a reasonable doubt is the defendant knowingly [choose appropriate
verbs:] directed, organized, financed, planned, managed, supervised or
controlled the transportation of or transactions in property.
[If
the defendant is not an individual person, charge the following:]
First, 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 [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.[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 dominion and control over a particular thing. 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 the property [choose appropriate] directed, organized,
financed, planned, managed, supervised or controlled 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]
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.[7]
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.[8]
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.[9]
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.[10] Property includes any benefit or interest
without reduction for expenses incurred for acquisition, maintenance or any
other purpose.[11]
Value means the fair market value of the
property at the time and place of the alleged operative act.[12] 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.[13]
[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] N.J.S.A. 2C:21-26.
[8] Presumably, the model charge entitled “Circumstantial
Evidence,” concerning direct and circumstantial evidence, should have already
been charged.
[9] 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.
[10] N.J.S.A. 2C:20-1g.
[11] N.J.S.A. 2C:21-24.
[12] N.J.S.A. 2C:1-14m.
[13] N.J.S.A. 2C:21-27a.
