Applying AML to Bitcoin and other�Virtual and Crypto- Currencies

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What Are Bitcoin and� Other Virtual Currencies?

• What is Virtual Currency?
• “a digital representation of value that can be digitally traded and functions as (1) a medium of exchange; and/or (2) a unit of account; and/or (3) a store of value, but does not have legal tender status (i.e., when tendered to a creditor, is a valid and legal offer of payment)” -- Financial Action Task Force
• “(p) Virtual Currency means any type of digital unit that is used as a medium of exchange or a form of digitally stored value. Virtual Currency shall be broadly construed to include digital units of exchange that (i) have a centralized repository or administrator; (ii) are decentralized and have no centralized repository or administrator; or (iii) may be created or obtained by computing or manufacturing effort. Virtual Currency shall not be construed to include any of the following…”

-- NY Department of Financial Services Rules and Regulations

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Types of Virtual Currencies

• Convertible and non-convertible VCs
• Does it have equivalent value in real currency and can it be exchanged back-and-forth for real currency?
• Centralized and decentralized VCs
• Is there a central administrator with monitoring and oversight? Broadly, decentralized virtual currencies are also called crypto-currencies because their ownership chain is protected through cryptography

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Benefits of Virtual Currencies

• Provides banking services to the unbanked
• 50% of the world’s population and three quarters of the world’s poor do not have bank accounts
• Provides an alternative to black markets in hard currencies
• Particular advantages in countries subject to strict capital controls, hyper inflation, economic sanctions or lack adequate banking
• Virtual currencies can offer safe, low cost cross-border remittances by cutting out numerous middlemen – “disintermediation”
• Where the global average cost for sending remittances was 8.9% [to send $200],
• Facilitates micro-payments
• Facilitates censor-resistant transactions
• E.g, donations to organizations like Wikileaks that might blocked by on-line payment hubs like PayPal
• No chargebacks
• Merchants know that completed transactions cannot be reversed

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Dangers of Virtual Currencies

• Anonymity and privacy provide platform for illicit transactions
• Inability to chargeback may frustrate consumer safety
• Many fringe companies involved that can lose your investment (e.g., Mt. Gox)
• Large fluctuations in value, at least for now (present value approx. $270)

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Does AML Apply to Virtual Currencies?

• Bank Secrecy Act
• Treasury, through FinCEN (Financial Crimes Enforcement Network) issued Guidance March 18, 2013, extending its rules regarding Money Services Businesses under Bank Secrecy Act to virtual currencies– and, therefore, its web of regulations and reporting requirements
• On May 5, 2015, FinCEN announced its first enforcement action against a virtual currency exchanger to settle alleged violations of the Bank Secrecy Act (“BSA”)
• OFAC
• VC administrators and exchangers must comply with OFAC (Office of Foreign Assets Control) prohibitions on transacting with Specially Designated Nationals or Blocked Persons (SDNs)
• CFTC
• Virtual currencies are a commodity covered by the Commodity Exchange Act
• State Regulation
• E.g., NYS Dept. of Financial Services, T.23, CH.1, Part 200 (Virtual Currencies) – requiring BitLicenses for VC those enegaged in “Virtual Currency Business Activity”

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Major Money Laundering Prosecutions of Virtual Currency Exchangers

• U.S. v. e-Gold, Ltd, 550 F.Supp.2d 82 (D.D.C. 2008) (Collyer) (e-Gold)
• U.S. v. Ulbricht (Dread Pirate Roberts), 31 F.Supp.2d 540 (SDNY 2014) (Forrest) (Bitcoin)
• U.S. v. Faiella, 39 F.Supp.3d 544 (SDNY 2014) (Rafoff) (Bitcoin)
• U.S. v. Bodovsky (Liberty Reserve), 2015 WL 5602853 (SDNY Sept. 23, 2015) (Cote)(LR)

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Principal Issues in Criminal Cases

• Bitcoin exchanges are “financial transactions” under 18 U.S.C. § 1956
• United States v. Ross William Ulbricht, No. 14-CR-68 KBF, 2014 WL 3362059, at *22-24 (S.D.N.Y. July 9, 2014) (Forrest)
• Persons operating a Bitcoin market are “money transmitters” under 18 U.S.C. § 1960
• United States v. Faiella, 39 F.Supp.3d 544 (S.D.N.Y. Aug. 19, 2014) (Rafkoff)

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U.S. v. E-Gold, 550 F.Supp.2d 82 (D.D.C. 2008)

• E-Gold -- one of the first virtual currencies
• Founded in 1996 by oncologist Douglas Jackson and attorney Barry Downey
• E-Gold was backed by gold bullion but was traded digitally
• Because it supported anonymous trading E-Gold became a haven for illicit sales and also for phishing and other frauds
• E-Gold, Jackson and Downey indicted in 2005 for money laundering and conspiracy to operate unlicensed money transmitting business
• Motion to dismiss denied:
• “Money transmitting business” in 18 U.S.C. § 1960 not limited to businesses handling cash
• Adopting Treasury Department's expansion of the definition of a money transmitter to include any system by which stored value of any kind may be transferred from one person to another, even if the stored value is neither cash, nor national currency

Jackson and Downey pleaded guilty. Neither received prison time

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United States v. Ross William Ulbricht,� 31 F.Supp.2d 540 (SDNY July 9, 2014) (Forrest)

• Ross William Ulbricht, aka Dred Pirate Roberts indicted for drug conspiracy, CCE, money laundering, etc. for operating dark website Silk Road
• He allowed payment only by Bitcoin
• Ulbricht moved to dismiss money laundering conspiracy arguing that transactions in Bitcoin are not “financial transactions” as defined in 18 U.S.C. § 1956(c)(4):

(4) the term “financial transaction” means (A) a transaction which in any way or degree affects interstate or foreign commerce (i) involving the movement of funds by wire or other means or (ii) involving one or more monetary instruments…

• Court holds
• “Put simply,. Bitcoins can be either used directly to pay for certain things or can act as a“funds” can be used to pay for things in the colloquial sense medium of exchange and be converted into a currency which can pay for things…Sellers using Silk Road are not alleged to have given their narcotics and malicious software away for free—they are alleged to have sold them…The money laundering statute is broad enough to encompass use of Bitcoins in financial transactions. Any other reading would—in light of Bitcoins' sole raison d'etre—be nonsensical”

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United States v. Faiella, 39 F.Supp.2d 544�(SDNY August 19, 2014) (Rakoff)

• Robert Faiella, aka “BTCKing,” charged, inter alia, with operating an unlicensed money transmitting business – i.e. a Bitcoin exchange service on Silk Road – in violation of 18 U.S.C. § 1960
• Failla fulfilled orders for Bitcoin then sold the Bitcoin to his Silk Road customers at a markup
• His three arguments, with respect to § 1960 charge and court’s responses:
• 1. Bitcoin does not qualify as “money” under § 1960
• “Bitcoin clearly qualifies as ‘money’ or ‘funds’ under [accepted] definitions. Bitcoin can be easily purchased in exchange for ordinary currency, acts as a denominator of value, and is used to conduct financial transactions”

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United States v. Faiella, 39 F.Supp.2d 544�(SDNY August 19, 2014) (Rakoff)

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• 2. Operating a Bitcoin exchange does not constitute “transmitting” money under § 1960 because while Section 1960 requires that the defendant sell money transmitting services to others for a profit, Faiella merely sold Bitcoin as a product in and of itself.
• “the Government alleges that Faiella received cash deposits from his customers and then, after exchanging them for Bitcoins, transferred those funds to the customers' accounts on Silk Road. These were, in essence, transfers to a third-party agent, Silk Road…”

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• 3. Defendant is not a “money transmitter” under § 1960
• “Faiella clearly qualifies as a ‘money transmitter’ for purposes of Section 1960. The Financial Crimes Enforcement Network (“FinCEN”) has issued guidance specifically clarifying that virtual currency exchangers constitute ‘money transmitters’ under its regulations. See FinCEN Guidance at 1”

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United States Budovsky (Liberty Reserve), 2015 WL 5602853 (SDNY Sept. 23, 2015) (Cote)

• Liberty Reserve – Costa Rican based anonymous payment processor, “bank of choice for the criminal underworld”
• Eventually shut down and Budovsky charged with money laundering conspiracy and operating unlicensed money transmitting business
• Budovskly extradicted from Spain October 2014
• Defendant’s attacks on § 1956 and § 1960 charges rejected for reasons similar to those stated in Ulbricht and Faiella

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Crypto-Currency Market Caps (as of October 21, 2015)�source: http://coinmarketcap.com

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Dark Sites Continue to Proliferate

• According to the darknetmarkets.org, as of October 17, 2015, there were 58 live Dark Net Marketplaces, including:

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Prosecuting Defense Counsel for Money Laundering Offenses

Examples of ML Prosecutions v. Lawyers

• Most money laundering prosecutions against attorneys generally are unrelated to receipt of legal fees or at least the receipt of legal fees are secondary to the prosecution Examples:
• U.S. v. Robert David Boedigheimer – 60 months
• U.S. v. Gary Prolman – 24 months
• U.S. v. Ralph Crozier – 30 months
• U.S. v. Juan Carlos Elso – 10 years
• U.S. v. Jose Guillermo Haro – 12 years

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Statutory Exemption to § 1957

• Money laundering statutes initially did not grant exemptions when enacted in 1986
• Concern soon expressed that statute would infringe on 6^th Amendment right to counsel
• Concerns addressed by 1988 amendment to definition of “monetary transaction” in § 1957:

(f) As used in this section—

(1) the term “monetary transaction” means the deposit, withdrawal, transfer, or exchange, in or affecting interstate or foreign commerce, of funds or a monetary instrument (as defined in section 1956(c)(5) of this title) by, through, or to a financial institution (as defined in section 1956 of this title), including any transaction that would be a financial transaction under section 1956(c)(4)(B) of this title, but such term does not include any transaction necessary to preserve a person's right to representation as guaranteed by the sixth amendment to the Constitution;

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Exemption is Limited…

• Amendment applies only to § 1957, not § 1956
• Not a defense to tainted money received for civil representation
• Arguably does not apply to payments from third parties on defendant’s behalf
• Government can still forfeit money received for bona fide representation in criminal case

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Justice Department Position: DOJ Manual § 9-105.600

“DOJ will not prosecute attorneys under § 1957 based upon the receipt of property constituting bona fide fees for the legitimate representation in a criminal matter, except if (1) there is proof beyond a reasonable doubt that the attorney had actual knowledge of the illegal origin of the specific property received (prosecution is not permitted if the only proof of knowledge is evidence of willful blindness); and (2) such evidence does not consist of (a) confidential communications made by the client preliminary to and with regard to undertaking representation in the criminal matter; or (b) confidential communications made during the course of representation in the criminal matter; or (c) other information obtained by the attorney during the course of the representation and in furtherance of the obligation to effectively represent the client”

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Kuehne Prosecution, United States v. Velez, 586 F.3d 875 (11^th Cir. 2009)

• Florida attorney Ben Kuehne prosecuted for ML under §§ 1956 and 1957 after vetting $5+ million in legal fees paid to defense team of Roy Black and others by accused Colombian drug kingpin Fabio Ochoa
• Government: Kuehne supported his conclusion that the funds were untainted with false documents and statements, knowing that the funds were criminally derived and intending to conceal their true source
• District court dismissed § 1957 count citing § 1957(f)(1). Government appealed
• Government argued on appeal: § 1957(f)(1) was effectively nullified by Caplin & Drysdale, Chartered v. United States, 491 U.S. 617 (1989) (Sixth Amendment right to counsel does not protect the right of a criminal defendant to use criminally derived proceeds for legal fees)

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Kuehne Prosecution, United States v. Velez, 586 F.3d 875 (11^th Cir. 2009)

• Eleventh Circuit affirmed, United States v. Velez, 586 F.3d 875, 877 (11th Cir.2009)
• Drysdale relates only to statute authorizing civil forfeiture of criminally derived proceeds and has no bearing on 1957(f)(1)
• The plain meaning of the exemption set forth in ¶ 1957(f)(1), when considered in its context, is that transactions involving criminally derived proceeds are exempt from the prohibitions of § 1957 when they are for the purpose of securing legal representation to which an accused is entitled under the Sixth Amendment
• Court cited Solicitor General’s brief in Monsanto, contrasting the lack of an exemption in the forfeiture provision, 21 U.S.C. § 853, and the insertion of such an exemption into § 1957
• On remand, government dropped all charges against Kuehne

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United States v. Blair, 661 F.3d 755, 771 (4th Cir. 2011)

• Attorney Walter L. Blair given drug money by a third party who had secreted cash for a murdered marijuana dealer
• Attorney used part of the money to hire lawyers for some of the dealer’s indicted associates and stole portion for himself
• Attorney, indicted, invoked 1957(f) as a defense, arguing money was for bona fide legal fees.
• Fourth Circuit rejected the argument:
• The Supreme Court says “A defendant has no Sixth Amendment right to spend another person's money for services rendered by an attorney....” Caplin & Drysdale, 491 U.S. at 626, 109 S.Ct. 2646.
• Blair was not acting in a representative capacity and “the fact that Blair himself happens to be a lawyer is pure coincidence. If he were simply the head of a drug organization who decided to bankroll lawyers for others with criminally derived funds, which themselves were taken from others, the violation of § 1957 would seem apparent” 
• Dissent by Chief Judge Traxler:
• Blair's conduct was unquestionably reprehensible, and it was particularly offensive to members of the legal profession. The actual text of the statute, however, constrains me to conclude that the two transactions in question—which secured competent, legitimate criminal defense attorneys for Saunders and Bernard—are exempt from prosecution under § 1957(f)(1)

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Red Flags

• Red flags for payments received by criminal defense lawyers on behalf of individual clients:
• Client pays in cash
• Payment received from third party corporation doing largely cash business, i.e. possible vehicle for laundering ill-gotten gains
• Client offers payment from unknown/unvetted third parties
• Client has previous conviction(s)
• Strong evidence client’s only wealth is criminally-derived
• Client seeks to “park” additional money in attorney escrow account to pay non-legal expenses

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P.S. to Kuehne Prosecution: Prosecutor Robert Feitel Receives Tainted Funds from “Money Launderers”:� “How was I supposed to know???”

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August 25, 2015

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