US v. Amanuel Asefaw

Filing

UNPUBLISHED AUTHORED OPINION filed. Originating case number: 8:09-cv-01513-RWT Copies to all parties and the district court/agency. [999157553].. [12-1633]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 12-1633

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
$134,750 U.S. Currency,
Defendant – Appellant,
AMANUEL ASEFAW,
Claimant - Appellant.

Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Roger W. Titus, District Judge. (8:09cv-01513-RWT)

Submitted:

May 15, 2013

Decided:

July 24, 2013

Before NIEMEYER, GREGORY and SHEDD, Circuit Judges.

Affirmed by unpublished opinion.
Judge Gregory wrote
opinion, in which Judge Niemeyer and Judge Shedd joined.

the

S. Ricardo Narvaiz, LAW OFFICES OF S. RICARDO NARVAIZ, Silver
Spring, Maryland, for Appellants.
Rod J. Rosenstein, United
States Attorney, Baltimore, Maryland; Christen A. Sproule,
Assistant United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Greenbelt, Maryland, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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GREGORY, Circuit Judge:
In

this

civil

in

rem

action,

claimant

Amanuel

Asefaw

appeals the district court’s order of forfeiture, entered after
a jury trial, of the defendant funds, $134,750 in United States
currency.

The jury found that the funds were involved in or

traceable to financial transactions structured for the purpose
of evading a financial institution’s reporting requirements, in
violation of 31 U.S.C. § 5324 (2006).

Asefaw argues that there

was insufficient evidence to support the jury’s verdict; that
the

district

court

committed

error

in

various

evidentiary

rulings; and that the forfeiture is unconstitutionally excessive
under the Eighth Amendment.

Finding no reversible error, we

affirm.
I.
Under the Currency and Foreign Transactions Reporting Act
of 1970 (“Bank Secrecy Act”), and regulations promulgated by the
Financial

Crimes

Enforcement

Network,

Department

of

the

Treasury, financial institutions are required to file reports
whenever they are involved in cash transactions of more than
$10,000.

31 U.S.C. § 5313(a); 31 C.F.R. § 1010.311 (2012). 1

A

report also must be filed for multiple transactions in a single
1

During the relevant time period,
located at 31 C.F.R. § 103.22(b)(1) (2007).

2

this

provision

was

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business day that total more than $10,000, as long as the bank
has knowledge that the transactions are by or on behalf of the
31 C.F.R. § 1010.313(b). 2

same person.

It is a violation of

federal law for any person “to structure . . . any transaction
with

one

purpose

or
of

more
evading

§ 5324(a)(3).

domestic
the

financial

reporting

institutions”

requirements.

for

31

the

U.S.C.

Any property involved in or traceable to illegal

structuring is subject to criminal and civil forfeiture to the
United States.

Id. § 5317(c).

On March 28, 2008, the United States seized, pursuant to a
seizure

warrant,

$114,750

from

an

account

Asefaw

held

with

Citibank and $20,000 from an account he held with Chevy Chase
Bank.

The government later filed a verified complaint alleging

that the defendant funds were traceable to structuring to avoid
currency

reporting

requirements

in

violation

of

31

U.S.C.

§ 5324(a)(3), and seeking civil forfeiture under § 5317(c) and
18 U.S.C. § 981.
At

trial,

Asefaw filed a claim to the defendant funds.
the

government’s

evidence

showed

that

between

March 28 and April 4, 2007, in six business days, Asefaw made
eighteen separate cash deposits totaling $142,950, visiting at
least six different bank branches at three different banks and

2

This provision
§ 103.22(c)(2)(2007).

was

previously

3

located

at

31

C.F.R.

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depositing large sums of cash, none exceeding $10,000, into at
least seven different bank accounts.
exactly $10,000.

He made ten deposits of

On multiple occasions, he made consecutive

deposits within a short window of time.

For example, on April

3, he visited three different banks and made three separate cash
deposits

($10,000,

minutes.

Asefaw

$6,000,
later

and

used

$10,000)
a

in
of

series

less

than

checks

thirty

and

wire

transfers to move the deposited funds into two accounts with
Citibank and Chevy Chase Bank.
IRS

Special

Agent

Mary

Ann

The government’s expert witness,
Veloso,

testified

that,

in

her

opinion, this pattern of splitting large amounts of cash into
multiple

deposits

of

$10,000

or

less

on

the

same

day

or

consecutive days is consistent with a pattern of structuring to
avoid reporting requirements.
In

addition,

the

government

called

Jessica

Cuevas,

a

Citibank employee, who testified that in August 2007 she called
Asefaw and spoke to him about his currency transactions with
Citibank.

Cuevas wrote an email after the conversation, stating

that Asefaw had admitted to depositing only $10,000 to avoid the
need for a currency transaction report (CTR).

The email read:

I spoke with Mr. Asefaw today. The funds he deposited
were from himself since he’s self-employed.
He did
mention he knew about the CTR and that’s why he only
deposited $10,000.
I explained the importance of
structuring deposits and filling out a CTR.
He was
very wary of the phone call and questioned the
reasoning. He was also adamant about the fact that he
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is a “self-employed hard worker” and is not “doing
anything illegal”. [sic] He even made a reference to
closing his accounts with us and moving his money
somewhere else because of the phone call.
The government also offered evidence that, in 2005, Asefaw
owned a grocery store that he registered with the IRS as a money
services business, a specialized type of business that conducts
regulated

financial

Secrecy Act.

transactions

and

is

subject

to

the

Bank

During the same time period, he held an account at

Manufacturers

and

Trade

Trust

Company

(“M&T

Bank”).

The

government offered evidence that between August and September
2005, at least four CTR’s were filed by M&T Bank for currency
withdrawals made by Asefaw.

The government argued that Asefaw

was present when the reports were completed because he had to
provide his driver’s license.
At the

close

of

the

government’s

case,

Asefaw,

who

was

representing himself, moved the court for judgment as a matter
of law.

The court denied the motion.

Asefaw then took the

stand and testified that he “had no idea about this law” and
that he never intended to make the banks fail in their reporting
duties.
take

He testified that he had opened multiple accounts to

advantage

of

favorable

interest

rates

and

promotions.

During the time when he was making deposits and moving money
around,

he

testified

that

he

“thought

5

it

was

a

legitimate

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personal interest because nobody said anything to [him]” or told
him he was breaking a law.
Following three days of trial, the jury returned a verdict
for the government, finding by a preponderance of the evidence
that the funds seized from Asefaw’s accounts were involved in or
traceable to transactions structured for the purpose of evading
a financial institution’s reporting requirements.
no post-trial motions.

Asefaw made

The district court then entered a final

order of forfeiture against the seized funds.
Asefaw

timely

appealed.

We

have

jurisdiction

under

28

U.S.C. § 1291.
II.
Asefaw first argues that the government failed to prove by
a

preponderance

of

the

evidence

that

he

was

aware

of

the

reporting requirements and intentionally structured his deposits
to

evade

them.

However,

Asefaw

never

filed

a

post-verdict

motion renewing his motion for judgment as a matter of law under
Federal Rule of Civil Procedure 50(b).

As a result, we are

foreclosed from considering his challenge to the sufficiency of
the evidence.
Inc.,

546

U.S.

See Unitherm Food Sys., Inc. v. Swift-Eckrich,
394,

400-01

(2006);

Helping

Hand,

LLC

Baltimore Cnty., MD, 515 F.3d 356, 369-70 (4th Cir. 2008).

6

v.

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III.
We next address Asefaw’s contention that the district court
erred in allowing the government to present certain evidence.
We review the district court’s evidentiary rulings for abuse of
discretion, Schultz v. Capital Int’l Sec., Inc., 466 F.3d 298,
310 (4th Cir. 2006), keeping in mind that evidentiary errors
which are harmless cannot be grounds for granting a new trial or
setting aside a verdict, 28 U.S.C. § 2111; Fed. R. Civ. P. 61;
Taylor v. Virginia Union Univ., 193 F.3d 219, 235 (4th Cir.
1999) (en banc) (abrogated on other grounds by Desert Palace,
Inc. v. Costa, 539 U.S. 90, 98-99 (2003)).

An error is harmless

if we can say “with fair assurance, after pondering all that
happened without stripping the erroneous action from the whole,
that the judgment was not substantially swayed by the error.”
Kotteakos v. United States, 328 U.S. 750, 765 (1946); see also
Taylor, 193 F.3d at 235 (adopting the Kotteakos harmless error
standard in civil cases).
A.
Asefaw first argues that the evidence of prior CTR’s from
M&T

Bank

and

his

registration

of

a

money

services

business

should have been excluded under Federal Rule of Evidence 403.
Because Asefaw

did

not

error review applies.

raise

this

objection

at

trial,

plain

See In re Celotex Corp., 124 F.3d 619,

631 (4th Cir. 1997) (adopting in civil cases the plain error
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standard articulated in United States v. Olano, 507 U.S. 725,
732

(1993)).

Under

that

standard,

we

may

exercise

our

discretion to correct an error not raised below only if: (1)
there is an error; (2) the error is plain; (3) the error affects
substantial rights; and (4) we determine, after examining the
particulars of the case, that the error seriously affects the
fairness,

integrity

proceedings.
Rule
relevant

or

public

reputation

of

judicial

Id. at 630-31 (citing Olano, 507 U.S. at 732).

403

provides

evidence

if

that
its

the

district

probative

court

value

is

“may

exclude

substantially

outweighed by a danger of . . . unfair prejudice, . . . [or]
misleading the jury.”

Asefaw argues that the evidence of prior

CTR’s was unfairly prejudicial and misleading because all the
evidence showed was that at some point he presented a driver’s
license during the cash transactions, not that he was actually
present when the CTR’s were completed.

Similarly, he argues

that the evidence of his money services business was prejudicial
and misleading because the government failed to prove that every
person who registers a money services business knows about the
reporting requirements.
At

most,

however,

these

arguments

suggest

that

the

probative value of this evidence was not strong, not that it was
plainly prejudicial or misleading.

But even evidence that has

minimal probative value may be admitted under Rule 403 so long
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as it is relevant and there is no danger of unfair prejudice or
confusion.

That is the case here.

The evidence that Asefaw

previously owned a money services business and had been involved
in transactions that required a CTR tended to prove that he had
prior exposure to currency transaction reporting requirements.
Asefaw had the opportunity to rebut the evidence and point out
its limitations at trial, and there was nothing prejudicial or
misleading

about

it.

Thus,

the

district

court

committed

no

abused

its

error by admitting it.
B.
Asefaw

next

argues

that

the

district

court

discretion by allowing the testimony of Agent Veloso, Cuevas,
and two other bank employees, Paul Schallmo and Courtney Smiley,
because

the

identities

to

government

failed

him

to

prior

to

trial.

timely
He

disclose

contends

their

that

their

testimony should have been excluded under Federal Rule of Civil
Procedure 37(c)(1).
Under

Rule

37(c)(1),

a

party

who

fails

to

provide

information or identify a witness as required by Rule 26(a) is
not

allowed

evidence

at

to

use

trial

that

information

unless

justified or is harmless.”
26(a) are relevant here.

the

or

failure

witness
“was

to

supply

substantially

Two disclosure requirements in Rule
First, “[a]bsent a stipulation or a

court order,” each party must disclose to the other party the
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identity of any witness the party may use to present expert
testimony at least ninety days before trial.
26(a)(2).

Fed. R. Civ. P.

Second, unless the court orders otherwise, at least

thirty days before trial, each party must provide to the other
party and file a pretrial disclosure listing the name of each
witness that will testify.

Fed. R. Civ. P. 26(a)(3).

Asefaw first contends that Agent Veloso’s testimony should
have been excluded because the government did not disclose her
identity

to

him

until

forty-eight

days

before

trial.

The

parties dispute whether Asefaw raised this objection at trial,
and thus whether plain error review should apply.
reach

that

issue,

however,

because

we

We need not

conclude

that

the

government’s disclosure was timely under the district court’s
scheduling order.
expert

designations

disclosed
witness

The

its
on

intent

February

scheduling order set the deadline for

as

February

27,

to

designate

Agent

22,

2012.

2012.

The

Veloso

Because

the

government

as

an

expert

government’s

disclosure was timely under the court’s order, it also satisfied
Rule 26(a)(2).

As a result, the district court did not err when

it allowed Agent Veloso to testify.
Asefaw

next

argues

that

the

district

court

should

have

excluded the testimony of Cuevas, Schallmo, and Smiley because
the government failed to disclose them as witnesses until the

10

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trial began. 3

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The government does not dispute that it failed to

disclose its witnesses to Asefaw before trial as required by
Rule 26(a)(2), but instead argues that the district court did
not abuse its discretion by allowing the undisclosed witnesses
to

testify

because

the

omission

was

harmless

under

Rule

37(c)(1).
The
whether

district
a

court

disclosure

has

“broad

violation

is

harmless under Rule 37(c)(1).

discretion”
substantially

to

determine

justified

or

S. States Rack & Fixture, Inc. v.

Sherwin-Williams Co., 318 F.3d 592, 597 (4th Cir. 2003).

We

have said that this discretion should be guided by an analysis
of five factors: (1) the surprise to the party against whom the
evidence would be offered; (2) the ability of that party to cure
the

surprise;

(3)

the

extent

to

which

allowing

the

evidence

would disrupt the trial; (4) the importance of the evidence; and
(5) the nondisclosing party’s explanation for its failure to
disclose the evidence.
The

district

Id.

court

overruled

Asefaw’s

objection

without

discussing the Southern States factors, reasoning that Asefaw
was not entitled to relief because he had never submitted an

3

In his opening brief, Asefaw also contends that the
government failed to disclose the identity of another bank
employee witness, Martha Wallis.
However, at trial, Asefaw
admitted that he knew before trial that she would testify.

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interrogatory asking the government to identify “persons having
knowledge of facts pertinent to the case.”
reasoning.
file

and

We disavow this

Rule 26(a)(3) imposes an affirmative obligation to
disclose

to

the

other

party,

at

least

thirty

days

before trial unless the court orders otherwise, the names of the
witnesses who will be presented.

That obligation exists whether

or not the other party has requested a witness list.
government’s
26(a)(3).

failure
Rather

to

than

disclose

its

overruling

witnesses

Asefaw’s

Thus, the

violated

objection

Rule

to

the

undisclosed witnesses outright, the district court should have
proceeded

to

analyze

whether

the

government’s

omission

substantially justified or harmless under Rule 37(c)(1).
not reach that question ourselves.

was

We do

Instead, assuming arguendo

that the testimony from undisclosed witnesses should have been
excluded, we conclude that any error committed by the district
court

in

allowing

them

to

testify

did

not

affect

Asefaw’s

substantial rights.
First, the testimony of Smiley and Schallmo was largely
cumulative

and

therefore

government’s case.

added

little

to

nothing

to

the

Neither witness had any personal knowledge

of Asefaw’s transactions, and their testimony was limited to
introducing and authenticating bank records that documented some
of them.

These same transactions were also described by Agent

Veloso in her testimony, and Asefaw did not dispute any of them.
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Thus, there is no reason to believe that the jury’s verdict
would have been any different if the testimony of Smiley and
Schallmo had been excluded.
Of course, the evidence presented by Cuevas was not merely
cumulative; her email provided the only direct evidence that
Asefaw

admitted

intent

to

evade

the

reporting

requirements.

Nevertheless, the powerful nature of the circumstantial evidence
in this case demonstrates that any error in allowing Cuevas to
testify was harmless.

Over six business days, Asefaw deposited

more than $100,000 in at least eighteen separate cash deposits,
repeatedly taking large sums of cash and splitting them up into
sums of $10,000 or less, often within a short period of time.
He made ten deposits of exactly $10,000, and not once did his
deposits exceed the $10,000 threshold that triggers reporting
requirements.

Asefaw never explained why, if he was unaware of

the reporting requirements, he structured his deposits in this
way.

This gaping hole in his testimony reinforced the already

powerful

nature

of

the

requiring

the

reporting

requirements.

circumstantial

conclusion

that

his

Cuevas’s

evidence,

purpose

was

testimony,

in

practically

to

evade

the

essence,

was

icing on the cake.
In sum, even excluding the testimony of Cuevas, Schallmo,
and

Smiley,

finding

by

there
a

was

ample

preponderance

evidence
of
13

the

to

support

evidence

the
that

jury’s
Asefaw

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intentionally

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structured

requirements.
allowing

his

Pg: 14 of 22

deposits

to

evade

the

reporting

As a result, we can fairly say that any error in

the

undisclosed

witnesses’

testimony

did

not

“substantially sway” the jury’s verdict, and thus, that any Rule
37(c)(1) error committed by the district court was harmless.
IV.
We turn now to Asefaw’s last argument, that the forfeiture
of the seized funds is unconstitutionally excessive under the
Eighth Amendment.

Because Asefaw failed to raise this objection

at any point during the proceedings below, we may only disturb
the judgment below if the requirements of plain error review are
satisfied.
party

See Olano, 507 U.S. at 732.

challenging

the

The burden is on the

constitutionality

demonstrate excessiveness.

of

the

forfeiture

to

United States v. Ahmad, 213 F.3d

805, 816 (4th Cir. 2000).
The Eighth Amendment provides that “[e]xcessive bail shall
not

be

cruel

and

unusual punishments inflicted.”

U.S. Const. amend. VIII.

A

punitive

violates

Clause

required,

nor

forfeiture
of

the

excessive

of

property

Eighth

fines

Amendment

imposed,

if

the

nor

Excessive

it

disproportional” to the gravity of the offense.

is

Fines

“grossly

United States

v. Bajakajian, 524 U.S. 321, 334 (1998); see also United States
v.

Ahmad,

213

F.3d

at

815

(recognizing

14

that

“Bajakajian’s

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‘grossly

disproportional’

whether

any

Pg: 15 of 22

analysis

punitive

applies

forfeiture--civil

when
or

determining
criminal--is

excessive”).
In Bajakajian, the Supreme Court considered the following
factors

to

determine

whether

unconstitutionally excessive:

the

forfeiture

was

the nature and extent of illegal

activity and whether the defendant fit into the class of persons
for

whom

the

statute

was

principally

designed;

the

maximum

penalties that a court could have imposed for the offense; and
the harm caused by the offense.

524 U.S. at 337–39.

There, an

international traveler was convicted of failing to report that
he was transporting more than $10,000 out of the United States
in violation of 31 U.S.C. § 5316(a)(1)(A).

Id. at 325.

Court

full

concluded

that

the

forfeiture

of

the

$357,144

The
he

attempted to transport would violate the Excessive Fines Clause.
Id. at 338.
single

Noting that the defendant’s only offense was a

reporting

violation,

the

Court

reasoned

that

the

defendant did not fit within the class of persons, such as money
launderers,

drug

traffickers,

or

statute was principally designed.
the

maximum

sentence

that

could

tax

evaders,

Id. at 337-38.
have

been

for

whom

the

In addition,

imposed

under

the

United States Sentencing Guidelines was six months, while the
maximum fine was $5,000.

Id. at 338.

These penalties confirmed

“a minimal level of culpability,” ill-suited for the punitive
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forfeiture of more than three-hundred thousand dollars.
338-39.

Id. at

Finally, the Court concluded that the harm caused by

the reporting violation was minimal because the government was
the only harmed party and the offense affected the government in
“a

relatively

information.
violation

minor

way”

Id. at 39.

with

the

by

depriving

the

government

of

Thus, comparing the single reporting

forfeiture

of

$357,144

sought

by

the

government, the Court concluded that the forfeiture would be
grossly disproportional to the gravity of the offense.

Id. at

339.
In the years since Bajakajian was decided, we have applied
the same factors when evaluating whether a challenged forfeiture
is unconstitutionally excessive.

In United States v. Ahmad, the

claimant, who operated a money exchange business, was criminally
prosecuted for his involvement in a complex operation involving
transfers of currency to individuals in Pakistan and importation
of surgical equipment from abroad.

213 F.3d at 807.

Over a

series of years, the claimant, in an effort to avoid reporting
requirements,
from

other

§ 5324.
traceable

repeatedly

individuals

Id.
to

structured
for

transfer

deposits

of

abroad,

in

cash

received

violation

of

We concluded that the civil forfeiture of $85,000
his

structuring

offenses

was

disproportional to the gravity of those offenses.

16

not

grossly

213 F.3d at

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Although the maximum authorized penalties mirrored those

in Bajakajian, the claimant’s “conduct . . . was not a single,
isolated untruth affecting only the government, but rather a
series of sophisticated commercial transactions over a period of
years that were related to a customs fraud scheme.”
addition,

the

government
financial

claimant’s

of

structuring

important

“not

institution’s

information,
ability

to

only

but

In

deprived

the

also

comply

jeopardized the funds of other persons.”

Id.

with

affected
the

law

a
and

Id. at 817.

Similarly, in United States v. Jalaram, Inc., we held that
the

criminal

forfeiture

of

$385,390

in

proceeds

from

a

prostitution ring was not grossly disproportional to the gravity
of

the

Although

offense.
the

599

government

F.3d

347,

had

not

351,

356

identified

(4th
any

Cir.

2010).

victims

who

suffered harm from the offense, the criminal activity spanned
several months, generating hundreds of thousands of dollars in
illicit revenues, and was connected with other offenses such as
tax evasion.

Id.

at 356.

Further, the maximum fine for the

offense was $350,000, indicating that Congress considered the
crime at issue “far more serious than the reporting offense in

4

We also held that the forfeiture of an additional
$101,587.43 was not grossly disproportional to the gravity of
the defendant’s customs fraud offenses. United States v. Ahmad,
213 F.3d 805, 819 (4th Cir. 2000).

17

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Bajakajian.”

Id.

Pg: 18 of 22

This legislative judgment, we noted, raises

“a significantly higher hurdle to show[ing] that the requested
forfeiture is grossly disproportional to the gravity of [the]
offense.”

Id.

An application of the Bajakajian factors to this case leads
us to conclude that the forfeiture of the seized funds is not
grossly

disproportional

violations.

the

gravity

of

the

structuring

At the outset, we note that “judgments about the

appropriate
instance

to

punishment

to

the

for

an

offense

legislature.”

belong

Bajakajian,

in

524

the

U.S.

first
at

336

(citations omitted); see also Solem v. Helm, 463 U.S. 277, 290
(1983)

(instructing

reviewing

courts

to

“grant

substantial

deference to the broad authority that legislatures necessarily
possess in determining the types and limits of punishments for
crimes”).

Thus,

“[t]here

is

a

strong

presumption

of

constitutionality where the value of a forfeiture falls within
the

fine

range

prescribed

by

Congress

or

the

Guidelines.”

United States v. Malewicka, 664 F.3d 1099, 1106 (7th Cir. 2011)
(citation omitted).
Congress authorized a maximum criminal fine of $500,000 in
aggravated cases where a structuring offense involves more than
$100,000 in a twelve-month period.

See 18 U.S.C. § 3571(b)(3);

31 U.S.C. § 5324(d)(2); United States v. $79,650.00 Seized from
Bank of Am., 650 F.3d 381, 387 (4th Cir. 2011).
18

In such cases,

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Pg: 19 of 22

the maximum fine limitations of the Guidelines do not apply to
temper this legislative judgment.

See U.S.S.G § 5E1.2(a)(4);

$79,650.00 Seized from Bank of Am., 650 F.3d at 387-88.
Asefaw’s

structuring

activities,

which

involved

Thus,

more

than

$100,000 in less than twelve months, could have subjected him to
a criminal fine of up to $500,000, far in excess of the amount
forfeited.
range

That the forfeiture amount falls within the fine

authorized

by

constitutionality.

Congress
As

a

raises

result,

a

presumption

Asefaw

“must

clear

of
a

significantly higher hurdle to show that the . . . forfeiture is
grossly

disproportional

to

Jalaram, 599 F.3d at 356.

the

gravity

of

[his]

offense.”

He has not done so.

First, Asefaw fails to demonstrate that he falls outside
the

class

of

persons

principally designed.

for

whom

the

structuring

statute

was

Congress enacted the Bank Secrecy Act, in

large part, out of concern that inadequate records maintained by
financial institutions “seriously impair[ed] the ability of the
Federal

Government

regulatory

to

provisions

enforce
of

the

laws

myriad

which

criminal,

Congress

had

tax,

and

enacted.”

California Bankers Ass’n v. Shultz, 416 U.S. 21, 27 (1974).

“By

forcing financial institutions to [file CTRs], Congress hoped to
maximize

the

information

criminal investigators.”

available

to

federal

regulatory

and

United States v. St. Michael’s Credit

Union, 880 F.2d 579, 582 (1st Cir. 1989).
19

“The overall goal of

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the

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statute

obtained

to

was

and

the

interdict

untaxed

institutions.”

monies

laundering

in

of

illegally

legitimate

financial

Id. (citing Schultz, 416 U.S. at 26-30).

Through
interfered

Pg: 20 of 22

his
with

structured
the

deposits,

reporting

Asefaw

obligations

repeatedly

of

financial

institutions in just the way § 5324 was intended to prohibit.
By furtively introducing large amounts of unreported cash into
the financial system, Asefaw frustrated a primary objective of
the Bank Secrecy Act--to ensure the maintenance of bank records
necessary to the investigation and prosecution of criminal, tax,
and regulatory offenses.

Moreover, while Asefaw was not charged

with money laundering or tax evasion, his structuring violations
“could have facilitated such conduct in just the way the statute
was

designed

Indeed,

we

to

do

frustrate.”

not

have

the

Malewicka,
benefit,

as

664

F.3d

the

at

Court

1106.

did

in

Bajakajian, of a finding by the trier of fact that his funds
“were not connected to any other crime.”

524 U.S. at 326.

Thus, it is not apparent that Asefaw falls outside the class of
persons

for

Malewicka,

whom
664

the

F.3d

statute
at

is

1105-06

principally
(finding

that

designed.
defendant

See
not

charged with other wrongdoing nevertheless fit within the class
of

persons

designed

for

because

whom
her

the

structuring

structuring

20

statute

activities

was

principally

frustrated

the

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Pg: 21 of 22

statute’s purpose and “could have facilitated [money laundering
or tax evasion]”).
Second,
Asefaw

as

could

noted

have

above,

faced

the

is

maximum

$500,000,

criminal

far

in

fine

excess

that

of

the

miniscule $5,000 maximum fine authorized in Bajakajian.

This

distinction

this

confirms

that

the

structuring

activities

in

case involve a higher level of culpability than the isolated
reporting violation at issue in Bajakajian.

See Jalaram, 599

F.3d at 356 (concluding that the defendant’s crimes were more
serious

than

in

Bajakajian,

in

part,

based

on

the

disparity

between the maximum fines authorized).
Finally, unlike in Bajakajian, we cannot say that the harm
caused by Asefaw’s illegal structuring was “relatively minor.”
Bajakajian, 524 U.S. at 339.

Asefaw’s conduct not only deprived

the government of information, it also affected the financial
institutions

involved

in

his

transactions,

interfering with their reporting duties.

repeatedly

See Ahmad, 213 F.3d at

817 (finding that the harm caused was not minimal, in part,
because

the

defendant’s

structuring

activities

“implicated

an

intermediary actor, the First Virginia Bank, and affected its
legal duty to report certain transactions”).
repeated

interference

with

the

legal

duties

Given Asefaw’s
of

multiple

financial institutions, the harm caused by his conduct is more
substantial than in Bajakajian.
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In sum, after weighing the nature of Asefaw’s structuring
violations, the maximum fine that could have been imposed, the
harm caused to the financial institutions, and the deference we
owe

to

the

judgment

of

Congress

concerning

the

appropriate

penalty, we conclude that the forfeiture amount is not grossly
disproportional to the gravity of Asefaw’s illegal activity.

We

therefore do not find the forfeiture amount unconstitutionally
excessive.
V.
For the reasons explained above, the judgment is affirmed.

AFFIRMED

22