Heyman appeals from a judgment of conviction of the United States District Court for the Southern District of New York (Whitman Knapp, Judge), for conspiracy and for causing a financial institution to fail to file a currency transaction report, in violation of 31 U.S.C. §§ 5313 and 5322. Affirmed.
Before: KAUFMAN, VAN GRAAFEILAND and MINER, Circuit Judges
We are asked to determine whether a statute proscribing certain conduct by financial institutions was properly applied in prosecuting an employee who caused his brokerage firm to unwittingly violate the statute. We have previously held that one who causes another to commit a crime may be punished as a principal pursuant to federal law, although the substantive criminal statute does not apply to him by its terms. Accordingly, we affirm the conviction.
Alan Heyman, an account executive with Merrill Lynch, Pierce, Fenner & Smith, Inc. ("Merrill Lynch"), shared responsibility for several customer accounts with another account executive, Martin Leyton. One of them, jointly held by Sam Silber and his wife, Evelyn, was opened on July 21, 1981. In February 1982, the Silbers sought to deposit a large amount of cash into their account with Merrill Lynch. Having failed to report the cash as income to the Internal Revenue Service, however, the Silbers also did not wish Merrill Lynch to report the deposit to the IRS.*fn1 Federal law provides that a financial institution must file a Currency Transaction Report ("CTR") with the IRS for all transactions involving amounts over $10,000. 31 U.S.C. § 5313.*fn2
To avoid the filing of a CTR, Heyman and Leyton devised a scheme to circumvent the requirements of §§ 5313 and 5322 of the Bank Secrecy Act, 31 U.S.C. § 5311 et seq. (the "Act"). On February 11, 1982, Leyton opened two new accounts, one in the name of Sam Silber and the other in the name of Evelyn Silber. Less than one week later, Heyman opened an account hearing the name of the Silbers' daughter, Pearl Schmutter. On February 16, Heyman deposited $9,900 into each of these three accounts as well as into the Silbers' joint account. Accordingly, the total cash invested in these four accounts on February 16 was $39,600.
On May 5, 1982, Heyman deposited $9,000 into the joint account of Evelyn and Sam Silber, and $8,000 into Sam Silber's individual account, again avoiding the submission of a CTR with respect to these transactions. A few days later, Heyman transferred the $8,000 from Sam Silber's account to the account Sam held jointly with his wife.
Heyman undertook his most flagrant attempt to sidestep the reporting requirements on July 26, 1982. On that day, he received a briefcase from Sam Silber containing $70,000 in cash and brought it to his office at Merrill Lynch. There Heyman opened the following joint and individual accounts in the names of Silber and his relatives:
Susan Mark/Pearl Schmutter
Sam Silber/Pearl Schmutter