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Prosecution of Kurdish Immigrants for Running an Unlicensed Money Transfer Operation:

MaxSpeak (Max Sawicky's blog) now has more details on the story, from Max's coblogger Barkley Rosser. I blogged a few weeks ago about an earlier MaxSpeak posting that struck me as overwrought and maddeningly lacking in details. This post provides more details, and links to a newspaper article that offers still more.

As best I can tell, the claim in this post (which doesn't deal with various supposed abuses involved during the investigation and prosecution of the case, but deals just with the substantive issue) is that (1) the defendants, while legally guilty, are basically decent people who ran afoul of a complex law that sweeps harmless conduct in together with genuinely harmful conduct, and (2) the federal prosecutors, realizing this, should have just dropped the prosecution and let the defendants off with a warning.

This is not an implausible claim -- it's hard to tell how plausible without still more information -- but it's important to put it in perspective (something that seemed to me missing from the original MaxSpeak post): There are lots of laws that punish conduct because of its potential to cause harm, and that are in fact applied to people who engaged in the conduct but did so with good motives, and seemingly without causing actual harm themselves.

Licensing requirements are classic examples. Their whole point is to prohibit doing a certain broad class of things (e.g., transfering money, selling guns, selling liquor, distributing controlled substances, and running various other businesses) without a license, and not just to prohibit doing specific items from that class that are harmful (e.g., transfering money to terrorists, or selling guns to people who you know will use them for criminal purposes). As a (squishy) libertarian, I take the view that many (probably most) of these requirements should probably be repealed. But I'm not sure that this is right as to prophylactic rules that are aimed at preventing the transnational distribution of funds to terrorists (distribution that can happen even if the intermediaries are well-intentioned); at the very least, the argument for decriminalizing this has to be made, rather than just assumed. And in any event, until the laws are repealed, it's unsurprising that prosecutors enforce them even against generally decent people.

I should also note one point about the column that Prof. Rosser links to: When it says "The Patriot Act, enacted a month after 9/11, made a simple transfer of someone's money a felony regardless of knowledge or intent, a radical shift in criminal law," it actually means "a radical shift in the legal regime governing money transfers." A casual reader might assume that the "radical shift in criminal law" claim means that there's something radically new about the notion that unlicensed activity can be made a felony regardless of knowledge or intent that the activity is for some harmful purpose (and regardless of whether the actor knows about the licensing statute). That's not at all so, as I mention above.

Charles Chapman (mail) (www):
The actions are pending in the United States District Court for the Western District of Virginia. I have set forth pertinent reference and contact information below.

I will note that, at least with regard to two of the four defendants, something more than the mere unlicensed transmission of money is alleged. Defendants Ahmed Haji Abdullah and Fadhil Hussain Noroly were charged with theft of U.S. property under 18 USC 641, which provides:
Whoever embezzles, steals, purloins, or knowingly converts to his use or the use of another, or without authority, sells, conveys or disposes of any record, voucher, money, or thing of value of the United States or of any department or agency thereof, or any property made or being made under contract for the United States or any department or agency thereof; or

Whoever receives, conceals, or retains the same with intent to convert it to his use or gain, knowing it to have been embezzled, stolen, purloined or converted—

Shall be fined under this title or imprisoned not more than ten years, or both; but if the value of such property in the aggregate, combining amounts from all the counts for which the defendant is convicted in a single case, does not exceed the sum of $1,000, he shall be fined under this title or imprisoned not more than one year, or both.

The word "value" means face, par, or market value, or cost price, either wholesale or retail, whichever is greater.
According to PACER, the case information is as follows:

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PACER DOCKET in 5:05-cr-00047-gec-1

USA v. Rasheed Qadir Qambari, Case No. 5:05-cr-00047-gec-1.
Charges:
MONETARY LAUNDERING; 18 USC 1969(a)
CRIMINAL FORFEITURE; 18 USC 982

On 1/30/06 the jury returned a verdict of guilty on Count 1 of the Indictment, that Defendant operated an unlicensed money transmitting business.

Sentencing is on May 3, 2006.

Defendant represented by David Irving McCaskey
PO BOX 1134
STAUNTON, VA 24402-1134
540-885-3076
Fax: 540-885-2258
Email: mccaskeylaw@ntelos.net

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PACER DOCKET in 5:05-cr-00043-gec-1

USA v. Ahmed Haji Abdullah, Case No. 5:05-cr-00043-gec-1
Charges:
MONETARY LAUNDERING - 18 USC 1960
PUBLIC MONEY, PROPERTY OR RECORDS - 18 USC 641
CRIMINAL FORFEITURE - 18 USC 982

Guilty Plea Hearing was set for 4/19/06.

Defendant represented by John Lloyd Snook, III
SNOOK &HAUGHEY, P.C.
PO BOX 2486
CHARLOTTESVILLE, VA 22902
434-293-8185
Fax: 434-295-0698
Email: jlsnook@snookandhaughey.com
LEAD ATTORNEY
ATTORNEY TO BE NOTICED
Designation: Retained

Sherwin John Jacobs
SHERWIN J. JACOBS, ATTORNEY AT LAW
510 EAST MARKET STREET
HARRISONBURG, VA 22801
540-564-1138
Fax: 540-574-0162
Email: sjjacobs-attorney-510market@msn.com
TERMINATED: 12/23/2005
LEAD ATTORNEY
ATTORNEY TO BE NOTICED
Designation: CJA Appointment

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PACER DOCKET in 5:05-cr-00048-gec-bwc-1

USA v. Amir Rashid, Case No. 5:05-cr-00048-gec-bwc-1

Charges:
MONETARY LAUNDERING - 18 U.S.C. 1960(a)
CRIMINAL FORFEITURE- 18 U.S.C.982

Plea agreement filed on 3/2/06. U.S. recommendation of no incarceration. Sentencing set for 6/26/06.

Defendant represented by Russell Darren Bostic
BOSTIC &BOSTIC PC
SUITE 314
57 SOUTH MAIN STREET
HARRISONBURG, VA 22801
540-432-1119
Fax: 540-433-0929
Email: dbblaw@netscape.com
LEAD ATTORNEY
ATTORNEY TO BE NOTICED
Designation: CJA Appointment

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PACER DOCKET in 5:05-cr-00049-gec-bwc-1

USA v. Fadhil Hussain Noroly, Case No. 5:05-cr-00049-gec-bwc-1

Charges:
MONETARY LAUNDERING; 18 USC 1960(a)
PUBLIC MONEY, PROPERTY OR RECORDS; 18 USC 641; theft of public money
CRIMINAL FORFEITURE

Case set for trial May 17, 2006.

Defendant represented by Aaron L. Cook
AARON L COOK PC
SUITE B
71 COURT SQUARE
HARRISONBURG, VA 22801
540-564-9699
Fax: 540-564-9689
Email: cook@cookattorneys.com
LEAD ATTORNEY
ATTORNEY TO BE NOTICED

Gregory W. Bowman
203 EAST BOSCAWEN STREET
WINCHESTER, VA 22601
540-662-1320
Fax: 540-662-0317
Email: gbowman@visuallink.com
TERMINATED: 02/23/2006
LEAD ATTORNEY
ATTORNEY TO BE NOTICED
Designation: CJA Appointment
4.14.2006 3:05pm
Charles Chapman (mail) (www):
Defendants Ahmed Haji Abdullah and Fadhil Hussain Noroly were charged with theft of U.S. property under 18 USC 641, which provides:
I want to be more precise, and correct the above. As reflected by the Docket, Defendants Ahmed Haji Abdullah and Fadhil Hussain Noroly were charged violation of U.S. property under 18 USC 641. I see the offense also includes receiving, retaining or concealing such property with the intent to convert same, and knowing that it had "embezzled, stolen, purloined or converted."
4.14.2006 3:14pm
Average Joe (mail):
How does the law regarding illegal money transfer compare with the laws regarding counterfeit currency? I seem to dimly recall that passing counterfeit currency was illegal, "regardless of knowledge or intent", but I could be wrong.
4.14.2006 3:40pm
Charles Chapman (mail) (www):
Average Joe said:
How does the law regarding illegal money transfer compare with the laws regarding counterfeit currency? I seem to dimly recall that passing counterfeit currency was illegal, "regardless of knowledge or intent", but I could be wrong.
I think you are wrong. I haven't looked it up, but I'm confident that the crime of passing counterfeit currency is not what lawyers call a "strict liability" offense -- i.e., one where doing the prohibited act is sufficient for conviction regardless of one's knowledge or state of mind. It can't be the case that if I go to the bank, cash my paycheck, get a $100 bill, go to the store and use it to buy food, only to discover to my shock and surprise that the bill was counterfeit that I'm guilty of a crime.

The critical distinction is between ignorance of the law versus ignorance of the facts. It very, very rarely that ignorance of the law is a defense. That is what is going on with the money transfer cases. Almost always (there are rare exceptions) saying, "yes, I did it, but I didn't know it was illegal" is not a defense. The old saying that goes with this is that "every man is presumed to know the law."

On the other hand, ignorance of a relevant fact, e.g., that the money was counterfeit, is frequently a defense.
4.14.2006 3:48pm
Brett Bellmore (mail):

The old saying that goes with this is that "every man is presumed to know the law."


A saying which dates back to a time so long ago, that it actually made some sense when it originated.
4.14.2006 4:22pm
Kazinski:
I think it should be noted here that the defendents were running an international money transferring business. It is not unusual for businesses to be held to a higher standard in regard to record keeping, meeting regulatory requirements and following the law in general than people engaged in managing their own affairs.

I think one of the reasons this case is getting attention is because there have been so few actual patriot act abuses, that there are some that are hoping they've actually found one in this case. Barkey Rosser started out his awareness campaign by calling the FBI "Gastapo", I think that indicates more what he was hoping to find than what actually happened.
4.14.2006 6:16pm
adam S (mail) (www):
But I'm not sure that this is right as to prophylactic rules that are aimed at preventing the transnational distribution of funds to terrorists (distribution that can happen even if the intermediaries are well-intentioned); at the very least, the argument for decriminalizing this has to be made, rather than just assumed.


Do you consider the huge expense, and extremely spotty track record of the law at stopping terrorist finance, to be arguments for de-criminalization, or are they issues that should have (and were not) overcome before the law was put into effect?
4.14.2006 9:01pm
Barkley Rosser (mail) (www):
First, I would like to thank Eugene Volokh for providing a link to the followup on this story so that any who wish to can pursue the matter further, even if I am not in full agreement with all his interpretations of the situation. However, I would like to respond to a couple of the remarks made above.

Charles Chapman

I think the "embezzling" et al refers to the charge made that HUD funds were taken. These are completely false charges, based on initial mistranslation of a ledger. However, this is a matter I have been told should not be discussed further at this time. No one is disputing that the defendants did transfer money in violation of certain of the Patriot Act statutes.

Kazinksi,

You state that the defendants were "running a money transferring business." Well, that is what they are charged with, but I would note that this was more a charity. They were not making money doing this. It was a matter of doing favors for people in the Harrisonburg Kurdish community, getting money back to their families and a charitable organization (pro-US NGO, not a terrorist group) back in Iraqi Kurdistan. These people were approached as leaders in the community to do this. Qambari did many favors for many people for no pay, including serving as a translator for the courts, and I have been told that he did translating (for free) at the local hospital over 500 times.

They did keep records. That is not what they are charged with, lack of records. However, the feds did fail to accurately translate their records, thus leading to this false charge about HUD monies.

I have long ago agreed that the term "gestapo" was unwise to use, although it was inspired by tactics especially involved in the arrest. These tactics were not discussed in the latest column that is posted up. However, a letter that appeared in the local paper two days later used the term "gestapo-like" again in conjunction particularly with the arrest tactics. I did not initiate the use of the term, and borrowed it from the first pamphlet that was circulated by local supporters of the arrested men. I fully agree it is excessive, but then the tactics used were excessive.

As I noted in my most recent post on Maxspeak, this whole operation, the Terrorism Task Force that initiated the investigation, and the overeager US attorney involved, came out of Roanoke, VA. I think these people have too little to do. Harrisonburg is the only place with any noticeable middle easterners around. So, even though most of them are a bunch of pro-US Kurdish refugees, they went after them. This is very clear in that the community was subject to intensive investigation about their links with Saddam Hussein (who killed members of most of their families while they were in Iraq) and Osama bin Laden right after 9/11. Then they were gone after over this money transfer business. Why not just tell them to stop it, given it was clear none of this had anything to do with terrorism? This whole thing is like Abe Lincoln detailing security people to go after runaway slaves in the north in the Civil War about their links with Confederate president, Jefferson Davis, and confederate guerrilla commander, John Singleton Mosby.
4.17.2006 1:58pm