Report Offers Weak Insight on Causation but Lists Steps that Treasury Can and Should Take

The Department of Treasury (“DOT”) recently released its first ever strategy report (the “Strategy”) on the topic of de-risking, taking the form of a 54-page document that combines a summary of the problem of de-risking with an overview of recommended steps to solve it. While the Strategy is the first document of its kind issued by the U.S. government, it is not unexpected – Section 6215 of the Anti-Money Laundering Act of 2020 (“AMLA”) requires the DOT to develop a strategy to mitigate the adverse effects of de-risking after conducting interviews with regulators, non-profit organizations and other public and private stakeholders.

As we’ve discussed over the years, “de-risking” is a practice taken by financial institutions (FIs) to restrict certain categories of customers from accessing their services – typically due to the perception that the compliance risk associated with such customers would outweigh the benefits, financial or otherwise, of servicing them. It is important to note that the concept of de-risking is not about a customer’s individual risk profile; rather, de-risking involves a FI making a wholesale or indiscriminate determination about a category of customers, and failing to use an individualized risk-based approach favored by the anti-money laundering/countering the financing of terrorism (AML/CFT) regulatory framework.  As we have discussed, and as global watchdog groups have noted, de-risking often has a disproportionate impact on developing countries.  The Strategy itself notes that de-risking “prevent[s] low- and middle-income segments of the population, as well as other underserved communities, from efficiently accessing the financial system[.]” Thus, the issue of de-risking is intertwined with concerns regarding economic and ethnic disparities. 

As the Strategy notes, de-risking also can undermine development, humanitarian and disaster relief funds flowing to other countries.  Finally, de-risking can threaten the U.S. financial system because driving funds outside of the regulated financial system makes it harder to detect and deter illicit finance, and increases the risk of sanctions evasion. 

According to the Strategy, the profit motive of FIs is the main driver behind the ongoing problem of de-risking:  because the cost of compliance for risky categories of customers would be too high, FIs cannot justify providing services to them from a profitability perspective.

Arguably, this claim in the Strategy suffers from, at best, a certain lack of self-awareness and, at worst, a degree of hypocrisy, used to deflect a Congressional demand that the DOT address and ameliorate the problem of de-risking. Increasingly onerous BSA/AML regulations, the occasionally haphazard enforcement of those regulations, and the practical disconnect between the expectations of AML examiners and law enforcement agents arguably represent the true source of the compliance-related fears and costs that drive FIs to de-risk.  If banks and other FIs are rejecting certain customers wholesale, it’s often because they fear that they will get “dinged” during a regulatory examination for servicing such customers if perceived problems develop after the application of 20/20 hindsight, and because the compliance hoops can range from the onerous to the practically impossible.  Similar considerations are partially why FIs now file over four million Suspicious Activity Reports (“SARs”) annually, regardless of whether any given SAR is actually helpful to law enforcement: no one has been subjected to an enforcement action for filing too many SARs.

Continue Reading Department of Treasury Issues Strategy on De-Risking

Opinion Offers Narrow View of “Safe Harbor” Provision for Defense Attorneys Accepting Tainted Funds from Clients

Second in Series of Two Blog Posts Pertaining to Attorneys Convicted of Money Laundering

On April 25, the U.S. Court of Appeals for the Fourth Circuit affirmed the conviction of Baltimore defense attorney Kenneth Ravenell (“Ravenell”) for money laundering conspiracy, in violation of 18 U.S.C. § 1956(h).  Ravenell had proceeded to trial and had been acquitted of six charges, including conspiracy to distribute narcotics.  However, he was convicted on the single count of money laundering conspiracy, based on his alleged assistance to two drug dealer clients, and received a sentence of 57 months of imprisonment.

The Ravenell opinion (“Opinion”) involves a splintered set of findings across the three-judge panel.  It involves findings on important technical issues pertaining to the statute of limitations and the use of the conscious avoidance/willful blindness theory of prosecution, which is often critical in cases involving third-party professionals such as lawyers, accountants, and real estate agents.  But, more importantly, it involves a discussion of when defense attorneys may accept illegally-obtained proceeds from their clients as payment for legal representation, and if such funds ever may be provided through third parties.  As we will discuss, the Fourth Circuit interpreted very narrowly a “safe harbor” provision under 18 U.S.C. § 1957(f) for defense attorneys – and did so in a case in which the evidence, if accepted, made clear that the safe harbor did not apply.  Stated otherwise, bad facts may have resulted in inappropriately broad language applicable to other cases.

As we just blogged, the U.S. Attorney’s Office for the Southern District of New York also announced on April 25 that Robert Wise (“Wise”), a New York attorney, had pled guilty to a single count of conspiring to commit money laundering, in violation of 18 U.S.C. § 371.  This case arose out of the indictment of Vladimir Voronchenko, who has been charged in connection with a scheme to make payments to maintain multiple properties in New York and Florida owned by his friend and associate, sanctioned Russian oligarch Viktor Vekselberg.  

These two cases are very different.  But they both illustrate how attorneys – either business attorneys, or criminal defense attorneys – can get caught up in the problems of their own clients, particularly given the ability of the government to pursue a theory of willful blindness.

Continue Reading Fourth Circuit Upholds Money Laundering Conspiracy Conviction of Baltimore Defense Attorney

First of Two Blog Posts in a Series Pertaining to Attorneys Convicted of Money Laundering

In February, we blogged on the indictment of Vladimir Voronchenko (“Voronchenko”) in the Southern District of New York (“SDNY”), who was charged in connection with a scheme to make payments to maintain multiple properties in New York and Florida owned by his friend and associate, sanctioned Russian oligarch Viktor Vekselberg (“Vekselberg”).  The February indictment also contained allegations that Voronchenko had retained a then unnamed U.S.-based attorney to help carry out those alleged money laundering activities.

On April 25, the U.S. Attorney’s Office for the SDNY announced that Robert Wise (“Wise”), a New York attorney, had pled guilty to a single count of conspiring to commit money laundering, in violation of 18 U.S.C. § 371.  The substantive offense that was the object of the conspiracy was 18 U.S.C. § 1956(a)(2)(A), which criminalizes the act of transferring monetary instruments or funds into or outside of the United States with the intent to promote the carrying on of specified unlawful activity.  Interestingly, the superseding information charges Wise with violating the general criminal conspiracy statute, Section 371 (which carries a statutory maximum sentence of “only” five years), rather than violating the specific money laundering conspiracy provision, 18 U.S.C. § 1956(h) (which carries a statutory maximum sentence of 20 years).  It is unclear whether Wise is cooperating with investigators.

In our next post, we will discuss the Fourth Circuit’s affirmation of attorney Kenneth Ravenell’s conviction at trial for money laundering conspiracy, in violation of Section 1956(h).

Continue Reading New York Attorney Pleads Guilty to Conspiring to Commit Money Laundering in Connection with Indicted Russian Oligarch

Enforcement Trends, Crypto, Regulatory Developments — and More

I am very pleased to co-chair again the Practicing Law Institute’s 2023 Anti-Money Laundering Conference on May 16, 2023, starting at 9 a.m. in New York City (the event also will be virtual). 

I am also really fortunate to be working with co-chair Elizabeth (Liz) Boison, a partner at Hogan Lovells, and a founding member of the U.S. Department of Justice’s National Cryptocurrency Enforcement Team and a former prosecutor in the Criminal Division’s Money Laundering and Asset Recovery Section.

This year’s conference will be as informative, interesting and timely as always. 

We have another fantastic line-up of experienced and knowledgeable panelists:

The conference will tackle critical issues in BSA/AML/OFAC compliance and money laundering enforcement.  The three panels will be:

1.         Recent Trends in Money Laundering and Enforcement

The Department of Justice continues to bring major money laundering indictments and civil forfeiture actions.  The panel will discuss:

  • Enforcement actions against individuals: key cases and emerging trends.
  • Enforcement actions against organizations: key cases and emerging trends.
  • The implications for U.S. financial institutions and their AML programs, including risks and the red flags for potentially problematic customers and business lines.

2.         Digital Assets and AML: Evolving Regulations and Enforcement

One of blockchain’s most compelling and adopted use cases is to make the cross-border movement of money faster, cheaper, and decentralized. The panel will discuss:

  • The (near) future of crypto: what is the likely regulatory landscape going forward?
  • What do regulators expect a recipient to know about the source of digital asset funds (the Travel Rule, mixers/tumblers, hosted vs. unhosted wallets)?
  • Transaction tracing and investigations of illicit crypto schemes: illicit funds, hacking, ransomware, and more. How can crypto transactions be traced, and “bad guys” be identified – from the perspective of scheme victims, government investigators, and financial institutions?

3.         Regulatory Priorities: Beneficial Ownership, Effective AML Programs, National Priorities, and More

The historic AML Act and Corporate Transparency Act (“CTA”) expand the goals of the Bank Secrecy Act and continue to generate new regulations, government reports and implementation issues.   Topics discussed by the panel will include:

  • FinCEN has announced its national AML priorities. How can they be acted upon in a meaningful way?
  • The BSA now requires by statute “effective” AML programs to be “risk based.” What does that mean, in practice?
  • The AML Act seeks to maximize effective BSA reporting, such as SARs and CTRs, in part through enhanced information sharing between government and industry. Is progress occurring, and how might that goal be best realized?
  • The CTA requires beneficial ownership reporting by businesses upon incorporation. Do the implementing regulations appear to be effective? What is the impact of the CTA on existing customer due diligence requirements for financial institutions?

If you would like to remain updated on these issues, please click here to subscribe to Money Laundering Watch. To learn more about Ballard Spahr’s Anti-Money Laundering Team, please click here.

Last week, FinCEN “communicated,” so to speak, to private industry, law enforcement, regulators, and legislators in three very different ways:  through a FY 2022 Year In Review infographic; a first-of-its kind enforcement action against a trust company; and in statements before the U.S. House of Representatives.  This post summarizes each of these developments, which are unified by the motif of FinCEN asserting that it has an increasing role in protecting the U.S. financial system against money laundering, terrorist financing and other illicit activity; providing critical data and analytical support to law enforcement agencies pursuing these goals; and simultaneously policing and trying to collaborate with private industry regarding these goals.

Continue Reading FinCEN Round Up:  FY 2022 in Review; First AML Enforcement Against a Trust Company; and Comments to Congress

But Court Gives Turkish Bank Another Chance to Avoid Charges Under Common-Law Sovereign Immunity

On April 19, 2023, the United States Supreme Court issued a highly-anticipated decision in the case of Turkiye Halk Bankasi A.S., aka Halkbank v. United States.  The court ruled that Turkish state-owned Halkbank remained subject to criminal prosecution in U.S. courts under the Foreign Sovereign Immunities Act (“FSIA”) for fraud, money laundering and sanctions-related charges related to the bank’s alleged participation in a multi-billion dollar scheme to evade U.S. sanctions involving Iran.  Specifically, in a seven to two decision, the Court held that the FSIA does not provide foreign states and their instrumentalities with immunity from U.S. criminal proceedings.  However, the Court remanded the case back to the Court of Appeals for the Second Circuit to determine whether Halkbank still can claim sovereign immunity under common law principles.  The Court’s opinion clearly extends beyond just financial institutions owned by foreign governments, and instead implicates any number of foreign state-owned entities.

Continue Reading Supreme Court Rules Halkbank is Not Immune from Prosecution Under FSIA

On April 13, the State of Wyoming took the extraordinary step of filing a request for permission to intervene in the ongoing dispute between Custodia Bank, Inc. (“Custodia”) and the Board of Governors of the Federal Reserve System (“the Fed”) and the Federal Reserve Bank of Kansas City.  This dispute involves a complaint (now amended) filed by Custodia – a state-chartered special purpose depository institution (“SPDI”) based in Cheyenne, Wyoming – against the Fed and the Federal Reserve Bank of Kansas City, alleging that the defendants improperly denied Custodia’s application for a “master account” with the Fed. Generalizing greatly, having a master account allows financial institutions to operate in the normal course as a custodial bank in the U.S.  Having a Fed master account is therefore critical to any institution looking to operate in the U.S. financial system.

In a nutshell, Wyoming’s request to intervene critiques the defendants because of their “view of perceived inadequacies in Wyoming’s laws and regulations for SPDIs, [which are] partially responsible” for the denial of Custodia’s master account application.  More specifically, Wyoming accuses the defendants of seeking to treat Wyoming SPDIs in an inequitable manner, thereby “treating state-chartered non-federally regulated banks as second-class banks ineligible to compete with federally-regulated ones.”

This blog post focuses on an important issue referenced seemingly in passing in Wyoming’s request for permission to intervene, which is clearly motivating in part the filing by Wyoming:  on March 24, 2023, the Fed made public its January 27, 2023  Order Denying Application for Membership (the “Order”) by Custodia, which had requested the Fed’s approval under Section 9 of the Federal Reserve Act to become a member of the Federal Reserve System.  According to Wyoming, the Fed’s decision to deny Custodia’s application has the effect of preventing Custodia and other Wyoming SPDIs from ever being able to attain the status of federal regulation.  We focus here on the Order because of its much broader anti-money laundering (“AML”) and sanctions implications for any banks which are contemplating targeted services for the digital asset industry.  The 86-page Order is very detailed, and often also discusses safety and soundness concerns, as well as other issues.

As we discuss, the Order suggests that any bank will have a hard time convincing the Fed that crypto-heavy banking services can comply with the requirements of the Bank Secrecy Act (“BSA”) and U.S. sanctions law.  Likewise, the Fed has expressed its skepticism in the Order that blockchain analytics services, even when applied skillfully and with the best of intentions, actually can satisfy the BSA and U.S. sanctions law due to limitations inherent in crypto transactions relating to knowing with confidence who is actually conducting the transactions.  This same issue was also noted by the recent report by the U.S. Treasury regarding perceived AML and sanctions vulnerabilities in decentralized finance providers.

Continue Reading State of Wyoming Wades Into Custodia Bank Dispute with Federal Reserve — In Wake of Fed’s Rejection of Bank Due to Crypto-Related AML and OFAC Concerns

On April 6, 2023, the U.S. Department of the Treasury released a report examining vulnerabilities in decentralized finance (“DeFi”), including potential gaps in the United States’ anti-money laundering (“AML”) and countering the financing of terrorism (“CFT”) regulatory, supervisory, and enforcement regimes for DeFi.  The report concludes by making a series of recommendations, including the closing of “gaps” in the application of the Bank Secrecy Act (“BSA”) to the extent that certain DeFi services currently fall outside the scope of the BSA’s definition of a “financial institution” covered by the BSA.  The report cautions that it does not alter any existing legal obligations, issue any new regulatory interpretations, or establish any new supervisory expectations.

Continue Reading U.S. Treasury Releases Report and Recommendations Regarding Vulnerabilities in Decentralized Finance

On March 30, 3023, the Financial Crimes Enforcement Network (FinCEN) issued a Financial Trend Analysis focusing on business email compromise (BEC) trends and patterns in the real estate sector (referred to as “RE BEC”). The report is required under Section 6206 of the Anti-Money Laundering Act of 2020 (AMLA). This section of AMLA requires FinCEN to periodically publish threat patterns and trend information derived from BSA filings. To date, FinCEN has published four other reports. BEC attacks and scams continue to rise and FinCEN has issued several pieces of guidance in recent years, including an updated advisory and a fact sheet regarding the Rapid Response Program (RRP), which assists victims of BEC attacks.

The real estate sector is not immune from BEC attacks and is particularly vulnerable given the high-dollar value of transactions and numerous entities involved. This vulnerability was likely exacerbated given the average price of homes increased significantly during the review period. FinCEN previously reported in 2019 that the real estate sector was the third most targeted sector for BEC attacks. BEC attackers target businesses and organizations that conduct wire transfers and rely on email communications regarding the transfers, typically compromising a key email account to fraudulently direct funds to the attacker.

The analysis provides data filed with FinCEN between January 2020 and December 2021. During the reporting period, there were a total of 2,260 filings reporting $893 million in RE BEC incidents.

Key highlights of the analysis include:

  • Four money laundering typologies were identified: money mules used to obfuscate ties to attackers, money mules recruited through romance scams, ties to other fraud types, and the use of alternative payment systems to convert illicit proceeds (such as convertible virtual currency).
  • The average value of RE BEC incidents increased in 2021 with an average monthly value of $116,233.
  • Nearly 88% of incidents involved initial domestic transfers of funds to accounts at U.S. depository institutions. The top three international destinations of transfers included Hong Kong, China, and Mexico.
  • The report could not fully analyze fund recovery success rates, as some filings did not include this information or recovery efforts were initiated but not yet determined. Of the filings that did include this information, roughly 22.21% of depository institutions recovered the full amount of the funds and 20.37% indicted no funds could be recovered.
  • As reflected by the following chart, title companies and closing entities were the most frequently impersonated party, followed by investors and realtors as the most frequent impersonations.

The report also highlighted the importance of detecting and mitigating RE BEC attacks through system assessments of vulnerability and taking action to increase resiliency against attacks. In addition, FinCEN encourages the adoption of a multi-faceted transaction verification process and training and awareness to identify and evade phishing attempts.

In the press release accompanying the analysis, FinCEN noted that “[t]oday’s report emphasizes the critical role of timely reporting of cyber-enabled crime to enable FinCEN and law enforcement to interdict, freeze, and recover stolen funds through cyber-enabled fraud, such as BEC, through FinCEN’s Rapid Response Program (RRP).” As indicated in the report, the success rates of recovering funds are mixed but FinCEN has had greater success rates in identifying and freezing funds when victims or financial institutions report unauthorized and fraudulent BEC wire transfers to law enforcement within 72 hours of the transaction. The report also promoted the use of information sharing under a Section 314(b) program, and the continued reporting of RE BEC attacks through SAR filings.

If you would like to remain updated on these issues, please click here to subscribe to Money Laundering Watch. Please click here to find out about Ballard Spahr’s Anti-Money Laundering Team.

On March 24, 2023, the Financial Crimes Enforcement Network (FinCEN) issued a press release and published initial guidance to assist the public in understanding the beneficial ownership information (BOI) reporting requirements under the Corporate Transparency Act (CTA). The guidance comprised Answers to Frequently Asked Questions (FAQs), a one-pager informative graphic explaining the applicable reporting filing dates, and a one-pager Answers to Key Questions on beneficial owner reporting. Additionally, FinCEN published a one-minute Introductory Video and a more detailed four-and-a-half minute Information Video about the BOI reporting requirement.

In the press release, FinCEN Acting Director Himamauli Das stated that the agency was committed to ensuring the implementation of the CTA’s BOI reporting obligations was “as simple as possible, particularly for small businesses who may have never heard of or interacted with FinCEN before.”

We have blogged extensively on the CTA and FinCEN’s final and proposed regulations (here, here, here, and here), and will not repeat our analysis of these regulations – other than to note that the stated primary goal of the CTA was to enable law enforcement and regulators to obtain information on the “real” beneficial owners of so-called “shell companies,” including foreign entities registered in the United States, in order to “crack down” on the misuse of such companies for potential money laundering, tax evasion and other offenses.

As we will discuss, these publications from FinCEN appear to be designed to assist the general public in understanding the basic rules regarding the CTA and its implementing regulations.  To that extent, they succeed on their own terms.  But, they do not address more difficult or more nuanced issues presented by the statute and the regulations.  Meanwhile, and as we will discuss, FinCEN has been subject to pressure and criticism from both the U.S. Senate and industry groups regarding many of these same difficult and nuanced issues, including (i) whether FinCEN will or can verify the BOI information reported to it under the CTA, and (ii) revising the CTA reporting form currently proposed by FinCEN, which, as we have blogged, invites bad actors to not answer key questions.

Continue Reading FinCEN Publishes Initial Guidance and FAQs on BOI Reporting Under CTA While Facing Backlash Over Proposed Access Rules and Reporting Form