Convicted For The American Dream in the First Degree

Yulia Abair was new to the United States, having recently arrived from Russia and married an American.  But she was determined to make something of herself, starting her own massage therapy business and studying nursing.  Already, you no doubt get the same sense as the government, that this is a woman up to no good.

But the bank tellers sealed the deal.

The bank tellers told investigators that the money had a “musty,” “mildewy,” or “dirty” odor, as if it had been kept in a basement rather than freshly drawn from an ATM. Prosecutors inferred from the odd smell that the money must have come from an illegitimate source and brought the full force of the federal criminal law down on Abair.

Abair sought to buy a home in Indiana. To do so, she needed the funds from the home she sold in Moscow and deposited into her Citibank account there. Citibank was too busy filming its new commercial about how much it loves us to allow the transfer to happen. The old account was in Abair’s maiden name while the US account was in her married name, a far too complex problem for a bank to address. So she did what she had to do to buy her house.

Several weeks after signing the contract, Abair asked Citibank Moscow to transfer the purchase price from her account. The bank refused, apparently because her local bank account was in her married name and the Citibank Moscow account used her maiden name. The only way to reach her money in time for the closing was by withdrawing it bit by bit from Citibank ATMs in Indiana. Abair did so over a frenetic two weeks in which she repeatedly withdrew the maximum daily amount of cash (this ceiling was set in rubles but hovered around $6400).

And she then did the unthinkable. She deposited her ATM withdrawals in the bank here. Boom!  And so the government came down so hard on her that even the 7th Circuit dissenter in United States v. Abair, Judge Diane Sykes, had this to say:

But my different take on this case should not be understood as an endorsement of the government’s decision to pursue Abair with every weapon in its arsenal. Perhaps there’s a good (or at least adequate) explanation for so disproportionate a deployment of criminal justice resources. On the present record, however, this case shows every sign of being an overzealous prosecution for a technical violation of a criminal regulatory statute—the kind of rigid and severe exercise of law-enforcement discretion that would make Inspector Javert proud.

And yet, it was a dissent, just as the government could not bear the thought of Abair going unprosecuted.  After all, there was a technical violation of the anti-structuring laws, depositing money in a bank under the $10,000 threshold to avoid reporting requirements. Or not, but the money was musty, and she was made to fill out an unusual currency transaction form during one of the transactions, and, well, who cares if the source of the money is 100% legit, without any suggestion to the contrary.

Laws and laws, and the government must destroy anyone who violates them or there will be chaos in the streets. We can’t have chaos in the name of the American dream. So not only did the government exact its revenge, but it sought, and obtained, forfeiture of the full sum used for the home purchase, forcing Abair to sell the home to pay off the government.

But there’s more.

The case hinged on Abair’s credibility that she wasn’t doing any of this to evade reporting requirements, but just to overcome Citibank Moscow’s refusal to transfer the money directly because, well, it sucks, so she could use her money to buy a house, dastardly as that may be.  To rip her cred to shreds, the government went for a collateral attack under Rule 608(B) on cross, claiming she lied on her tax return and Free Application for Federal Student Aid (FAFSA) form.

As the opinion shows, the government hammered Abair on cross, with questions objectionable from all angles and despite the judge’s allowance of limited cross over the defense’s objection.  Funny how that happens.

Abair’s attorney maintained his objection, arguing that the documents had no bearing on truthfulness. Abair’s ex-husband had testified that he was the one who filled out the disputed expense information on their joint tax return, and the online FAFSA allowed Abair to skip questions about assets. The judge ruled that the filings were probative of Abair’s truthfulness under Rule 608(b) and that the probative value of the evidence was not substantially outweighed by the danger of prejudice. See Fed. R. Evid. 403. The judge said the prosecutor was free to question Abair “in a very limited manner on these subjects,” provided the questioning stopped at the point she denied lying on the forms.

As Judge David Hamilton, writing for the two-judge majority, notes, there was one overarching issue with this line of cross: the government had no good faith basis to believe that she had lied about anything whatsoever.  That stopped nothing:

The judge cautioned the prosecutor that he was “pushing the envelope” but did not take any corrective action, leaving the long and accusatory “question” hanging.

Defense counsel objected again, properly, for Abair had just denied having done so, but the prosecutor kept repeating the question. The judge was clearly attuned to the risk presented by this line of questioning, but he did not take effective action by stopping or rebuking the prosecutor or telling the jury to disregard these improper and accusatory questions.

The result was that the  prosecutor had excessive latitude not to ask questions but to state and repeat accusations in a way unmistakably intended to plant the accusations in the jurors’ minds. In this case, as we said in DeGeratto, “this cross-examination went much too far ith too little.” 876 F.2d at 584. The government lacked a good faith basis for this line of questioning under Rule 608(b), and the extent of its cross-examination makes clear that the error was not harmless.

As an aside, yet again, all is wrong, yet no one to blame for what Abair was put through:

We recognize that the government believes that Abair may have been involved in a range of other wrongdoing, but there is simply no evidence of other wrongdoing. For all that appears in this record, Abair is at most a one-time offender who committed an unusually minor violation of the structuring statute not tied to other wrongdoing.

And so Abair, now stripped of her home even though she may be able to get her money back, must endure a second trial for having sought the American dream.  And someone in the government employ believes this will allow us to sleep safer tonight.

H/T Howard Bashman and Eugene Volokh

6 comments on “Convicted For The American Dream in the First Degree

  1. John Barleycorn

    Judge Diane should host Jeopardy when Alex is on vacation and she isn’t wasting her time trying to be so firm in her dissents.

    I’ll take Adequate for $500 Diane. Ok John, Adequate for $500 it is.

    Most common but never spoken explanation for the disproportionate deployment of criminal justice resources.

    Let me think Diane…It’s a tough one but I will have to go with “What is low hanging fruit?”

    And the band played on.

  2. Charlesmorrison

    It’s a pretty bad day for the government when even the dissent is like, WTF government? Seriously, with the current budget constraints, this is where you are expending your resources?

    However, this decision seems like a “good for this day only ruling” in the making. The court was probably sympathetic to the defendant and found what it needed. So, the rare instance where an evidentiary ruling or prosecutorial misconduct isn’t harmless surfaces.

    Not practicing in federal court, I must ask: is she entitled to statutory interest if she gets an acquittal next round? Just kidding, I think I can presume the answer.

    1. SHG Post author

      Interest? Are you kidding. They don’t actually return the money, but they give her a credit against all future fines and restitution up to $100 (certain additional limitations may apply).

      Only kidding.

      1. Charlesmorrison

        I think she’s at least entitled to in-store credit for some of those great coloring books the Feds produce about “going to court.” Since links are a no-no, I won’t attempt one here, even if it was one of your posts.

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