Journal of Criminal Law and Criminology Volume 93 Article 1 Issue 2 Winter Winter 2003 The eT nuous Relationship between the Fight against Money Laundering and the Disruption of Criminal Finance Mariano-Florentino Cuellar Follow this and additional works at: https://scholarlycommons.law.northwestern.edu/jclc Part of the Criminal Law Commons, Criminology Commons, and the Criminology and Criminal Justice Commons Recommended Citation Mariano-Florentino Cuellar, The eT nuous Relationship between the Fight against Money Laundering and the Disruption of Criminal Finance, 93 J. Crim. L. & Criminology 311 (2002-2003) This Criminal Law is brought to you for free and open access by Northwestern University School of Law Scholarly Commons. It has been accepted for inclusion in Journal of Criminal Law and Criminology by an authorized editor of Northwestern University School of Law Scholarly Commons. 0091-4169/03/9302-0311 THEJOURNAL OF CRIMINAL LAW& CRIMINOLOGY Vol. 93, Nos.2-3 Copyright cc 2003by NorthwesteimUniversity, School of Law Printed in, U.S.A. THE TENUOUS RELATIONSHIP BETWEEN THE FIGHT AGAINST MONEY LAUNDERING AND THE DISRUPTION OF CRIMINAL FINANCE MARIANO-FLORENTINO CULLAR* This article examines the fight against money laundering as a case study of the separation between an enforcement system's objectives and performance. To launder money is to hide its illegal origin. The fight against money laundering is supposed to disrupt laundering in its various forms-especially what is done by third party launderers and leaders of criminal organizations. In the process, the fight is supposed to undermine the process of financing and profiting from crimes ranging from drug trafficking to terrorism. Yet this fight delivers less than what it promises. Like many other enforcement systems, the fight against money laundering involves three major components: statutes with criminal penalties charged by prosecutors, rules administered by regulators, and detection systems primarily run by investigators. A close analysis of its three components reveals the fight to have quite a limited scope, involving (1) the disproportionate imposition of severe penalties on predicate offenders who are easily detected; (2) lax and narrowly-focused regulatory authority; (3) limited capacity to detect a range of chargeable domestic and international offenses; and (4) global diffusion of a fight against money laundering that leaves . Assistant Professor, Stanford Law School. For their comments and insights, I am indebted to Bob Weisberg, Richard Craswell, Barbara Fried, Mark Kelman, David Mills, George Fisher, Lawrence Friedman, Bill Simon, Pam Karlan, Ian Ayres, Deborah Hensler, Robert Rabin, Richard Steinberg, Jeff Stmad, Michele Dauber, Rick Banks, Miguel M~ndez, Mitch Polinsky, Joe Grundfest, Joe Bankman and Kathleen Sullivan. Thanks to Ian Haney- Lopez, David Medina, Hector Garcia-Molina, Alex Hanson, Ted Senator and to the agents, regulatory officials and prosecutors who discussed the subject of this article with me. I appreciate the fine research assistance of Jamon Bollock and Everett Green, and particularly Brigham Daniels, along with the tremendous dedication of the Stanford Law School library staff, especially Erika Wayne and Paul Lomio. I refuse to launder my sole responsibility for any errors and omissions. This article is dedicated to my brother, Maximo. MARIANO-FLORENTINO CUELLAR [Vol. 93 implementing authorities plenty of room for discretion and lax enforcement. These limitations probably arise not because of blindness or bad intentions but because the major players involved in running the system-including legislators, prosecutors, investigators, and regulators-face a tangle of incentives that leads them to dilute the intensity and scope of enforcement against some targets and to enhance the sanctions faced by other targets. While there is some evidence that suspicious activity reporting probably helps identify drug money placement in banks, the system seems ill suited to detecting and disrupting the larger universe of criminal financial activity that is so often vilified by the rhetoric justifying the fight against money laundering. All of this makes it hard to target terrorist financing using the anti-laundering system, even though it is easy to freeze assets allegedly linked to terrorism. Some changes in the system such as enhancing audit trails and strengthening suspicious activity reporting and analysis could be defended in the name of making the system work, though politics would make them difficult to achieve and their ultimate consequences are hard to predict. In the meantime, any inequities in the detection of predicate crimes end up being reproduced in money laundering prosecutions, and the system's most compelling objectives-detecting crimes in a new way, and targeting third-party launderers and leaders of criminal networks- seem mostly beside the point. TABLE OF CONTENTS IN TRO DU C TIO N .......................................................................................... 3 13 I. THE FIGHT AGAINST MONEY LAUNDERING .......................................... 323 A. HOW TO LAUNDER M ONEY .......................................................... 324 B. COMPONENTS OF THE ENFORCEMENT SYSTEM .................... 336 1. Criminal Statutes Chargedby Prosecutors......................... 336 2. Rules Administered by Regulators ...................................... 352 3. Detection Systems (Primarily)Run by Investigators........... 364 C. THE SYSTEM'S GLOBAL DIFFUSION .......................................... 374 II. JUSTIFYING THE FIGHT AGAINST MONEY LAUNDERING AS AN ATTACK ON CRIMINAL FINANCE .......................................................... 380 A. THE CAUTIOUS CASE FOR DISRUPTING CRIMINAL F IN A N C E ........................................................................................... 3 80 2003] TENUOUS RELATIONSHIP 1. Disruptionof the FinancialActivities of (and the Supply of Services to) Criminals,Especially Leaders of Crim inal Organizations ......................................................381 2. Aid to Detection of PredicateOffenses ...............................388 3. Cleansing the FinancialSystem of Benefits Derivedfrom Crim e ..................................................................................3 8 9 4. Assessing the Justificationsand the Goals They Imply .......391 B. THE "OFFICIAL" STORY: LEGISLATIVE HISTORY AND EXECUTIVE JUSTIFICATION .........................................................394 III. THE SYSTEM 'S CONSEQUENCES ..........................................................403 A. THE REALITY OF THE FIGHT AGAINST LAUNDERING ..........404 1.Result #1: Severe PenaltiesFocused on Predicate Offenders and Activity Involving Aggregations of Cu rrency ..............................................................................4 0 4 2. Result #2: Regulations of Limited Scope ............................425 3. Result #3: Lax Enforcement of Existing Regulatory A u th o rity.............................................................................. 4 3 3 4. Result #4: Globalizationof the Fight Against Money L a u n d ering.......................................................................... 4 3 8 B. W HAT GOES UNDETECTED ...........................................................440 IV. THE FATE OF THE EFFORTS TO DISRUPT CRIMINAL FINANCE .............444 A. FORCES SHAPING THE SYSTEM: THE POLITICAL ECONOMY OF DISCRETIONARY ENFORCEMENT ...................444 B. CHANGES TO THE SYSTEM ...........................................................453 1. Incremental Changes in Substantive Criminal Statutes and R egulatory P olicy ........................................................453 2. Radical Changes (and the Questions Raised)..................... 455 C O N C LU SIO N .............................................................................................4 60 INTRODUCTION Here is a classic description of the "money laundering" game.' A drug dealer has a large amount of currency earned from the sale of ' The term "money laundering" became ubiquitous in law enforcement discussions of drug and organized crime during the 1980s after a Reagan Administration report highlighted the perceived impact of money laundering on crime. See U.S PRESIDENT'S COMM'N ON ORGANIZED CRIME, INTERIM REP'T TO THE PRESIDENT AND ATTORNEY GENERAL, THE CASH CONNECTION: ORGANIZED CRIME, FINANCIAL INSTITUTIONS, AND MONEY LAUNDERING 7 (1984) (cogently defining money laundering as "the process by which one conceals the MARIANO-FLORENTINO CUELLAR [Vol. 93 crack and heroin.2 His immediate problem is getting someone to turn stacks of crumpled $10 and $20 bills into balances at a local bank branch that can be easily transferred around the world, or across town to pay his supplier.' Once the money is credited to an account and moved around enough, it can be plowed back into more of the same criminal activity, invested in the legitimate economy, used to finance other criminal activities such as terrorism (so we are told in a post- September 11 world), or simply enjoyed by someone as profit. To fight this system of criminal finance, governments aver a commitment to use a combination of criminal investigators- including undercover agents who offer to launder money and then existence, illegal source, or illegal application of income, and disguises that income to make it appear legitimate"). The report ascribes the term to "the argot of criminals, who refer to 'dirty' or 'black' cash being 'washed' so that it can be used