United States v. Willi Beusch and Deak & Company of California, Inc., United States of America v. Willi Beusch and Deak & Company of California, Inc.

596 F.2d 871 UNITED STATES of America, Plaintiff-Appellee, v. Willi BEUSCH and Deak & Company of California, Inc., Defendants-Appellants. UNITED STATES of America, Plaintiff-Appellant, v. Willi BEUSCH and Deak & Company of California, Inc., Defendants-Appellees. Nos. 78-1904, 78-2173 and 78-1577. United States Court of Appeals, Ninth Circuit. May 10, 1979. Wm. A. Brockett, San Francisco, Cal., for defendants. Edward P. Davis, Jr., Asst. U. S. Atty., San Francisco, Cal., for U. S. Appeal from the United States District Court for the Northern District of California. Before CARTER, BRIGHT * and CHOY, Circuit Judges. JAMES M. CARTER, Circuit Judge: 1 Deak & Company of California (Deak), headquartered in San Francisco, is a wholly-owned subsidiary of Deak and Co. of New York, the largest foreign currency exchange dealer in the world. Beusch was Vice-President and the senior corporate officer of Deak located in San Francisco. Deak was convicted of 377 misdemeanor violations of the Bank Secrecy Act, 31 U.S.C. §§ 1058 and 1101 1 failure to report receipt of currency in an amount exceeding $5,000 from outside the United States. Beusch, as responsible corporate officer…

Deak & Company of California (Deak), headquartered in San Francisco, is a wholly-owned subsidiary of Deak and Co. of New York, the largest foreign currency exchange dealer in the world. Beusch was Vice-President and the senior corporate officer of Deak located in San Francisco. Deak was convicted of 377 misdemeanor violations of the Bank Secrecy Act, 31 U.S.C. §§ 1058 and 1101 1 — failure to report receipt of currency in an amount exceeding $5,000 from outside the United States. Beusch, as responsible corporate officer in the offending transactions, was likewise convicted of the 377 misdemeanors. Both appeal from those convictions, citing to in-sufficiencies in the search warrant affidavit and excesses in the search which uncovered most of the incriminating evidence. Deak adds to these alleged errors the claim that the evidence was insufficient to sustain a finding of willful violation of § 1101, and the claim that one of the jury instructions given constituted reversible error.

The United States Government also appeals from the dismissal of a four-count felony indictment against Deak and Beusch which charged that the same set of facts alleged in the indictment for the…

concurring in part, dissenting in part.

While I concur in the affirmance of the misdemeanor convictions of the defendants, Willi Beusch and Deak & Company of California (Deak), I would reject the Government’s appeal. The Government, unsatisfied with obtaining 377 misdemeanor convictions against defendants, requests reinstatement of a four-count felony indictment dismissed by the district court.

The felony charges arose out of the same conduct as the misdemeanor charges — the willful failure of Deak and Beusch, on 377 occasions, to report their receipt of currency exceeding $5,000 from outside the United States. Such conduct violates the foreign financial transaction reporting requirements of section 231 of the Bank Secrecy Act of 1970 (the Act) and clearly amounts to misdemeanor offenses under 31 U.S.C. § 1058 (1976). 1 The Government contends that these reporting violations, which involved transactions totaling more than $100,000 in each of four twelve-month periods, may be aggregated to form four felony violations “committed as part of a pattern *880 of illegal activity involving transactions exceeding $100,000 in a twelve-month period.” 31 U.S.C. § 1059 (2) (1976) (emphasis…