Michael Peck v. United States

73 F.3d 1220, 1995 U.S. App. LEXIS 37142, 1995 WL 764340
CourtCourt of Appeals for the Second Circuit
DecidedDecember 28, 1995
Docket1021, Docket 94-2444
StatusPublished
Cited by23 cases

This text of 73 F.3d 1220 (Michael Peck v. United States) is published on Counsel Stack Legal Research, covering Court of Appeals for the Second Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Michael Peck v. United States, 73 F.3d 1220, 1995 U.S. App. LEXIS 37142, 1995 WL 764340 (2d Cir. 1995).

Opinions

MAHONEY, Circuit Judge:

Petitioner-appellant Michael Peck appeals from a judgment entered June 2, 1994 in the United States District Court for the District of Connecticut, Alan H. Nevas, Judge, that granted in part and denied in part Peck’s petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2255.1 Peck had been convicted, following a jury trial, of two counts of structuring cash transactions to evade bank reporting requirements in violation of 31 U.S.C. §§ 5324(3), 5313(a), and 5322(a).2 In his petition, he contends that the conviction should be vacated because, in light of the Supreme Court’s decision in Ratzlaf v. United States, — U.S. -, 114 S.Ct. 655, 126 L.Ed.2d 615 (1994), decided after his judgment of conviction was entered, the jury was erroneously instructed with respect to the scienter required for conviction.

Peck did not pursue a direct appeal. Nonetheless, because he has demonstrated cause for his failure to take a direct appeal and actual prejudice resulting from the jury instruction, we reverse the judgment of the district court and vacate Peck’s structuring convictions.

Background

At all relevant times, Peck was an attorney practicing in Hartford, Connecticut. In July 1991, a grand jury indicted Peek on three counts of tax evasion for the years 1984 though 1986 and one count of wilful failure to file a tax return in 1987. The indictment charged that Peck had evaded more than $225,000 in taxes.

Peck was arraigned on these charges on August 1, 1991, and thereafter released on bond. Between then and the time of his trial on the tax charges in July 1992, which resulted in his conviction on all counts and a sentence of eighteen months imprisonment, Peck engaged in a series of transactions that formed the basis of the structuring convictions to which this petition pertains. Specifically, between November 7,1991 and November 27,1991, Peck made twelve separate cash deposits each in the amount of $7,500 and two cash deposits each in the amount of $5,000 into an account maintained by his father at the Society for Savings. He made three of the deposits on November 7, each at a separate branch. He also attempted to make a fourth deposit on that day at yet another branch, but declined to do so when he was informed that the bank would have to file a Currency Transaction Report (“CTR”).3 [1222]*1222(The Society filed CTRs with respect to the second and third deposits in any event.) He made the remaining deposits at branches of the institution on separate days throughout the month.

In addition, on March 27, 1992, Peck opened a new checking account at the Northeast Savings Bank, where he had never banked previously, by depositing a $50,000 cheek from a former law associate. On March 30, Peck withdrew $6,500 by cashing a “starter check,” one of the initial series of checks that he received when opening the account. On March 31, he withdrew by starter cheek $6,000, on April 1, $6,000, and on April 2, $6,500. The bank filed CTRs concerning these withdrawals.

On April 3, Peck attempted to withdraw an additional $6,000 from his Northeast Savings account; withdrew $7,000 from an account that he maintained at the Bank of Boston by writing a counter check; and sought to withdraw $6,000, but withdrew $2,000, from an account he maintained at the Society for Savings (separate from his father’s account). On April 6, he attempted to withdraw $5,000 from the Bank of Boston account, but declined to do so when informed that a CTR would be filed due to his April 3 withdrawal. Instead, he withdrew $5,000 from his Society for Savings account.

Peck was then arrested and charged in a two-count indictment with structuring cash transactions in violation of 31 U.S.C. §§ 5324(3), 5313(a), and 5322(a), and 31 C.F.R. §§ 103.22 and 103.53; the two counts relate to the November transactions and the March — April transactions, respectively.4

At Peck’s trial, the government introduced evidence of the foregoing, and to establish that Peck was aware of the institutions’ cash reporting requirements. In the latter regard, evidence demonstrated that cash deposits that Peck had made for himself or his clients had resulted in the filing of numerous CTRs over several years. Moreover, one bank teller recalled explaining the CTR requirement to Peck when Peck engaged in a cash transaction in excess of $10,000 in 1990.

Peck testified in his defense that he believed that the bank reporting requirements applied to transactions of less than $10,000, and therefore thought that the banks were filing CTRs for the transactions supporting his indictment. At the conclusion of Peck’s direct examination, the following exchange occurred:

Q. ... Did you ever intend to structure your banking transactions in order to [1223]*1223evade the requirements of these currency transaction reports?
A. No, I had no idea that there was ever such a thing as structuring, absolutely no awareness that there was a, such a criminal charge in my life.

Peck denied engaging in these transactions for the purpose of hiding assets from the Internal Revenue Service, although he admitted that he transferred his interest in his house to his wife and encumbered it with large mortgages to his father and sister in 1991. He claimed that these actions related principally to a civil lawsuit pending against him, although he admitted that he was motivated in part by his tax difficulties.

Peck also sought to explain the reasons for the cash transactions. With respect to the $100,000 deposited to his father’s account at the Society for Savings in November 1991, Peek claimed that he was repaying a loan that his father had made to him when he was unable to pay money owed to a law firm that was entitled to share a fee. However, as he conceded, there were no records of this loan, and his father had written a check to him for $100,000 dated November 12, 1991 and posted as paid on November 19, 1991 — after more than half of Peck’s cash had been deposited at the Society for Savings in purported repayment of the $100,000. Peek claimed that he did not need to deposit the check until the money he owed was due, and that he began repaying the debt at his earliest convenience.

Peck also explained that the three cash transactions that he made on November 7 were coincidental to his other errands; each time, he went home to pick up cash and would deposit the cash at a branch near wherever he had to be for other reasons.

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Bluebook (online)
73 F.3d 1220, 1995 U.S. App. LEXIS 37142, 1995 WL 764340, Counsel Stack Legal Research, https://law.counselstack.com/opinion/michael-peck-v-united-states-ca2-1995.