United States v. Yulia Abair

746 F.3d 260, 93 Fed. R. Serv. 1204, 2014 WL 1045668, 2014 U.S. App. LEXIS 5151
CourtCourt of Appeals for the Seventh Circuit
DecidedMarch 19, 2014
Docket13-2498
StatusPublished
Cited by18 cases

This text of 746 F.3d 260 (United States v. Yulia Abair) is published on Counsel Stack Legal Research, covering Court of Appeals for the Seventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Yulia Abair, 746 F.3d 260, 93 Fed. R. Serv. 1204, 2014 WL 1045668, 2014 U.S. App. LEXIS 5151 (7th Cir. 2014).

Opinions

HAMILTON, Circuit Judge.

Two weeks before she was planning to close on the purchase of a new home in Indiana, Yulia Abair learned that her bank in Russia would not wire the purchase price from her account. She managed to secure the money before the closing by withdrawing a few hundred dollars at a time from ATMs up to her maximum daily limit and depositing the cash at her bank in Indiana. She was charged with violating a federal criminal statute that prohibits structuring currency transactions in order to evade federal reporting requirements for transactions involving more than $10,000 in currency. 31 U.S.C. § 5324(a)(3). Abair was convicted in a jury trial. She also agreed to sell her new home and to forfeit the entire proceeds to the government. She argues on appeal that the trial court erroneously applied Federal Rule of Evidence 608(b) by allowing the prosecutor to cross-examine her at length about alleged false statements on a tax return and student financial aid applications. We find that the government lacked a good faith basis for believing that Abair lied on the tax and financial aid forms and therefore conclude that the district court erred by allowing the prosecutor to ask a series of accusatory and prejudicial questions about them under Rule 608(b). We cannot say that the error was harmless in a trial that hinged on Abair’s credibility. We reverse Abair’s conviction and remand for a new trial. Abair also challenges the forfeiture of the entire proceeds of her home sale as an unconstitutionally excessive fine. We offer some guidance on that issue in case it arises again after remand.

I. Factual Background

Abair emigrated to the United States from Russia in 2005 and married an American citizen. They lived together in Indiana, where Abair ran a massage therapy business and worked toward her nursing degree. During this time, Abair still owned her old apartment in Moscow. After being divorced, Abair sold the apartment in 2010 and deposited the proceeds in her account with Citibank Moscow. The next year, she signed a contract to buy a home for cash in South Bend, Indiana. That agreement set the closing for June 3, 2011.

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). Over the same period, Abair made eight deposits at her local bank in amounts ranging from $6400 to $9800 — all below the $10,000 limit at which the currency reporting requirements kick in. See 31 U.S.C. § 5313(a); 31 C.F.R. § 1010.311. The last of these deposits was on Tuesday, May 31. Because it immediately followed the Memorial Day weekend, her deposit was posted alongside one she had made on Saturday, pushing her “daily” [262]*262deposit over the $10,000 reporting threshold set by regulation. See 31 C.F.R. § 1010.813. The teller asked for her identification and filled out the required currency transaction report. We presume it was this report that led the government to investigate Abair.

The U.S. Attorney’s Office decided Abair was worth prosecuting, and she was indicted by a grand jury on eight counts— later correctly merged into one — of structuring financial transactions for purposes of evading the reporting requirements. Abair went to trial. Because the parties stipulated that her local bank was a domestic financial institution, the only two elements the government had to prove were that Abair knew of the reporting requirements and that she had structured her transactions for the purpose of evading those requirements.

During its case-in-chief, the government focused on Abair’s pattern of withdrawals and deposits. It showed that on each day Abair went to the bank, she had more than $10,000 in her possession yet always deposited less than that amount. The government called two IRS agents who had interviewed Abair. They testified that during the interview, which was not recorded, Abair revealed her knowledge of the reporting rules. The agents also testified that Abair told them outright that she had wanted to avoid the reporting rules because “she thought the government would look at her as though she was part of an organization or something, is what she said.”

For her part, Abair did not dispute that she was aware of the $10,000 limit by the time she spoke with the agents. But she said she learned about it only after making the deposits, when she asked a friend why she had been asked to show identification at the bank. Abair’s version was that the agents asked her why she thought the requirements existed, and she “said probably of organization or something — something like this.” (Abair had arrived in the United States speaking very little English, and she testified to continuing difficulties with complex or technical conversations.) She said her deposit amounts were based on how much cash she had on hand at the time and how much would fit in her purse.

In cross-examining Abair, the prosecutor sought to ask about her 2008 joint income tax return and the Free Application for Federal Student Aid (“FAFSA”) forms she filed while attending nursing school. Her attorney objected on relevance grounds. In a sidebar conference, the prosecutor said he believed Abair misrepresented her business expenses on the tax return and lied on her student aid applications about her business income and her assets. He intended to ask about the filings to attack Abair’s truthfulness under Federal Rule of Evidence 608(b), which allows cross-examination about specific instances of a witness’s conduct if they are probative of character for truthfulness, but prohibits extrinsic evidence to prove such instances. 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.

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Bluebook (online)
746 F.3d 260, 93 Fed. R. Serv. 1204, 2014 WL 1045668, 2014 U.S. App. LEXIS 5151, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-yulia-abair-ca7-2014.