‘[T]he kind of rigid and severe exercise of law-enforcement discretion that would make Inspector Javert proud’

Howard Bashman (How Appealing) points to today’s Seventh Circuit opinion United States v. Abair (7th Cir. Mar. 19, 2014), decision, which contains the following line:

“[T]his 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.”

As Bashman points out, “[t]his quotation, believe it or not, comes from the dissenting opinion of the only judge on a divided three-judge Seventh Circuit panel who voted to uphold the defendant’s conviction.” Here’s the introduction to the majority (paragraph breaks added):

Two weeks before she was planning to close on the purchase of a new home in Indiana, appellant 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.

The main dispute at trial involved whether Abair deposited the amounts the way she did with the purpose of avoiding the reporting requirements, and the prosecutor’s cross-examination aimed to show that she was a dishonest person who indeed had this illegal purpose.

Eugene Volokh teaches free speech law, religious freedom law, church-state relations law, a First Amendment Amicus Brief Clinic, and tort law, at UCLA School of Law, where he has also often taught copyright law, criminal law, and a seminar on firearms regulation policy.

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