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Judges order new trial for woman who withdrew, deposited cash from ATMs

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In a split decision from the 7th Circuit Court of Appeals, the majority reversed a Russian woman’s conviction for violating a federal statute that prohibits structuring currency transactions in order to evade federal reporting requirements for transactions involving more than $10,000 in currency. The majority cited the prosecution’s questioning of the woman about past financial records as the reason for reversal.

Yulia Abair, who moved to the United States in 2005, married, and later got divorced, learned two weeks before the close on her new house that her bank in Russia would not deposit the money she needed from her account there to her U.S. account because her last name on the accounts did not match. She scrambled around Indiana, withdrawing the maximum daily amount of cash from her Russian account from Citibank ATMs and deposited the money into her local bank account. The government became aware of her activity when she made two deposits around Memorial Day, which pushed her daily deposit over the $10,000 reporting threshold set by regulation.

She was indicted by a grand jury on eight charges and convicted, with the judge merging the counts into one. At trial, the District judge allowed the prosecutor to ask Abair about a 2008 joint income tax return and the Free Application for Federal Student Aid forms she filled out while attending nursing school. The government wanted to attack Abair’s truthfulness by using these forms, claiming she lied on the forms.

In United States of America v. Yulia Yurevna Abair, 13-2498, the judges did not hide their beliefs that the government may have better directed its prosecutorial resources elsewhere instead of bringing charges against Abair, a nurse and mother of an 11-year-old son. Due to her conviction, she forfeited the entire value of her house after selling it, which was $67,000.

“In this case we conclude that the district court abused its discretion by allowing the cross-examination on Abair’s financial filings because the government did not provide a sufficient basis to believe the filings were probative of Abair’s character for truthfulness. Rule 608(b) requires that the crossexaminer have reason to believe the witness actually engaged in conduct that is relevant to her character for truthfulness,” Judge David Hamilton wrote for the majority.

While the 7th Circuit didn’t need to hold that the scope of the questioning itself was error under Rule 403 or under Rule 611’s bar on harassing or wasteful questioning, the cross-examination in this case went on so long and in such detail as to dispel any suggestion that the error was harmless, Hamilton continued.

“We recognize that the government believes that Abair may have been involved in a range of other wrongdoing, but there is simply no evidence of other wrongdoing. For all that appears in this record, Abair is at most a one-time offender who committed an unusually minor violation of the structuring statute not tied to other wrongdoing. We therefore have serious doubts that the forfeiture of her home’s entire $67,000 value comports with the ‘principle of proportionality’ that is the ‘touchstone of the constitutional inquiry under the Excessive Fines Clause,’ but further exploration of the issue can await a new trial.”

Judge Diane Sykes dissented from her colleagues because despite the prosecutorial overreaching, she found no legal error. To cross-examine a witness under Rule 608(b)(1), the cross-examiner needs to only have a good-faith factual basis to support the proposed line of questioning, and that stand was met in this case, she wrote.

Sykes also noted in a footnote, “Despite our disagreement about the legal issue under Rule 608(b)(1), my colleagues’ decision to reverse and remand for a new trial has the salutary effect of permitting a fresh exercise of prosecutorial discretion. The executive branch may choose to moderate its strict enforcement stance against Abair and resolve not to sink further resources into prosecuting her. Under the circumstances, that might be the most prudent and just thing to do.”

 

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  1. Im very happy for you, getting ready to go down that dirt road myself, and im praying for the same outcome, because it IS sometimes in the childs best interest to have visitation with grandparents. Thanks for sharing, needed to hear some positive posts for once.

  2. Been there 4 months with 1 paycheck what can i do

  3. our hoa has not communicated any thing that takes place in their "executive meetings" not executive session. They make decisions in these meetings, do not have an agenda, do not notify association memebers and do not keep general meetings minutes. They do not communicate info of any kind to the member, except annual meeting, nobody attends or votes because they think the board is self serving. They keep a deposit fee from club house rental for inspection after someone uses it, there is no inspection I know becausee I rented it, they did not disclose to members that board memebers would be keeping this money, I know it is only 10 dollars but still it is not their money, they hire from within the board for paid positions, no advertising and no request for bids from anyone else, I atteended last annual meeting, went into executive session to elect officers in that session the president brought up the motion to give the secretary a raise of course they all agreed they hired her in, then the minutes stated that a diffeerent board member motioned to give this raise. This board is very clickish and has done things anyway they pleased for over 5 years, what recourse to members have to make changes in the boards conduct

  4. Where may I find an attorney working Pro Bono? Many issues with divorce, my Disability, distribution of IRA's, property, money's and pressured into agreement by my attorney. Leaving me far less than 5% of all after 15 years of marriage. No money to appeal, disabled living on disability income. Attorney's decision brought forward to judge, no evidence ever to finalize divorce. Just 2 weeks ago. Please help.

  5. For the record no one could answer the equal protection / substantive due process challenge I issued in the first post below. The lawless and accountable only to power bureaucrats never did either. All who interface with the Indiana law examiners or JLAP be warned.

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