United States v. Bird

79 F.4th 1344

UNITED STATES of America, Plaintiff-Appellee, v. Zachary BIRD, Defendant-Appellant.

No. 22-10947

United States Court of Appeals, Eleventh Circuit

Filed: August 17, 2023

Appeal from the United States District Court for the Middle District of Florida, D.C. Docket No. 8:18-cr-00288-MSS-TGW-1

Holly Lynn Gershow, U.S. Attorney Service - Middle District of Florida, U.S. Attorney, U.S. Attorney's Office, Tampa, FL, for Plaintiff-Appellee.

Alex Reed Stavrou, Alex R. Stavrou, PA, Tampa, FL, for Defendant-Appellant.

Before Wilson, Newsom, and Lagoa, Circuit Judges.

Wilson, Circuit Judge:

Congress enacted the Currency and Foreign Transactions Reporting Act of 1970 (commonly referred to as the Bank Secrecy Act) to prevent individuals engaged in criminal conduct from utilizing financial institutions as intermediaries. See 31 U.S.C. § 5311; Ratzlaf v. United States, 510 U.S. 135, 138-39, 114 S.Ct. 655, 126 L.Ed.2d 615 (1994). To achieve this goal, the Bank Secrecy Act imposes a number of reporting requirements for particular financial transactions. See, e.g., 31 U.S.C. § 5313. Relevant here, domestic financial institutions are required to file currency transaction reports (CTRs) for any deposit, withdrawal, exchange, or transaction of more than $10,000 in currency on a single business day. 31 C.F.R. § 1010.311 (2011). To deter individuals from circumventing this requirement, Congress enacted 31 U.S.C. § 5324(a)(3), which criminalizes structuring transactions for the purpose of evading reporting requirements. Ratzlaf, 510 U.S. at 138-39, 114 S.Ct. 655; see also 31 U.S.C. § 5324(d). So, an individual who breaks a deposit in excess of $10,000 into smaller increments in order to avoid reporting requirements is generally guilty of "structuring." United States v. Aunspaugh, 792 F.3d 1302, 1311 (11th Cir. 2015).

A jury convicted Zachary Bird of illegally structuring two separate land-sale contract payments of around $270,000 each. On appeal, Bird argues that there was insufficient evidence to support his convictions. Reviewing the record to determine how a jury might reasonably conclude that he structured deposits to avoid the $10,000 reporting requirement, we see that Bird made 22 cash deposits below $10,000 over seven days to satisfy the first payment. Then, Bird made 38 cash deposits under $10,000 (some of which were made on consecutive days) over the course of around seven and a half months to satisfy the second payment. While we dive into greater detail below, suffice it for now to say there is sufficient evidence to support Bird's convictions.

Still, Bird argues that we should vacate his conviction due to a plainly erroneous jury instruction. So, we head back to the record where we discover that Bird jointly proposed the instruction that he now contests. Because Bird invited the error that he now challenges, we decline to review this issue.

Accordingly, we affirm Bird's convictions.

I. Background

The origins of this case come from Bird's work as the primary physician at a pain management clinic in Hillsborough County, Florida. In its second superseding indictment, the government charged Bird for unlawfully distributing, and maintaining his clinic for the purpose of distributing, controlled substances. The jury acquitted Bird of these charges (Counts 1-9), however, so they are largely irrelevant to the substance of this appeal. What is relevant, though, is how Bird used the cash profits from these operations, since that is what led to the two counts on which he was convicted.

In December 2014, Bird signed a contract to purchase land for $540,000. The contract broke Bird's payment obligations into two parts. First, Bird was required to pay a $267,667.77 down payment, plus a deposit and closing costs. After that, Bird had nine months to pay the $270,000 remainder.

The first payment was to be made to the trust account of the seller's attorney. From February 6, 2015, to February 12, 2015, Bird made 22 cash deposits ranging from $7,000 to $9,000, which totaled $193,175.76. As this suggests, the pattern of Bird's deposits was unorthodox. Over the course of just four of those days, Bird engaged in the following activity: four deposits at three separate bank branches on February 9, seven deposits at seven separate branches on February 10, three deposits at three separate branches on February 11, and seven deposits at seven separate branches on February 12. Finally, on February 12, the seller's attorney emailed Bird's real estate agent to 1) demand that the small cash deposits stop, 2) request Bird's identifying information so that he could file a Form 8300 required by the Internal Revenue Service, and 3) ask that the remaining sum ($74,492.01) be deposited in full by wire transfer. Bird complied with the attorney's request, and a Form 8300 was timely filed.

The second payment was to be paid into the seller's bank account. From March 10, 2015, to October 26, 2015, Bird made 38 cash deposits and one check deposit into the seller's account. None of these payments exceeded $10,000. Again, many transactions occurred on consecutive days or within days of each other, and at least two transactions occurred on the same day (July 24, 2015). From this string of payments, the government produced as evidence a bank deposit slip dated June 25, 2015. In the margin of the deposit slip were written three numbers that, when added together, exceeded $10,000. However, the top two numbers, when added together, only equaled $7,900, which was what Bird ultimately deposited during that particular bank visit.

Based on Bird's conduct, the government added two counts of structuring to evade reporting requirements in violation of 31 U.S.C. § 5324(a)(3) and 18 U.S.C. § 2 to his indictment. Count 10 corresponded to the first payment, while Count 11 corresponded to the second.

At trial, the government presented the jury with ample evidence laying out Bird's irregular deposit activity. In addition, the jury heard from a number of witnesses. Relevant here, Jimmy Kirby, a member of the Financial Crimes Enforcement Network, and Dan Ford, a financial investigator who provided contract work for the Drug Enforcement Agency, both testified. Kirby testified about the reporting requirements relevant to the charges. During his testimony, Kirby described Form 4789, which the government represented was the CTR that financial institutions filed when transactions exceeded the $10,000 threshold. As it turns out, Form 4789 had been expired for around fifteen years. However, it had been replaced by a different CTR, which for the transactions at issue here, has substantially the same reporting requirements. In addition to Kirby, Ford also testified about Bird's conduct and knowledge of Form 4789.

Also critical to this appeal, Bird exercised his right to testify. On the stand, Bird stated on re-direct that he did not know about any reporting requirements prior to receiving the email from the seller's attorney regarding Form 8300. Under cross-examination, however, it appears—though it is unclear—Bird testified that he did not learn about the reporting requirements from that email (Q: "You knew from [the seller's attorney's] e-mail that depositing over $10,000 triggered reporting requirements with the Government, correct?" A: "No, I don't know. I'm—he's asking me to do something and I provided the information for him.").

A jury returned a verdict of guilty on Counts 10 and 11, and the district court imposed concurrent 24-month sentences for both. Bird timely appealed.

II. Sufficiency of the Evidence: Structuring to Evade

Bird first argues that the evidence produced at trial was insufficient to support his two structuring convictions. We disagree.

A. Law

We review the sufficiency of the evidence to support a conviction de novo; however, "we 'view the evidence in the light most favorable to the verdict and draw all reasonable inferences and credibility choices in the verdict's favor.' " United States v. Iriele, 977 F.3d 1155, 1168 (11th Cir. 2020) (alterations adopted) (quoting United States v. Godwin, 765 F.3d 1306, 1319 (11th Cir. 2014)). It is inconsequential that evidence leaves room for innocent explanations for the defendant's conduct. See United States v. Howard, 28 F.4th 180, 188 (11th Cir. 2022). Indeed, "[a] guilty verdict 'cannot be overturned if any reasonable construction of the evidence would have allowed the jury to find the defendant guilty beyond a reasonable doubt.' " Iriele, 977 F.3d at 1168 (quoting United States v. Rodriguez, 732 F.3d 1299, 1303 (11th Cir. 2013)).

As referenced above, 31 U.S.C. § 5313(a) requires domestic financial institutions to file a report—a CTR—"at the time and in the way the Secretary [of the Treasury] prescribes" whenever they are "involved in a transaction for the payment, receipt, or transfer of United States coins or currency . . . in an amount, denomination, or amount and denomination, or under circumstances the Secretary prescribes by regulation." Pursuant to this authority, 31 C.F.R. § 1010.311 (2011) requires financial institutions to "file a report of each deposit, withdrawal, exchange of currency or other payment or transfer, by, through, or to such financial institution which involves a transaction in currency of more than $10,000, except as otherwise provided in this section."¹ 31 U.S.C. § 5324(a)(3) then proscribes "structur[ing] . . . or attempt[ing] to structure . . . any transaction with one or more domestic financial institutions" "for the purpose of evading [these] reporting requirements."²

"Structuring" in the context of 31 U.S.C. § 5324 means "to break up a single transaction above the reporting threshold into two or more separate transactions—for the purpose of evading a financial institution's reporting requirement." Ratzlaf, 510 U.S. at 136, 114 S.Ct. 655; see also Aunspaugh, 792 F.3d at 1311 ("To constitute structuring, a transaction of more than $10,000 must be broken into smaller increments, each of which...