                Case: 12-13608       Date Filed: 10/03/2013        Page: 1 of 15


                                                                                    [PUBLISH]

                  IN THE UNITED STATES COURT OF APPEALS

                            FOR THE ELEVENTH CIRCUIT
                              ________________________

                                     No. 12-13608
                               ________________________

                      D.C. Docket No. 5:11-cr-00207-VEH-PWG-1


UNITED STATES OF AMERICA,

                                                                           Plaintiff - Appellee,

                                                 versus

JERRY DWAYNE LANG,


                                                                       Defendant - Appellant.
                               ________________________

                      Appeal from the United States District Court
                         for the Northern District of Alabama
                             ________________________

                                      (October 3, 2013)

Before CARNES, Chief Judge, TJOFLAT, Circuit Judge, and MARRA,* District
Judge.

CARNES, Chief Judge:




       * Honorable Kenneth    A. Marra, United States District Judge for the Southern District of
Florida, sitting by designation.
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      The lifeblood of many crimes is cash. So that federal law enforcement can

more readily trace the flow of large amounts of cash, the law requires a financial

institution to file with the Department of the Treasury reports of cash transactions

by any person on a single day that exceed $10,000. If that were all, the reporting

requirement could be evaded through the simple expedient of dividing large cash

transactions into amounts small enough not to trigger it. To prevent that and

similar end runs, the law makes it a crime to structure cash transactions for the

purpose of evading the reporting requirement. See 31 U.S.C. § 5324(a)(3).

      Jerry Lang was indicted on 85 counts of violating § 5324(a)(3). See App. A

to this opinion. The jury acquitted him of 15 of those counts (1–12, 15, and 72–73)

and convicted him of the other 70. He raises several issues in this direct appeal,

but we need not go beyond his challenge to the sufficiency of the indictment.

      An indictment is sufficient if it: “(1) presents the essential elements of the

charged offense, (2) notifies the accused of the charges to be defended against, and

(3) enables the accused to rely upon a judgment under the indictment as a bar

against double jeopardy for any subsequent prosecution for the same offense.”

United States v. Dabbs, 134 F.3d 1071, 1079 (11th Cir. 1998). Because Lang

failed to challenge the indictment in the district court, however, we must find it

sufficient “unless it is so defective that it does not, by any reasonable construction,

charge an offense for which the defendant is convicted.” United States v. Pena,

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684 F.3d 1137, 1147 (11th Cir. 2012) (quoting United States v. Gray, 260 F.3d

1267, 1282 (11th Cir. 2001)). If the indictment “provides facts and the specific

statute under which the defendant is charged, the court will find the indictment

sufficient.” Id. at 1148. The indictment in this case does not provide the necessary

factual allegations. It fails under any reasonable construction to charge all of the

elements of the offense.

      Section 5324(a)(3) prohibits a person from “structur[ing] or assist[ing] in

structuring, or attempt[ing] to structure or assist in structuring, any transaction with

one or more domestic financial institutions” for the purpose of evading 31 U.S.C. §

5313(a)’s requirement that a financial institution report to the government cash

transactions exceeding a particular amount. 31 U.S.C. §§ 5324(a)(3), 5313(a).

That amount is set by regulation at $10,000.00. 31 C.F.R. § 1010.311

(implementing § 5313(a) and setting the reporting threshold at “more than

$10,000”). Section 5324 does not expressly define the term “structuring,” but the

Supreme Court has explained that the crime of structuring includes “break[ing] 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 v. United States, 510 U.S. 135, 136, 114 S.Ct. 655, 657

(1994).



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      Another regulation promulgated under § 5313(a), the statute requiring

financial institutions to file currency transaction reports, provides that a person

structures a transaction if he:

      conducts or attempts to conduct one or more transactions in currency, in any
      amount, at one or more financial institutions, on one or more days, in any
      manner, for the purpose of evading the reporting requirements under
      § 1010.311.

31 C.F.R. § 1010.100(xx). In order to be “for the purpose of evading” the

reporting requirements, the structured transaction must involve an amount that is

more than $10,000; otherwise, evasion would not be necessary or possible because

there would be no reporting requirement anyway.

      When the evasion takes the form of breaking down a single amount that

exceeds $10,000 into cash transactions that do not, the question arises whether one

or more than one structuring crime has been committed. Two other circuits have

answered that question about the proper unit of prosecution for structuring. In

United States v. Davenport, 929 F.2d 1169, 1171–72 (7th Cir. 1991), the defendant

was convicted of twelve counts. The first charged a conspiracy to structure; the

second charged the structuring of $81,500 in proceeds from a transaction by

breaking that amount into ten deposits of cash, each under $10,000; and the last ten

counts individually charged that each one of those ten deposits of cash was a

separate structuring crime. The Seventh Circuit held that those last ten counts

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“should have been thrown out” because “[t]he statute does not forbid the making of

deposits. It forbids the structuring of a transaction.” Id. at 1171. The court

explained that the one substantive structuring crime was breaking up the larger

amount of cash, the deposit of which would have exceeded the reporting threshold

had it not been divided into smaller amounts. Id. The conclusion: “[T]he

structuring itself, and not the individual deposit, is the unit of crime.” Id. at 1172.

      The Tenth Circuit reached the same conclusion in United States v. Nall, 949

F.2d 301 (10th Cir. 1991). There a third party paid the defendant $26,000, from

which the defendant paid $24,000 to a bank as mortgagor; he did so with cash

payments of $9,000, $9,000, and $6,000 on three separate days. Id. at 307–08.

The indictment charged each of those three cash payments as a separate structuring

crime, but the Tenth Circuit held that there was only one structuring crime, which

was comprised of the three cash payments. Id. We agree with the Seventh and

Tenth Circuits and hold that the proper unit of prosecution in structuring is the

amount exceeding the reporting threshold that is structured into smaller amounts

below that threshold, not each of the resulting sub-threshold transactions.

      In this case, each count of the indictment charges as a separate structuring

crime a currency transaction involving a single check. Each check alleged is for an

amount less than $10,000, and no combination of two or more checks is alleged in

any count. See App. A. A cash transaction involving a single check in an amount

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below the reporting threshold cannot in itself amount to structuring because the

crime requires a purpose to evade the reporting requirement, and that requirement

does not apply to a single cash transaction below the threshold. The government’s

theory (at least its current theory) is that Lang received from one source 21

payments exceeding $10,000 over a period of eight months, he had those larger

payments broken into multiple checks each of which was less than $10,000, and he

then cashed those checks separately in a way that evaded the reporting

requirements. That is all well and good, but it is not what is alleged in the

indictment. Instead of a series of counts each alleging a payment or payments

totaling more than $10,000 that were structured into checks of smaller amounts,

which were then cashed, the indictment consists of 85 counts each of which

separately alleges that a single check in an amount less than $10,000 was

structured. That is not possible. When cashed checks come to the structuring

dance, it takes at least two to tango.

      Paragraph 1, which is realleged by reference into each count, does state that

Lang’s alleged structuring was “part of a pattern of illegal activity involving more

than $100,000 in a 12-month period.” That is not, however, a sufficient allegation

of the government’s belated grouping theory. The government does not contend

that Lang structured a single payment exceeding $100,000 by breaking it down

into amounts of $10,000 or less. Instead, the quoted language is an attempt to

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plead the factual predicate for the enhanced penalties provided by 31 U.S.C. §

5324(d)(2) (“Whoever violates this section while violating another law of the

United States or as part of a pattern of any illegal activity involving more than

$100,000 in a 12-month period shall be” subject to a higher fine and sentence of

imprisonment.).

       We cannot combine the allegations from separate counts to allege what the

indictment itself does not. Instead, “each count of an indictment must be regarded

as if it were a separate indictment and must stand on its own content without

dependence for its validity on the allegations of any other count not expressly

incorporated.” United States v. Huff, 512 F.2d 66, 69 (5th Cir. 1975). 1

Allegations in one count of an indictment are not automatically incorporated into

another; express incorporation is required. United States v. Schmitz, 634 F.3d

1247, 1262 (11th Cir. 2011). We have said that where a challenge to the

sufficiency of an indictment is raised for the first time on appeal, “the court can

consider the content of other counts of the indictment in order to give context to

the challenged count so long as the defendant fails to show actual prejudice.”

Pena, 684 F.3d at 1148 n.8. The problem here, however, is not lack of context but

the failure to plead a crime in any of the counts. When every count suffers from


       1
        In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.1981) (en banc), we
adopted as binding precedent all decisions of the former Fifth Circuit handed down before
October 1, 1981.
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the same insufficiency, nothing pleaded in one insufficient count can cure the

insufficiency in another. Because all of the parts suffer from the same problem,

the whole cannot solve it. The only way to remedy the defects in the indictment

would be to rewrite it, and that we may not do. See Huff, 512 F.2d at 69 (“A grand

jury indictment may be amended only by resubmission to a grand jury ‘unless the

change is merely a matter of form.’”) (quoting Russell v. United States, 369 U.S.

749, 770–71, 82 S.Ct. 1038, 1050 (1962)).

      For these reasons, we conclude that the indictment is “so defective that it

does not, by any reasonable construction, charge an offense for which the

defendant is convicted.” Pena, 684 F.3d at 1147 (quotation marks omitted). This

is not a mere multiplicity situation where some counts may be upheld if others are

vacated. See United States v. Bonavia, 927 F.2d 565, 571 (11th Cir. 1991); United

States v. Mastrangelo, 733 F.2d 793, 802 (11th Cir. 1984). Where no count in the

indictment charges a crime, the defendant is entitled to have the judgment vacated

and the case remanded with instructions that the indictment be dismissed.

      Accordingly, the judgment is VACATED and the case is REMANDED with

directions that the indictment is to be dismissed.




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