Transmission Lines

United States v. Bah, No. 07-4370-cr (2d Cir. July 31, 2009) (Jacobs, Walker, Calabresi, CJJ)

Boubacar Bah ran a licensed money transmission business in New Jersey, but did not have an equivalent license in New York. He was convicted of operating an unlicensed money transmitting business, in violation of 18 U.S.C. § 1960, but the circuit reversed, finding that the district court erred in explaining the scope of § 1960 in its jury instructions.

Section 1960 makes it a crime to operate an “unlicensed money transmitting business” in interstate or foreign commerce in a “State where such operation is punishable as a misdemeanor or a felony under State law.” Under New York State law, it is a crime both to receive money for transmission and to transmit it without a license. Only the second of these is covered by § 1960, however, since the federal statute does cover the receipt of money for transmission.

This was Bah’s defense. He testified that customers would bring cash to him in New York. He would take the money to New Jersey and then lawfully transmit it to Africa. But the district court erroneously charged this defense out of the case. It rejected Bah’s request for an instruction that “1960 does not make it unlawful to receive money for transmission without a license,” even as it instructed – correctly, but irrelevantly – that it was a crime in New York to be in the business of receiving money for transmission without a license.

This charge “likely misled” the jury “as to the scope of Section 1960,” and was not harmless error, since under the charge as given, “Bah’s defense at trial – that he received money in New York for transmission in New Jersey – amounted to a concession of guilt.”