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May.29, 2010, Source: New Jersey Law Journal

Two criminal defense lawyers are asking a federal court to declare unconstitutional New Jersey's money-laundering law, which they say uniquely criminalizes the mere possession of U.S. currency.

Glenn Cavanagh and Jon-Henry Barr seek to enjoin the start of a state court criminal trial set for June 11 in Middlesex County, arguing the New Jersey statutes, N.J.S.A. 2C:21-25(a) and -26, are unconstitutional and their clients face irreparable harm from the 20-year prison sentence they face if convicted.

The clients, Belarmino Amaya and Carlos Mejia, were charged with money laundering and conspiracy to money launder after state police pulled over their truck and found $1.24 million in two duffel bags. The money and the vehicle were confiscated.

Money-laundering cases typically include a companion count charging other criminal conduct, such as drug offenses, prostitution or fraud, the lawyers say, but New Jersey's statute is different. It criminalizes transporting or possessing "property known or which a reasonable person would believe to be derived from criminal activity."

It also provides that such knowledge "may be inferred where the property is transported or possessed in a fashion inconsistent with the ordinary or usual means of transportation or possession of such property and where the property is discovered in the absence of any documentation or other indicia of legitimate origin or right to such property."

Cavanagh says the law makes it a crime to carry large amounts of cash. "It's almost like requiring a license to possess currency," he says. "If it's legitimate to own, why do I have to prove where I got it and why I'm authorized to possess it?"

The federal money-laundering law has no comparable inference of knowledge language. It makes transporting money illegal if the intent is "to promote the carrying on of specified unlawful activity" or with knowledge that the funds represent the proceeds of crime and that their transport is designed to "conceal or disguise the nature, the location, the source, the ownership, or the control of the proceeds of specified unlawful activity" or transaction-reporting requirements.

Nor does any other state infer such knowledge, Cavanagh says, based on research by two law student interns into laws around the country, the results of which are attached to the lawyers' motion for a temporary restraining order, which is set to be argued June 7.

In opposing papers, Deputy Attorney General Jennifer Hsia says the relief should be denied because Amaya and Mejia have not shown a likelihood of success on the merits or irreparable harm. She also argues it is against the public interest to interfere with the prosecution of crime and urges the court to abstain under the doctrine of Younger v. Harris , 401 U.S. 37 (1971), so as not to interfere with state court proceedings.

The complaint in Amaya v. State of New Jersey, 10-cv-915, filed in Newark on Feb. 22, alleges that the money-laundering law violates the First, Fourth, Fifth, Sixth and 14th Amendments. It asks for a declaration that the law is unconstitutional, injunctive relief, return of the cash and truck, compensatory damages of at least $1 million, punitive damages, interest, costs and fees.

An amended complaint filed May 6 added a third plaintiff, identified only as R.H.K., allegedly a businessman who transports currency for a fee based on a handshake and without documentation, sometimes in or through New Jersey, which puts him at risk of money-laundering charges.

The defendants, Attorney General Paula Dow, Deputy Attorney General Philip Mogavero, who is prosecuting Amaya and Mejia, and the three state police officers involved in the motor vehicle stop, all represented by Hsia, have not yet filed an answer.

On April 5, the plaintiffs obtained an entry of default but U.S. District Judge Dickinson Debevoise vacated it on May 3 on Hsia's motion and denied the plaintiffs' motion for a default judgment.

In her motion, Hsia said the response to the complaint was delayed due to confusion over whether which division of the attorney general's office should handle the matter. By the time it was assigned to Hsia in the Division of Law, the time to answer had passed. Cavanaugh and Barr would not consent to drop the default though they later withdrew their opposition.

Cavanagh and Barr say the ACLU-NJ, Association of Criminal Defense Lawyers-New Jersey and the Institute for Justice, a Virginia-based property rights advocacy group, have expressed interest in coming in as amici but have not committed to doing so.

Amaya was transporting the money from New Jersey to California for a fee and was driving a truck owned by Mejia, who was with him, when they were stopped by officers from the state police Drug Trafficking North Unit, says Cavanagh, a Clark solo.

"I can't get over that this statute says that unless you can explain where and how you got this dough, that's dirty money."

Barr, of Barr & Canada in Clark, is the municipal prosecutor in that town and in Kenilworth. He is also president of the municipal prosecutors' association.