Anti-Money Laundering and U.S. Compliance
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1 Institute of International Bankers & Conference of State Bank Supervisors U.S. Regulatory/Compliance Orientation 2010 PATTON BOGGS LLP Anti-Money Laundering and U.S. Compliance New York City, New York November 27, 2012 Carol R. Van Cleef
2 Welcome to the US ING OFAC ($619 mil) National Bank of Abu Dhabi - OFAC ($855k) HSBC Senate Subcommittee on Permanent Investigations [$1.5 bil] Standard Chartered and NY DFS ($340 mil) MoneyGram DPA ($100 mil) 11/9 First FinCEN order ($15 mil) 11/19 2
3 Survival Guide What laws and regulations apply? What do they require me to do? Who is watching? What happens if I make a mistake? What do I have to look forward to? 3
4 The Regulatory Framework USA Patriot Act Bank Secrecy Act Federal Criminal Statutes Money Laundering (18 U.S.C. 1956, 1957) Terrorist Financing 18 U.S.C Fraud Enforcement and Recovery Act of 2009 OFAC Office of Foreign Assets Control State laws Asset forfeiture statutes Federal BSA/AML Examination Manuals Regulators guidance and enforcement actions 4
5 Bank Secrecy Act 40+ years old Paper Trail Investigations and prosecutions Tax evasion and financial crimes Recordkeeping and reporting Evolved - more substantive requirements 5
6 Bank Secrecy Act Reporting Currency Transaction Reports (CTRs) Suspicious Activity Reports (SARs) Report of Foreign Bank & Financial Accounts (FBARs) Cash and Monetary Instruments (CMIRs) Reporting Funds Transfer Rule (FTR) Cash Sale of Instruments Record Foreign Correspondent Accounts Special Measures 6
7 Bank Secrecy Act AML Compliance Program Customer Identification Program (CIP) Prohibits Shell Banks Enhanced Due Diligence Correspondent Accounts Private Banking Accounts/PEPS Special Measures Jurisdictions, Persons, Accounts Primary money laundering concern Recordkeeping/reporting/prohibition 7
8 USA Patriot Act Expanded BSA Recordkeeping and Reporting Mandatory AML Compliance Programs New Money Laundering Criminal Offenses Expanded Asset Forfeiture Powers Increased Civil and Criminal Penalties Revised OFAC Programs Information Sharing (Section 314) 8
9 USA Patriot Act Section 352 Mandatory AML Compliance Programs Section 326 Customer Identification Programs (CIP) Sections 312, 313 and 319 Shell Bank Prohibition and Due Diligence for Correspondent and Private Bank Accounts Section 314 Information Sharing Section 311 Treasury Special Measures Section Hour Rule Section 325 Concentration Accounts FBI can knock on any door at any time 9
10 Federal Criminal Statutes Money Laundering 18 U.S.C. Sections 1956 and 1957 Illegal to conduct or attempt to conduct any financial transaction involving the proceeds of any Specified Unlawful Activity ( SUA ) Illegal to transport, transfer or transmit (or attempt to do so) a monetary instrument or funds into or out of the United States knowing the instruments or funds involved are proceeds of any SUA Illegal to conduct or attempt to conduct a financial transaction with funds represented to be proceeds of any SUA ( sting offense ) 200+ predicate offenses (SUA) 10
11 Federal Criminal Statutes 18 U.S.C. Section 1960 Money transmitting business illegal Unlicensed Unregistered Transmission involving funds derived from or to be used for crime 11
12 Federal Criminal Statutes Terrorist Financing 18 U.S.C. Section 2339C Collecting or providing funds to be used to carry out a terrorist act 18 U.S.C. Section 2339B Providing material support or resources to designated terrorists or terrorist organizations 18 U.S.C. Section 2339A Providing material support to terrorist 12
13 Asset Forfeiture Civil in rem (against the property) action Property is defendant No criminal charge against owner is necessary. Criminal in personam (against the person) action Requires government to indict both defendant and property used or derived from crime along with defendant Money laundering -ancillary hearing for third parties to assert their interest in property order. Administrative forfeiture (19 U.S.C. 1607) in rem action permits federal seizing agency to forfeit property without judicial involvement. Does not exceed $500,000 in value 13
14 Fraud Enforcement and Recovery Act of 2009 (FERA) Mortgage lending business - financial institution in criminal code Financing and refinancing real estate-secured debt Includes subsidiaries Affects interstate or foreign commerce False statements in applications includes mortgage brokers and agents of MLBs Criminal provisions broadened to include TARP funds and other stimulus, recovery or rescue funding 14
15 15 Fraud Enforcement and Recovery Act of 2009 (FERA) Proceeds of criminal activity = property derived from or obtained or retained through unlawful activity Sense of Congress on limited use of 18 U.S.C 1956 and 1957 Additional funding to pursue financial crime Includes mortgage, securities and commodities and financial institution fraud Also frauds related to federal assistance and relief programs False Claims Act Financial Crisis Inquiry Commission Examine causes of current financial and economic crisis Criminal referrals a
16 Office of Foreign Assets Control Within U.S. Department of the Treasury Administers many programs General applicability Specific focus Foreign policy and national security objectives Executive Order No (September 23, 2001) List of Specifically Designated Nationals and Blocked Persons And much more 16
17 The More: OFAC Sanction Programs Iran Non-proliferation Syria Counter Terrorism Counter Narcotics Cuba Other (Yemen, Somalia, Libya etc.) 17
18 State Laws Criminal Money Laundering BSA Incorporated by reference Look-alike File BSA reports OFAC-like Asset forfeitures 18
19 The FFIEC BSA/AML Examination Manual Agent, Agency, Branch or Office within US Includes Foreign Banks Key Features Risk Assessment Customer Due Diligence Suspicious Activity Monitoring Transaction Testing Enterprise or Firm-wide compliance Greater Complexity to Compliance MSB manual modeled after Bank Manual 19
20 Consequences Regulatory criticism informal actions Public regulatory enforcement actions Cease and desist Affirmative action Prohibition orders Prosecutorial agreements plea, deferred, nonprosecution Fines/penalties/monetary settlement/forfeiture Imprisonment Death Penalty 20
21 Someone is Always Watching Federal and state bank regulators Foreign regulatory community Law Enforcement Federal, State and Local AND Foreign FBI, ICE, Secret Service, DEA Intelligence community US and Foreign Prosecutors federal, state, local Federal Trade Commission Criminals 21
22 Who s Who US Department of the Treasury FinCEN BSA rulemaking, enforcement OFAC all OFAC Office of Terrorism and Financial Intelligence IRS (Criminal and BSA) Examination Federal functional regulator (Fed, OCC, FDIC, SEC CFTC) State banking departments with MOUs Internal Revenue Service (IRS) Criminal DOJ (FBI, DEA, US Attorneys) DHS (ICE, Secret Service) State and local AGs 22
23 U.S. Department of Treasury Responsible for implementing Bank Secrecy Act (FinCEN) Issues special measures under Section 311 OFAC Assists Treasury Department in BSA rulemaking Suspicious Activity Reports Determines civil BSA violations and sanctions MOU with States Office of Terrorism and Financial Intelligence IRS Criminal Investigations of money laundering and criminal violations of BSA IRS BSA examinations Currently reviews MSBs, casinos, jewelry dealers, nonfederally insured credit unions, state banks, insurance companies Other entities without a principal federal regulator? 23
24 Treasury Office of Terrorism and Financial Intelligence 24
25 Department of Justice Criminal Division- US Attorneys prosecute Criminal violations upon referral Money laundering criminal violations Acts of terrorism & terrorist financing National Security Division Counter-Intelligence Office Joint Terrorism Task Forces (71) Drug Enforcement Administration Asset Forfeiture and Money Laundering Section 25
26 26
27 Department of Homeland Security Bureau of Immigration and Customs and Enforcement U.S. Secret Service Federal Law Enforcement Training Center Office of Counter-Narcotics Enforcement Operation Green Quest (OGQ) Multiple task forces 27
28 Federal Functional Regulators and Self Regulatory Organizations Participate in BSA rulemaking Examine for BSA and OFAC compliance Take enforcement actions (including monetary penalties for inadequate compliance procedures and violations of law) Make referrals State Regulators Examine for BSA and OFAC compliance Enforce state laws Take enforcement actions and make referrals 28
29 29
30 FinCEN Enforcement Actions ( ) Total Foreign Banks Nonbanks
31 The AML Compliance Program Adequate Cover all products and services Reflect risk Enterprise-wide Implemented Effective Detect and deter money laundering/terrorist financing Assure timely, accurate and complete CTR/SAR filings and BSA recordkeeping PATTON BOGGS LLP
32 FinCEN Enforcement Action Key elements NY branch of foreign bank OCC enforcement action in September 2006 $5 million civil money penalty (concurrent with OCC penalty) Allegedly failed to establish and implement adequate AML program reasonably designed to identify and report suspicious transactions Particularly focus - wire transfers, pouch activity, and U.S. dollar demand drafts Failed to file large number of SARS Deficiencies and transactions between 5/01/04 and 1/16/07 Considered total SARs filed through 1/09 Included potential transactions with terrorists 32
33 FinCEN Comptroller John C. Dugan:"Today's action signifies our ongoing commitment to the goals of the BSA, and will help ensure that all institutions remain vigilant in the fight against money laundering and other illicit activity." FinCEN Director James H. Freis, Jr: "Despite the current economic and resource challenges that many banks may face, Bank Secrecy Act (BSA) compliance efforts must not be diminished. 33
34 2010 Actions Wachovia - $160 million Department of Justice -$110 million forfeiture and DPA FinCEN concurrent $110 million civil money penalty OCC - $50 million civil money penalty and C&D New Jersey Thrift Department of Justice Plead guilty on one violation of BSA - $5 million forfeiture OTS - $5 million FinCEN -$1 million Eurobank, San Juan, Puerto Rico $25,000 but Announced several days after bank failed 34
35 2011 Actions Zions Casas de Cambio and Foreign Correspondent customers account relationship Lacked effective AML program for foreign correspondent business RDC, wires and staff Pacific National Bank Prior enforcement actions Repeat failures to implement effective program Longstanding systemic deficiencies Ocean Bank 28 percent of customers from Venezuela (PEPs, other high risk) Lacked internal controls adequate for risks (narcotics related ML) Frank Mendez former bank employee disclosed SAR 35
36 2012 New FinCEN Director First order First Bank of Delaware Small bank, big fine ($15 million) Third party processors Foreign customers of customers 36
37 The Challenges Financial Fraud Enforcement Task Force Joint Terrorism Task Forces SAR review teams 90+ nationwide Task Forces interagency Trade Finance Corruption foreign/domestic Government contractors Human Smuggling Forfeiture laws motivate and create leverage Compliance squeeze and whistleblower threat Congressional oversight and pressed agencies 37
38 Will your program ever good enough? 38
39 Managing BSA/AML/OFAC Compliance AML compliance remains regulatory priority Standard continues to move higher Attitude is critical Respect your regulatory relationship Understand it does not stop with regulators - keep your eye on rest of audience An adequate program is not enough Program must be effective More resources 39
40 Welcome to the US Changed environment Terrorism to fraud, narcotics, other financial crimes OCC has committed to do more State regulators are more engaged Enforcement actions rising Monetary penalties are higher than ever Treasury initiative to review BSA/AML Regulatory expectations continue to evolve 40
41 FURTHER INFORMATION Carol R. Van Cleef Partner Patton Boggs LLP 2550 M. Street, NW Washington, DC /
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