as to the legitimate sources and the nine purposes of the funds that they were taking out of the country evidence from which a reasonable jury might have concluded that the tall ends had no motive to violate the currency laws thus negating the turn first of all to the court's attention with the bulk cash smuggling offense and the instructions given by the court to the jury as to the elements of those offense we said that this morning that there were three primary defects in these instructions the first was that if the fifty three thirty two must be cross read with fifty three twenty two in the in the  reason is is that fifty three twenty two applies to all of them says in the subchapter and fifty three thirty two is codified in the subchapter fifty three twenty two requires a willfulness element in addition to knowing in intent elements in fifty three thirty two now it's the government's position in their briefs that no cross reference back to fifty three twenty two is required because fifty three thirty two the bulk cash smuggling statute contains its own penalty provision there's only one problem with this argument your honour's and that is that the three thirty two does not contain a fine provision in order to find the towing ends for this offense they must cross reference back to fifty different in character than intent or not much element of the crime so when the district court failed to properly cross read fifty three thirty two with fifty three twenty two and omitted the willfulness element of this offense it worked three thirty two the statute by the way is reprinted in the blue brief at page thirty one and i feel i confessed to the court this morning a bit like a return to junior high or elementary  because this statute in north and that the grammar of the statute and consequently the elements of the statute has to be understood through a series of elements the statute says that whoever and here's the first essentially element of the crime with the intent to evade a currency reporting requirement and the next knowingly so the knowing element is contained along with the intent element and then this actually goes on to speak to conceal more than ten thousand dollars in currency and then there are some subclauses after that and these go on for a few lines and then there's a comma and that's and then says and transports the currency when you break down the statute into its component elements the statute essentially requires an intent to where they unknowing state of mind concealment and a transportation our submission to the district court and this is fully captured not only in the conflicting jury instructions but in a very detailed colloquy before the district court before instructions was that the act of knowing concealment of cash has to be done in causal and temporal nexus with the intent to are they the currency reporting requirements or to be put in plain english the jury must have found that the tolling ins had an intent to invade the reporting requirements at the time of the concealment of the currency why is this significant because is well aware fifty three thirty two and the reporting offense in fifty three sixteen reaches what is otherwise completely innocent behavior taking currency out of the country indeed concealing currency in an attempt to export it out the country is otherwise completely innocent behavior it is only criminalized if it is done in conjunction with a knowing and willful intent to invade the currency reporting laws element should be read in terms of the provision that it's closest to we submit here that in terms of a proper reading of the statute that the knowing intent must be formed in relation to the concealment in fact we think based on the grammar it has to be both relation to concealment and transportation the district court judge wilson found it related only transportation our submission is that we would submit the statute is clear grammatically it's clear in view of occurred at home when one is packing one's luggage or at the airport when one checks of what the sky kava brings it into the transportation security administration area i think it least in the facts of this case is not enough if that shown at the end of the chain and i don't believe according to the congressional findings but that's what congress intended in legislating this offense there is one last defect in the statute and that is when travelling is for a pouch around the neck because it avoids being mugged or having to turn out one's pockets i don't think there's anything peculiar about that the point i'm making is that the only thing that distinguishes these two offenses is the act of concealment now in a border search area context as as we understand certainly from this morning no one is going to be carrying currency in in the open in a border situation so by definition virtually anyone in the airport at that moment would be concealing currency our point is a very modest one in this regard about the possible merger of these two with and says a very simple corrective instruction was offered to the district court which was simply that the jury be reminded that a conviction for failure to report was not necessarily the same as a failure or engaging in the criminal conduct of bulk cash smuggling a very simple struction judge wilson acknowledged that there i want to save some time to speak about the exclusion of the evidence about the source and purpose of funds the district court ruled that this evidence as to be entirely legitimate source and purpose of the funds was irrelevant and made  defendant may use motive evidence to negate intent we believe a reasonable jury that heard the evidence as to the legitimate source and more importantly to legitimate purpose of these fun no motivation whatsoever to evade the currency reporting requirements and jury duty here's some evidence about the money use ultimate destination it was well the evidence that was with the can we start with a yes or no i'm sorry  east that there were more mentions of the geographic destination of the currency then its intended purpose there was one mention that i believe you in the record less issue with that because we think it's more probative for the jury to have understood that the purposes the ultimate purposes of the funds were were beneficial let me make one last point and obviously all that is that stake at this juncture is supreme court's words not mine between the fine and the injury suffered by the government that was not before interior and secondly that the death then dance quote help ability relative to other potential violators of the reporting provision close quote the analyzed as well and here we have very clearly congress intent in legislating the ball past muddling statute congressional findings one in three of the statute very clearly articulate that th statute is intended to target those criminal enterprises that are engaged in the movement of currency across borders the the statute with first since the clay to drug smugglers it refers specifically to terrorism excessive the budget caging decision does not essentially waive the rest of the proportionality analysis what i mentioned before the are that the correlation between the fine and the injury suffered by the government and the defendant's culpability in relation to other  as as defense counsel stated before as whoever with the intent to evade the currency requirement knowingly conceals and attempts to transport is the person violates the statute the government's view is that the intent to evade provision that cla modifies whoever the furry first word in the sense and whoever applies to both of the other elements so in other words the person who violates the statute at the time that they conceal at the time that they transport has to have the requisite inten the i wanted to respond in kind to each of the defendant's arguments with respect to the additional elements the defense first argues that there has to be a willfulness element read into the statute by reference to the catchall penalty provision located in section fifty three twenty two a the government does not believe that that particular provision applies here while certainly we agree that the ball cashed actually is in the same subchapter in this case congress recidivist provision as well that if you can back convict the crime under certain circumstances you do it again it also bumps up the statutory maximum it seems very unlikely in the government's view that congress would attempt to incorporate a willfulness element by reference by cross reference to a catch all penalty provision when the statute that actually is being enacted has its own penalty provision and so the government does not believe that that is what congress was intending at all moreover to the extent that wil defined as a deliberate and knowing violation of a known duty of law the book cash statute has its own willfulness requirement insofar as it does require knowledge of the concealment of the money and intent to evade the intent reporting or the currency reporting requirement so it does in itself incorporate a willfulness requirement not necessarily the same one by reference to the castle provision but that the government doesn't leave the vat references at all what congress intend we'd also like to point out that the defense did not propose any sort of willfulness instruction to the district court when you look at the proposed instructions in the discussion that aspect of the requests that they're making on appeal was not raised to the district court which is why we don't have any discussion in the district courts detailed order about that now turning to the the main thrust of their arguments respecting the instruction and i want to pick up on a point that the court raised earlier the government's view is that concealment is an ongoing act that it's not just the time of initial concealment that matters but the time of ultimate concealment that is what distinguishes innocent conduct from the conduct that's prohibited by the bulk cash statute a person has to be transporting and concealing keeping that money away from from others with the intent to evade w congress intended for the intent to evade to exist only at the time of initial concealment it could have used the term and mitchell in describing c m n or could have may conceal pass test for said whoever was intent concealed and transport but it didn't choose to do so considered concealment if it only referred to the point of initial concealment there's no need to talk about carrying or wearing it because typically when you're shoveling money in a backpack or in a pouch are not necessarily carrying or wearing it at that time the government's greatest concern with the defense's temp congress is trying to get at here however the construction that they would urge this court to adopt would prevent congress from reaching that type of conduct as to these core targets and here's why it's in fact true that you only have to have the away has the intent to evade at the time that they are packing away but then they hand it off to a courier who has no intent whatsoever with respect to the initial concealment because they were engaged in that concealment that's the case they go about their business they travel there immune from prosecution because they didn't have any intent of the time of initial concealment and the packers army because they never transported the government believes that this sort of commonsense likelihood if this is a construction is put upon the statute with prevent the statute from reaching record conduct the one of their point about their canon of answers you can bring to the last antecedent again the government believes that it doesn't work with respect to the with intent to evade clause because that refers to whoever and in fact that clause in fact the  is just the phrase whoever and whoever actually goes to the other two elements the last of the government does not believe there's any sort of merger of offenses between this case and the currency reporting case currency reporting statute this is only because each of them has an element that the other one does not under the block or task that is distinguishes it and protect it from any sort of double jeopardy challenge even if there is a substantial overlap and proof so the government does not believe that these two offenses will collapse or that the book cash that it's going to reach to the ultimate purpose of this money did come in the evidence i think it's an excerpt of record one thirty four is where the government elicited through its one thirty three and one thirty four and the defense argued again an ex argued more broadly that the government does not believe that there was an abuse of discretion in in the districts initial ruling excluding the seven as well it is true that there may be some circumstances under which bad motive evidence is relevant to show motive necessarily defeats any sort of intent or negates it in any sort of way in this case good motive as the supreme court has said in the cheek case is never a defense to a crime unto itself and here none of the elements of any of the offenses that were transportation with the intent to have me the requirement fifty three sixteen the currency reporting requirement statute places filled imitations on why the money's being smuggled and the very facts of this case tend to indicate that having a good motive doesn't necessarily mean you're not trying twain's persons they have the money broken up so that when they were asked to produce the money this is to twain had a role that contained exactly ten thousand dollars which was below the limit docketed twain had eight thousand dollars which was ready to hand over which was below the limit after that she would not be able to miss to be able to take her flight to paris that afternoon she said well they told me to wrote right down ten thousand dollars as a spontaneous statement all of those indicate that the defendants in this case notwithstanding the fact that they seem to have a good motive for this money were intending to evade the currency reporting requirement so the government doesn't believe that this evidence if it's relevant is much more than marginally relevant certainly doesn't rise to the level of an abuse of discretion and definitely doesn't rise to the level of a due statute a conviction of the currency reporting statute under the false statement statute and a conspiracy that all of those charges moreover the advisory guidelines range in this particular case was twenty one to twenty seven months in nearly every other case cite higher than in these other offenses and what the district court did as the record indicates is the district court said i'm not going to impose the twenty one to twenty seven months i'm going to d v all the way down to zero months and impose probation but that i feel there needs to be some sort that the district court felt was going to be a deterrent and was in lieu of incarceration and given the fact that that the district court was imposing a sentence that was in lieu of incarceration and was designed to be a deterrent given th defendant overall net wealth as indicated in the p s r that that decision by the district court was not due that did not impose any sort of fine that was excessive within the meaning of the eighth amendment the maximum guidelines fine in this case was fifty thousand dollars so the fine here was twice what the nason fine was as to each defendant but in most of the other cases cited by the defense and where there have been opinions the maximum fine was five thousand dollars and amounts forfeited was five ten fifteen twenty twenty five times that amount that's certainly not what we have here and we don't have the a ray of various convictions in this case which carry some form of moral culpability that simply book cash michael does not have so in light of all that the government before judge wilson that's not true if you read the colloquy that occurred in response to the proposed jury instructions and the excerpts of record from pages one forty nine to sixty four that is mentioned the possible interplay between those two i would simply repeat the point i made before and that is the willfulness element according to the supreme court and rocks law goes to wherever the defendant appreciated their conduct was on the awful that is what rots law says regarding  knowing and intent elements that already exist in fifty three thirty two go to different forms of state of mind of the defendant essentially what the government's proposing here is the homogenization of these elements which rosoff counsels is impermissible i listen with interest to mr i have stats argument regarding the suggestion that we're counseling an absurd result of a statute we do not intend such we do credits point that there are situations where you have packer's and couriers obviously that's not the situation here i'm troubled by his suggestion that the statute is properly read to encompass what he refers to as an ultimate concealment i don't find government would have that essentially that if concealment is proven at the act of discovery which is almost logical and necessary that it would be that the crime is complete i don't believe that is what congress intended and we don't have to speculate about that the congressional findings are conclusive on that as for the fine if i may be very quick with great respect to the government