State v. Aitken

Morgan, J.

(concurring) — I agree with the majority. On the issue of whether the evidence supports the conviction for money laundering, however, my reasoning may be slightly different.

A person is guilty of money laundering when he or she conducts or attempts to conduct a financial transaction involving the proceeds of specified unlawful activity, and he or she knows the proceeds are the result of specified *902unlawful activity.4 RCW 9A.83.020(1). "Specified unlawful activity” includes issuing a bank check in violation of RCW 9A.56.060(1). RCW 9A.83.010(7); RCW 9A.82.010(14)(e). RCW 9A.56.060(1) provides in part:

Any person who shall with intent to defraud, make, or draw, or utter, or deliver to another person any check, or draft, on a bank or other depository for the payment of money, knowing at the time . . . that he has not sufficient funds in, or credit with said bank or other depository, to meet said check or draft. . . shall be guilty of unlawful issuance of bank check.

Thus, a person is guilty of money laundering if he or she conducts or attempts to conduct a financial transaction involving proceeds derived from an unlawfully issued bank check, with knowledge that the proceeds were so derived.

According to the record in this case, Aitken never obtained any funds as a result of unlawfully issuing the three checks drawn on the New Mexico bank.5 Thus, the *903State does not argue that he actually conducted a financial transaction involving the proceeds of an unlawfully issued bank check. Rather, it argues that he attempted to conduct a financial transaction involving such proceeds; that under the money laundering statute, his attempt is punishable in the same way as a completed crime; and thus that the evidence is sufficient to support conviction.6

Generally, a person is guilty of an attempt to commit a crime if, with intent to commit a specific crime, he or she does any act which is a substantial step toward the commission of that crime. RCW 9A.28.020(1). More specifically, a person attempts to launder the proceeds of an unlawfully issued bank check if he or she, with intent to commit money laundering, takes a substantial step toward conducting a financial transaction that involves proceeds derived from an unlawfully issued check, with knowledge that the proceeds were so derived. It follows that the question here is whether a person who has never obtained the proceeds of an unlawfully issued bank check can take a substantial step toward conducting a financial transaction that involves such proceeds.

The answer is no for several reasons. The first and most basic reason is the plain wording of the money laundering and attempt statutes. A person attempts money laundering only if he or she takes a "substantial step” toward *904completing a financial transaction that involves the proceeds of specified unlawful activity. A transaction cannot involve the proceeds of specified unlawful activity before such proceeds have been obtained. Thus, a person can neither attempt nor complete the crime of money laundering before he or she (or an accomplice) has obtained the proceeds of specified unlawful activity.

The second reason is legislative intent, as shown by legislative history. When the money laundering statute was before the Legislature, it was Second Substitute Senate Bill 5318. The final report on that bill states:

Money laundering occurs when a person manipulates the proceeds of some form of unlawful activity in order to conceal their criminal origin and make the proceeds appear legitimate.

1992 Final Legislative Report, supra, at 99 (emphasis added); Second Substitute Senate Bill 5318 enacted by Laws of 1992, ch. 210, § 2. A person can manipulate proceeds only after obtaining them. Thus, the Legislature intended liability for money laundering to attach after, but not before, a defendant obtains the proceeds of specified unlawful activity.

The third reason is the relationship between the money laundering statute and the theft statutes. In general terms, the purpose of the theft statutes, including the one proscribing unlawful issuance of bank checks, is to punish a defendant for unlawfully obtaining proceeds. See, e.g., RCW 9A.56.020-.080. In general terms, the purpose of the money laundering statute is to punish a defendant for manipulating such proceeds after obtaining them. The State’s position overlooks this difference in purpose.

Turning back to this case, Aitken took a substantial step toward a financial transaction when he presented the withdrawal slip to the bank teller. That transaction could not have involved the proceeds of specified unlawful activity, because Aitken had never obtained such proceeds. Thus, Aitken did not take a substantial step toward *905conducting a financial transaction that involved the proceeds of specified unlawful activity, and the evidence fails to support his conviction for money laundering.

According to the statute, knowledge that the proceeds result from specified unlawful activity can sometimes be supplanted by other types of knowledge. Those other types of knowledge, however, are not pertinent here. See RCW 9A.83.020d).

The prosecutor questioned a bank official as follows:

Q: And how much money was actually in the account as a result of any cleared or negotiable good checks?
A: Those were all uncollected funds.
Q: Which means they were all bad checks?
A: No, uncollected funds means that . . . the checks have not cleared and had time to come back from the bank in New Mexico to tell us whether they’re bad.
Q: Okay. At that time they were uncollected funds?
A: They were uncollected funds.
Q: Later they became what?
A: There were no funds on the 21st [the date on which Aitken presented the withdrawal slip].
Q: Okay.
A: They never had a chance to become collected.
*903Q: Were any of these checks good?
A: They were all returned to us insufficient funds.
Q: How much money was in the account on April 21st?
A: None.

Report of Proceedings at 91-92.

The State argues in its brief:

Because the crime of money laundering punishes the completed act and the attempt, it is of no consequence that the defendant did not actually obtain money. The offense is completed when the defendant attempts to [launder] money.

Br. of Resp’t at 20.