N.J. Model Criminal Jury Charge, N.J.S.A. 2C:21-25a

Approved 6/15/09

FINANCIAL FACILITATION OF CRIMINAL ACTIVITY

[MONEY LAUNDERING]

(N.J.S.A. 2C:21-25a)

Count ____ of the Indictment charges the defendant with the crime of Financial Facilitation

of Criminal Activity. The Statute upon which this count of the Indictment is based reads as follows:

A person is guilty of a crime if the person transports or possesses

property known or which a reasonable person would believe to be

derived from criminal activity.

In order for you to find the defendant guilty of this charge, the State must prove each of the

following elements beyond a reasonable doubt:

1. The defendant knowingly transported or possessed property;

2. The defendant knew or a reasonable person would have believed that the property

was derived from criminal activity.

The first element the State must prove beyond a reasonable doubt is the defendant knowingly

transported or possessed property.

[If the defendant is not an individual person, charge the following]

First, a person means any corporation, unincorporated association or any other entity or

enterprise

1 which is capable of holding a legal or beneficial interest in property.2

[Charge in all cases]

Property means anything of value [choose appropriate phrases:], including real estate,

tangible and intangible personal property, trade secrets, contract rights, choses in action and other

interests in or claims to wealth, admission or transportation tickets, captured or domestic animals,

food and drink, electric, gas , steam or other power, financial instruments, informa tion, data and

computer software, in either human readable or computer readable form, copies or originals.

3

Property includes any benefit or interest without reduction for expenses incurred for acquisition,

1 Charge the definition of an enterprise, if appropriate: an enterprise includes any individual, sole

proprietorship, partnership, corporation, business trust, association, or other legal entity, and any union or

group of individuals associated in fact, alth ough not a legal entity, and it includes illicit as well as licit

enterprises and governmental as well as other entities. N.J.S.A. 2C:20-1q.

2 N.J.S.A. 2C:21-24.

3 N.J.S.A. 2C:20-1g.

FINANCIAL FACILITATION OF CRIMINAL ACTIVITY

N.J.S.A. 2C:21-25a

maintenance or any other purpose.4

To transport means to carry from one place to another.5

Possession means a conscious, knowing possession, either actual or constructive.

[CHARGE THE APPROPRIATE PARAGRAPHS]

Actual Possession

A person is in actual possession of an item when he/she first, knows what it is: that is, he/she

has knowledge of its character, and second, knowingly has it on his/her person at a given time.

Constructive Possession

Possession may be constructive instead of actual. As I just stated, a pers on who, with

knowledge of its character, knowingly has direct physical control over an item at a given time is in

actual possession of it.

Constructive possession means possession in which the possessor does not physically have

the item on his/her person but is aware that the item is present and is able to and has the intention to

exercise control over it. So, someone who has knowledge of the character of an item and knowingly

has both the power and the intention at a given time to exercise control over i t, either directly or

through another person or persons, is then in constructive possession of that item.

Joint Possession

Possession may be sole or joint. If one person alone has actual or constructive possession of

an item, possession is sole. If two or more persons share actual or constructive possession of an

item, possession is joint.

[Charge in all cases]

A person acts knowingly with respect to the nature of his/her conduct of the attendant

circumstances if he/she is aware that his/her conduct is of that nature, or that such circumstances

exist, or he/she is aware of the high probability of their existence. A person acts knowingly as to a

result of his/her conduct if he/she is aware that it is practically certain that that conduct will cause

such a result. Knowing, with knowledge, or equivalent terms have the same meaning.

Knowledge is a condition of the mind. It cannot be seen. It can only be determined by

4 N.J.S.A. 2C:21-24.

5 Webster’s New World New College Dictionary, Fourth Edition (2005).

FINANCIAL FACILITATION OF CRIMINAL ACTIVITY

N.J.S.A. 2C:21-25a

inferences from conduct, words or acts. Therefore, it is not necessary for the State to produce

witnesses to testify that a particular defendant stated, for example, that he/she acted with knowledge

when he/she had control over a part icular thing. It is within your power to find that proof of

knowledge has been furnished beyond a reasonable doubt by inference which may arise from the

nature of the acts and the surrounding circumstances.

The second element the State must prove beyond a reasonable doubt is that the defendant

knew or a reasonable person would have believed the property transported or possessed was derived

from criminal activity.

The term “derived from” means obtained directly or indirectly from, maintained by or

realized through.

6

For the purposes of this section, property is known to be derived from criminal activity if the

person knows that the property involved represents proceeds from some form, though not necessarily

which form, of criminal activity.

7

You may infer that the defendant had this requisite knowledge if you find the following:

(1) the property is transported or possessed in a fashion inconsistent with the ordinary or

usual means of transportation or possession of such property; and

(2) the property is discovered in the absence of any documentation or other indicia of

legitimate origin or right to such property.

8

An inference is a deduction of fact that may be drawn logically and reasonably from another

fact or group of facts established by the evidence. Whether or not an inference should be drawn is

for you to decide using your own common sense, knowledge and everyday experience. Ask

yourselves is it probable, logical and reasonable. However, you are never required or compelled to

draw an inference. You alone decide whether the facts and circumstances shown by the evidence

support an inference and you are always free to draw or not to draw an inference. If you draw an

inference, you should weigh it in connection with all the other evidence in the case, keeping in mind

that the burden of proof is upon the State to prove all the elements of the crime beyond a reasonable

6 N.J.S.A. 2C:21-24.

7 N.J.S.A. 2C:21-25d. See also State v. Harris, 373 N.J. Super. 253, 264, 265 (App. Div. 2004), certif.

denied, 183 N.J. 257 (2005).

8 N.J.S.A. 2C:21-26.

FINANCIAL FACILITATION OF CRIMINAL ACTIVITY

N.J.S.A. 2C:21-25a

doubt.9

If you find that the State has proven beyond a reasonable doubt each of these elements, then

you must find the defendant guilty. If, on the other hand, you find that the State has failed to prove

any one of these elements beyond a reasonable doubt, then you must find the defendant not guilty.

The State must prove the amount of the property involved beyond a reasonable doubt. If you

found the State has proven all the elements of the offense(s) charged beyond a reasonable doubt, then

you must indicate whether you find that the State has proven the amount of the property involved

beyond a reasonable doubt

[Choose appropriate]

(1) is $500,000.00 or more;

(2) is at least $75,000.00 but less than $500,000.00;

(3) is less than $75,000.00.

10

The State must prove beyond a reasonable doubt that the property involved has some value.

As I indicated to you previously, property means anything of value [choose appropriate

phrases:], including real estate, tangible and intangible personal property, trade secrets, contract

rights, choses in action and other interests in or claims to wealth, admission or transportation tickets,

captured or domestic ani mals, food and drink, electric, gas , steam or other power, financial

instruments, information, data and computer software, in either human readable or computer

readable form, copies or originals.

11 Property includes any benefit or interest without reduction for

expenses incurred for acquisition, maintenance or any other purpose.12

Value means the fair market value of the property at the time and place of the alleged

operative act.13 Fair market value is the price that a buyer would be willing to pay and a seller would

9 Presumably, the model charge entitled “Circumstantial Evidence” concerning direct and circumstantial

evidence should have already been charged.

10 N.J.S.A. 2C:21-27a. The jury should mark its selection on the verdict sheet. It is unclear how the

State is to proceed in the situation where the State is seeking to impose an anti-money laundering profiteering

penalty pursuant to N.J.S.A. 2C:21-27.2b and c; i.e., whether the jury has to determine the value of property

involved in order for the State to seek a penalty equal to three times that value given the fa ctors to be

considered pursuant to N.J.S.A. 2C:21-27.2c. For the penalty pursuant to N.J.S.A. 2C:21-27.2a, the jury will

have decided the degree of the crime by its verdict with regard to categories listed above.

11 N.J.S.A. 2C:20-1g.

12 N.J.S.A. 2C:21-24.

13 N.J.S.A. 2C:1-14m.

FINANCIAL FACILITATION OF CRIMINAL ACTIVITY

N.J.S.A. 2C:21-25a

be willing to accept if both parties were aware of all the relevant surrounding circumstances and

neither party were under any compulsion to buy or sell.

The State has the burden of proving the fair market value of the property involved. This

means the State must prove beyond a reasonable doubt that the property is worth what the State

claims it to be.

Amounts involved in transactions conducted pursuant to one scheme or course of conduct

may be aggregated in determining the amount involved.14

14 N.J.S.A. 2C:21-27a.