The illegal movement of cash and bearer negotiable instruments: Typologies and regulatory responses

Foreword | As part of global regulatory measures designed to minimise risks of money laundering and financing of terrorism, financial institutions and other designated businesses in most countries are required to report certain financial transactions to government regulators. This has increased the probability that transactions involving the proceeds of crime will be detected and reported officially. In order to avoid such detection, serious criminals may simply retain the proceeds of their crimes in cash or use bearer negotiable instruments in connection with their money laundering activities. Although not a new concern, the illegal movement of cash and bearer negotiable instruments across borders is likely to continue and although such movements are now regulated, criminals will continue to devise new strategies to circumvent regulatory controls. This paper explores the ways in which covert movements of currency and bearer negotiable instruments currently take place and reviews the regulatory measures that exist to address such activities in Australia. Increased detection and enforcement action, coupled with intensive data collection and analysis, are likely to be the most effective ways in which to address this way of laundering the proceeds of crime.

Adam Tomison

Director

Money laundering involves processing criminal profits to disguise their illegal origins. Australian law also defines the movement of money intended to be used for criminal purposes as money laundering. The Criminal Code Act 1995 defines receiving, possessing, concealing, disposing, importing or exporting criminally-linked money or other property as money laundering. ‘Physical currency’ is defined in s 5 of the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (Cth) (AML/CTF Act) as

the coin and printed money (whether of Australia or of a foreign country) that (a) is designated as legal tender; and (b) circulates as, and is customarily used and accepted as, a medium of exchange in the country of issue.

The introduction of extensive regulatory controls that require the reporting of certain financial transactions to government regulators has created an environment in which criminals who seek to engage in money laundering and financing of terrorism may try to avoid detection simply by moving undeclared physical currency across national borders (FATF 2010a). This problem is an example of so-called ‘crime displacement’ which has been defined as

[a] change in offender behaviour, along illegitimate means, which is designed to circumvent either a specific preventive measure or more general conditions unfavourable to the offender’s usual model of operating (Gabor 1990: 66).

In the present context, criminals may make a rational choice to avoid the risk of detection associated with depositing money into a bank account that may be subject to reporting, retain the proceeds of crime as physical currency and move cash across national borders covertly. This paper reviews anecdotal evidence of how criminals have sought to move cash and bearer negotiable instruments across national borders in connection with money laundering activities and the legislative and policy responses introduced to address the problem.

In Australia and a number of other developed countries, it is lawful to carry currency across national borders as long as large amounts of AUD$10,000 or more (or the foreign equivalent), are reported to customs authorities or the police. Similar reporting obligations apply to mailing or shipping currency of AUD$10,000 or more. If large cash movements are not disclosed, an offence is committed under ss 53 and 55 of the AML/CTF Act. In Australia, the penalty includes imprisonment for up to two years or a fine of up to AUD$55,000, or both. Enforcement action also includes the use of civil infringement notices which carry pecuniary penalties.

Individuals move cash across borders for a range of reasons, both legitimate and illegitimate. Cash can be taken to countries with weaker AML/CTF regimes, where it is easier to place money into the financial system without generating a record. Criminals can take cash abroad in order to pay for illicit services. Others might legitimately carry cash when visiting or travelling out of countries with cash-based economies.

Serious and organised criminals who often seek to launder many hundreds of thousands of dollars, may arguably see the risk of detection at air and sea ports as being lower than the risks associated with having proceeds of crime reported officially when transactions are undertaken at financial institutions (FATF 2010a: 18). Financial institutions are required to report significant cash transactions, suspicious transactions and all international wire transfers. This can leave an evidence trail. Use of the financial system can, however, provide instantaneous transfer around the globe and reduce the risk of the money being lost or stolen. In Australia, the Australian Crime Commission estimates that organised crime costs Australia in the order of $10 to $15b annually, mostly generated through the illicit drug market (ACC 2009). Walker (2007) found that the proceeds of illicit drug sales were most likely to result in cash income, as opposed to the proceeds of fraud which usually remain in the banking system. What is not known, however, is the amount of undeclared physical currency that may be moved across national borders each year.

How illegal movement takes place internationally

In recent years, a number of methods or typologies have been identified which describe ways in which attempts have been made to move currency covertly across national borders. Criminals have been found to employ the same concealment methods as used by those moving illicit commodities, such as narcotics. The following examples, which are predominately sourced from overseas, are presented as illustrative of the nature of the risks as well as to show the extremely large sums of money that criminals have sought to transport covertly across national borders.

Concealment in clothing/internally

A common strategy used by individuals wishing to transfer sometimes large amounts of currency across national borders is to conceal it in their clothing, or strap it to their body. In 2006, police at Bogota’s international airport arrested a man arriving on a flight from Mexico who had strapped US$748,000 in US$100 bills to his body inside a form-fitting Lycra girdle (Brodzinsky 2006).

In another case, a couple visiting Australia from Beijing were alleged to have attempted to bring more than AUD$100,000 in cash into Australia concealed inside the man’s jacket pocket and the woman’s handbag. Further cash was concealed in socks that were packed in carry-on baggage (ACS 2006).

Attempts have also been made to conceal currency internally, in the same way that drugs are smuggled across national borders. In one case in November 1991, a female Ghanaian immigrant, under interrogation by customs officers at the US John F Kennedy International Airport, acknowledged carrying US$9,000 in cash, but failed to disclose US$24,000 in small bank notes packed in sheets in her luggage, US$224,000 in US$100 cash rolls hidden in shampoo bottles and US$53,000 in small bags which she had swallowed and which were detected by x-rays of her stomach (Dupuis-Danon 2006: 56).

Accompanied luggage

Most passenger movements into and out of Australia take place via air travel, thus representing the path for cash smuggling most often detected here—unlike other countries where land and sea borders are used more often.

On 2 April 2009, for example, a man was arrested at Perth International Airport after an amount of AUD$72,464 was detected in his hand luggage and also hidden inside shoes in his checked-in baggage. It was alleged that he was planning to take the cash out of the country to ‘clean it’ by mixing it with funds from the sale of property overseas. On 26 June 2009, he was sentenced to eight months imprisonment with a non-parole period of four months in the Magistrates’ Court of Western Australia in Perth (CDPP 2009).

In another case, in 2007, a former Vietnam Airlines pilot was sentenced to four and a half years imprisonment with a non-parole period of two and a half years, for his involvement in a large-scale international cash smuggling operation in which he attempted to leave Sydney International Airport with over AUD$540,000 concealed in his cabin luggage. Between July 2005 and June 2006, it was alleged that the accused had smuggled proceeds of crime totalling AUD$6.5m out of Australia (ACC 2007).

The case highlights the risk of cash smuggling involving airline personnel whose position of trust has facilitated easier passage past border controls—an issue identified by the Asia-Pacific Group (APG) on Money Laundering (APG 2009). In Zimbabwe, for example, authorities at Victoria Falls International Airport recovered US$16,312 and R2,020 that was alleged to have belonged to six illegal foreign currency dealers who were attempting to transport the cash to Harare. Corrupt Civil Aviation Authority of Zimbabwe and Air Zimbabwe officers were allegedly involved in smuggling a bag containing the cash into the aircraft by bypassing airline screening procedures (‘Police bust Forex smuggling ring’ The Herald/All Africa Global Media via Comtex 7 March 2007).

Cargo consignments

In 2006, agents inside the cargo area at Mexico City’s airport discovered nearly US$7.8m in cash inside four boxes due to be loaded aboard a flight to Colombia (Brodzinsky 2006). However, not all cash smuggling takes place in connection with air travel. The heightened security procedures in place at airports due to terrorism concerns have meant that alternative routes may become more desirable for cash smugglers in the future.

Motor vehicles

In Europe and the United States, where national land borders are extensive, currency is often concealed within motor vehicles, or their parts. In one recent case, officers at a land border port were inspecting a truck and noticed that the airbag cover in the passenger side was loose. Officers removed the plastic cover to reveal a false compartment, which was found to be concealing bundles of currency worth US$165,000. In addition, the passenger of the vehicle was carrying a large quantity of currency on her person (FATF 2010b).

In another case, proceeds of alleged smuggling and sale of gold jewellery worth €750,000 were detected by Bulgarian customs officers in August 2007, concealed in 37 packages in special compartments in a car travelling through the southeastern Kapitan Andreevo checkpoint to Turkey (‘Bulgarian Customs Agents Make Record Money-Smuggling Bust’ Haaba 20 August 2007). Similar cases of smuggling across national borders in Europe and the Canada-United States and Mexican borders are frequently reported involving concealment in vehicles (individual cases may be viewed in the USCBP archives at http://www.cbp.gov/xp/cgov/newsroom/news_releases/archives/).

Postal deliveries

In 2010, the Financial Action Task Force (FATF) reported a case involving over US$200,000 cash that was discovered in an express outbound mail courier shipment destined for a business in a foreign country of concern. The business and its owner located in the destination country were ultimately identified as members of a known and designated Middle Eastern terrorist organisation (FATF 2010b).

Go-fast vessels

FATF has also observed an increase in the amount of bulk cash being transported by different organisations using so-called ‘go-fast’ vessels. This method could have some relevance to movements between Australia and its near neighbours in cases where relatively small distances are involved, suitable for speedboat traffic. In one case noted by FATF (2010b), US customs agents, in coordination with border protection authorities and air and marine authorities, interdicted two vessels travelling without navigation lights. A subsequent search of the vessels resulted in the discovery and seizure of approximately US$1.7m concealed within suitcases and the arrest of two individuals.

Bearer negotiable instruments

Bearer negotiable instruments (BNIs) are non-cash monetary instruments which may contain the instruction ‘pay to the bearer’. The bearer is the person in possession of the BNI. Because large quantities of cash are bulky and difficult to conceal, BNIs are occasionally used to transport funds across national borders. BNIs are defined in s 17 of the AML/CTF Act as cheques, promissory notes, traveller’s cheques, bearer bonds, money orders, postal orders and other negotiable instruments. These are also subject to reporting or disclosure requirements. In Australia, travellers entering or leaving the country must disclose to a customs or police officer, if asked, whether they are carrying BNIs, unlike in other countries which require mandatory declarations concerning BNIs.

In one case, for example, Italian authorities arrested a man who was trying to leave Italy on his way to Switzerland with a cheque made out for $US500m (AUD$558m). The man worked for a multinational company and sought to enter Switzerland in a luxury car belonging to his company. He failed to declare the cheque at the Italian border station of Ponte Chiasso and was arrested when the cheque was discovered during a routine search of the car (‘Italy Stops Man at Border with $558m’ Sydney Morning Herald 12 October 2007).

Stored value cards

Risks of money laundering also arise in connection with the movement of value associated with computer chip cards. Stored value cards (SVC) are now widely used for retail and other purchases and the limits of value that they can hold are increasing substantially. The Travelex Cash Passport card, for example, has a maximum card balance value at any one time of AUD$10,000, a maximum amount that can be loaded onto the card during any 12 month period of AUD$45,000 and a 24 hour ATM withdrawal limit of AUD$6,000 (Choo 2008: 3). Of course, most ATMs have lower daily withdrawal limits. Although SVC transactions fall within the definition of designated services under Australia’s AML/CTF Act, declarations of value held in connection with SVCs are not required at national borders under s 53 of the AML/CTF Act.

There are practical difficulties associated with customs authorities being able to determine the value held in connection with PIN-protected cards if travellers are unwilling to allow access to the cards or to disclose PINs. In the United States, there is some evidence of organised crime groups making use of SVCs to transport funds across national borders. In one case, the alleged mastermind of an international criminal group deposited money into several SVCs and sent six of the cards to Russia where his co-conspirators retrieved the money from ATMs (FinCEN 2007).

In another case in March 2007, six members of a criminal syndicate were arrested by the Gainesville Police Department in the United States in connection with the use of stolen credit cards to purchase large quantities of Wal-Mart and Sam’s Club gift cards. The purchased cards were then redeemed for merchandise such as computers, gaming devices and large-screen televisions, which were either sent overseas or resold and the proceeds remitted to third-party accounts minus a commission (USFDLE 2007).

Responses to cash smuggling

Responses to bulk cash smuggling have made use of the three main approaches to crime control:

• making it more difficult to act illegally;
• increasing the risk of getting caught; and
• reducing the rewards of offending.

The approach taken by the FATF in Recommendation IX of its Special Recommendations on Terrorist Financing (FATF 2004) is to ensure the effective detection of cross-border transportation of currency and BNIs and to use prosecution to deter those who fail to comply with border controls, including the confiscation of the proceeds of crime. Countries are able to comply with Special Recommendation IX by adopting a declaration system in which persons are required to proactively submit a truthful declaration to authorities about the amounts of currency or BNIs they are carrying, or by implementing a disclosure system in which persons are required to make a truthful disclosure to the authorities only upon request, or a mixture of the two (FATF 2010b). These systems can apply to all travellers, or only those carrying amounts in excess of a specified threshold. Declarations may be either written or oral.

The aim of the approach taken by FATF is to deter those who are seeking to launder the proceeds of crime or engage in financing of terrorist activities by increasing the likelihood that any currency or BNIs are detected at national border crossing points. Once detected, having made a false declaration or an untruthful disclosure can result in prosecution and associated confiscation proceedings.

FATF also encourages the imposition of a reverse burden of proof on the person carrying currency or BNIs across national borders by requiring the person to demonstrate the legitimate origin and destination of the currency or BNIs, failing which those funds may be stopped or restrained. It is assumed, therefore, that those engaging in money laundering or financing of terrorism will avoid trying to move currency or BNIs across national borders through fear of detection, imposition of sanctions and confiscation of the proceeds of their crimes (FATF 2010a).

In Australia, a declaration system is used in respect of currency of AUD$10,000 or more and a disclosure system for BNIs. In addition, other detection and enforcement activities are undertaken by the Australian Customs and Border Protection Service (ACBPS) and police. Some Australian jurisdictions, including the Commonwealth, also have so-called ‘unexplained wealth laws’ involving a reverse burden of proof which could be used in certain cases of currency that has been detected at borders (Bartels 2010).

Australian detection activities

A variety of detection activities aimed at locating illicit goods and bulk cash movements at air and sea ports are routinely undertaken by ACBPS officers. In 2008–09, ACBPS physically examined 15,835 sea cargo units (20 foot equivalent) and 39,595 air cargo consignments out of nearly 12 million air and sea cargo consignments that were processed during the year (ACBPS 2009; see Table 1). Although a relatively small proportion of total movements, inspections (which may include the use of x-rays and detector dogs) and the more rigorous examinations, are based on sophisticated use of intelligence and risk assessment procedures designed to ensure that high-risk items, including currency, are detected while not unduly interfering with legitimate cargo and mail movements.

In October 2008, ACBPS began conducting periodic campaigns focusing on particular border risks. One of the first campaigns focused on determining the extent of undeclared currency and BNIs being brought into the country by air by specific groups of passengers. In 2008–09, 605 passengers were subject to some level of ACBPS intervention leading to reports of BNIs totalling $454,270 and currency totalling $44,889 (ACBPS 2009).

In addition, in 2008, a pilot program was undertaken by the AFP to train dogs to detect concealed Australian and foreign currency. This initiative has been highly successful, with the graduate canine team contributing to seizures approaching AUD$1m for state police agencies and the AFP. Based on this success, national AFP canine police handlers have been equipped with additional canines trained to detect both currency and drugs. The first eight of these handlers and canines graduated in June 2009 (AFP 2009).

Declarations and disclosures

Australia’s AML/CTF Act includes an obligation on travellers leaving or coming into Australia and people mailing or shipping currency overseas worth AUD$10,000 or more (or the foreign currency equivalent) to declare this to a customs officer, a police officer or directly to the Australian Transaction Reports and Analysis Centre (AUSTRAC). Commercial goods carriers, knowingly carrying currency above the threshold, must also declare this fact. In addition, since December 2006, travellers carrying BNIs may be asked to complete a report concerning their movement of the BNI if asked by a police or customs officer. The information from all of these reports is then sent to AUSTRAC where it may be used for financial intelligence and law enforcement purposes.

In 2008–09, 38,669 reports of cross-border movements of physical currency were made to AUSTRAC. Figures for international currency transfer reports from 1997 to 2006 and cross-border movements of physical currency after December 2006 are presented in Figure 1. Between 1997–98 and 2006–07, the volume of international currency transfer/cross-border movements of physical currency reports fluctuated, with a mean number of reports of 25,405 being submitted each year over the decade. Since 2006–07, there has been an increase of 66 percent, from 23,351 in 2006–07 to 38,669 in 2008–09 (AUSTRAC 1997–2009).

The majority of international currency transfer/cross-border movements of currency reports received by AUSTRAC come from passenger declarations.

The number of these reports could be influenced by changes in the actual numbers of passengers entering and leaving Australia, the numbers moving currency of AUD$10,000 or more, increased advertising of reporting obligations, changes in the use of currency, or the extent to which accurate and reliable information is reported by passengers and others each year. Over the last decade, the number of international air and sea passengers arriving and departing from Australia has increased by 37 percent, from 17.7 million in 1999–2000 to 24.3 million in 2008–09 (ACBPS 1999–2009). Over this same period, the number of currency reports increased by 82 percent (AUSTRAC 1999–2009).

Figure 2 shows the number of reports made as a percentage of the number of passengers processed each year. It is apparent that, overall, there has been only a gradual increase in the proportion of passengers reporting, and that between 2001–02 and 2006–07, there was a general decline in the proportion of reports made. The decline may be due to increased use made by international travellers of electronic and card-based payment systems, while the increase since 2006–07 is most likely due to increased publicity by AUSTRAC and ACBPS on obligations of passengers to declare currency movements. The publicity afforded by recent television programs featuring ACBPS could also have a role to play in this.

Since the introduction of disclosure requirements for BNIs in December 2006, there has been a gradual increase in reports received by AUSTRAC. In 2007–08, the first full financial year during which reporting on BNIs was required, 1,479 reports were received. In 2008–09, this had increased by more than 10 percent to 1,635, probably due to increased activity by ACBPS officers and the use of electronic signage at airports (AUSTRAC 2009). Although substantial numbers of reports are made to AUSTRAC each year, information is not available on the proportion of these that may be indicative of illegal activities. Clearly, as is apparent from the cases cited above, some cross-border movements of large amounts of currency involve attempts to launder the proceeds of crime (AUSTRAC 2010).

Others, however, may be entirely legitimate movements of currency by students moving to Australia or business people who are carrying cash for work-related activities such as overseas purchases of inventory and stock in some sectors. Further research is required in order to determine exactly how much of the money reported is connected with illegal activities.

Source: ACBPS 2009: 26

Figure 1: International currency transfer/cross-border physical currency movement reports received by AUSTRAC, 1997–98 to 2008–09

Source: AUSTRAC 1997–2009

Enforcement

Individuals who fail to comply with mandatory disclosure and declaration requirements concerning the movement of currency and BNIs are liable to enforcement action through criminal prosecution or the use of civil Infringement notices which carry a pecuniary penalty. In 2008–09, a total of 203 infringement notices were issued, resulting in fines totalling $74,690 being imposed (AUSTRAC 2009).

In recent years, customs agencies in Europe have undertaken coordinated efforts to uncover and prosecute illegal currency movements. In September 2008, for example, operation Athena involved EU customs officers, as well as those in Tunisia, Norway, Morocco and Croatia, detecting €11m, which included one seizure of €8.7m in cash concealed in the luggage of a student waiting to board a flight at Frankfurt airport for the Middle East (‘$15 million Found in Student’s Luggage’ Sydney Morning Herald 29 September 2008). In Australia, increased focus on outward-bound currency, coupled with improved rates of prosecution and forfeiture, are likely to disrupt small-scale criminals and limit their ability to move to larger-scale activities.

Future research

Cross-border smuggling of currency and BNIs may not be as large a concern in Australia as it is in other parts of the world owing to the absence of land borders with other countries and the absence of an entrenched tradition of cash-based commerce. Nonetheless, in view of the enhanced regulatory measures that apply to the financial services sector, it is likely that criminals will continue to seek out opportunities to move cash and BNIs covertly into and out of Australia. Already, some large-scale detections have taken place in Australia.

Australia now has systems in place that satisfy FATF Special Recommendation IX and large numbers of reports of the movement of currency and BNIs are made to AUSTRAC each year. What is not known, however, are the circumstances underlying reported cases and the extent to which they relate to inadvertent non-compliance with disclosure requirements, attempts to transfer currency because of factors present in other countries which might make disclosure problematic for cultural or other reasons, or actual instances of attempted money laundering or financing of terrorism. With only 203 infringement notices being issued in 2008–09, it would be feasible to undertake an intensive analysis of the circumstances involved in these cases.

Research could also be undertaken to determine the circumstances in which detections are made by ACBPS officers at air and sea ports in Australia. This would help in the development of typologies and quantification of the extent of the problem.

Finally, information from customs agencies in other countries could be analysed to determine which cases of detected currency and BNI smuggling involved Australia as a destination country. It would then be possible to work with law enforcement in those countries to limit the opportunities for proceeds of crime to leave high-risk countries prior to their arrival in Australia.

Figure 2: International currency transfer/cross-border physical currency movement reports as a percentage of total passenger movements, 1999–00 to 2008–09

Sources: ACS 1999–2009; ACBPS 1999–2009; AUSTRAC 1994–2009

Acknowledgments

Additional research for this paper was undertaken by Weng Chin-Dahler, Research Officer at the AIC. The authors are grateful to staff of the Australian Customs and Border Protection Service and the Australian Transaction Reports and Analysis Centre for their assistance in preparing this paper.

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About the authors

Dr Russell G Smith is Principal Criminologist at the AIC

John Walker is CEO of Crime Trends Analysis, Queanbeyan, New South Wales