AARO asks Ninth Circuit to hold that defendant's Bank Secrecy Act penalties are unconstitutionally excessive

Client(s) Association of Americans Resident Overseas

On behalf of the Association of Americans Resident Overseas (“AARO”), Jones Day filed an amicus brief in the U.S. Court of Appeals for the Ninth Circuit to support a defendant's Eighth Amendment challenge to crippling civil penalties under the Bank Secrecy Act. The Act requires Americans with foreign accounts exceeding $10,000 in the aggregate to report those accounts on a government form—and for “willfully” failing to file that form, provides for civil penalties of up to the greater of $100,000 or 50% of the unreported accounts’ balance. In the brief, AARO notes that courts have interpreted willfulness in this context to reach some persons who did not know about the filing requirement. AARO also explains that indeed many Americans are unaware of the filing requirement, and provides several examples of the government seeking six- and seven-figure civil penalties against individuals for “willfully” failing to file a form that they had no idea existed. That ignorance, the brief argues, is relevant to the Eighth Amendment Excessive Fines analysis, which turns on the culpability of the defendant and the gravity of the offense.

United States v. Saydam, No. 26-503 (9th Cir.)