With Steve Bannon arraigned in New York County Supreme Court and his “We Build the Wall” indictment unsealed, along with the joint presser with District Attorney Alvin Bragg and NYS Attorney General Tish James, the public now has far more color into the Manhattan District Attorney’s case against former President Donald Trump’s Chief Strategist and his purported bilking of $15 million in contributions to erect a wall on our southern border with Mexico along with funneling north of $100,000 through his own not-for-profit to pay We Build the Wall, Inc.’s president. Now that the indictment is available, along with the overt acts that are the foundation of the Conspiracy to commit Money Laundering and Scheme to Defraud, what does this all mean for Bannon and We Build the Wall Inc.?
The We Build the Wall Scheme: What Purportedly Happened
Although the indictment spells out the overt acts and each offenses’ factual allegations, District Attorney Bragg contends that Bannon and his co-conspirators duped thousands of donors, including many Manhattan residents, out of $15 million through false pretenses and false promise that all of the contributions would go to the construction of wall, and “not a penny” to the president of We Build the Wall, Inc. This “not a penny” mantra, according to prosecutors, was used to solicit donations time and time again through numerous vehicles including traditional media, emails, social media posts and more.
Despite the above contentions, prosecutors claim that not only did the president receive some pennies, but he received in excess of $250,000 of which Bannon, who DA Bragg says was the architect of the fraud, personally laundered at least $140,000 through another business he controlled. In fact, the District Attorney claims, $10,000s were transferred at a time to this other not-for-profit to pay the president’s salary. These actions go to the heart of the alleged fraudulent scheme and laundering.
The Crimes: Money Laundering, Scheme to Defraud & Conspiracy
Neither Bannon nor We Build the Wall, Inc., are charged in New York County Supreme Court with First Degree Grand Larceny, a class “B” felony targeting thefts over $1 million and a crime punishable by mandatory incarceration up to eight and third to twenty five years. In fact, there are no larceny charges despite the alleged defrauding of $15 million dollars. Instead, Manhattan prosecutors pursued lesser charges – Money Laundering, Scheme to Defraud, and Conspiracy – and likely did so due to a lack of jurisdiction and ability to prosecute the purported scheme in its entirety. As such, DA Bragg secured an indictment for the following felony offenses:
Second Degree Money Laundering: Penal Law 470.15(1)(b)(i)(A)
From on or about February 4, 2019, to on or about October 10, 2019, Bannon and We Build the Wall, Inc., knowing that the property involved in one and more financial transactions (money donated to We Build The Wall, Inc. through a crowdfunding website) represented the proceeds of a Scheme to Defraud in the First Degree, conducted one and more such financial transactions, which in fact involved the proceeds of Scheme to Defraud in the First Degree, with intent to promote the carrying on of a Scheme to Defraud in the First Degree, and the total value of the property involved in such financial transaction and transactions exceeded one hundred thousand dollars.
Second Degree Money Laundering: Penal Law 470.15(1)(b)(ii)(A)
From on or about February 4, 2019, to on or about October 10, 2019, Bannon and We Build the Wall, Inc., knowing that the property involved in one and more financial transactions (money donated to We Build The Wall, Inc., through a crowdfunding website) represented the proceeds of a Scheme to Defraud in the First Degree, conducted one and more such financial transactions, which in fact involved the proceeds of Scheme to Defraud in the First Degree, knowing that the transaction and transactions in whole and in part were designed to conceal and disguise the nature, the location, the source, the ownership and the control of the property, and the total value of the property involved in such financial transaction and transactions exceeded one hundred thousand dollars.
Fourth Degree Conspiracy: Penal Law 105.10(1)
From on or about January 11, 2019, to on or about October 10, 2019, Bannon and We Build the Wall, Inc., with intent that conduct constituting a class C felony be performed (Second Degree Money Laundering), agreed with one and more persons to engage in and cause the performance of such conduct.
First Degree Scheme to Defraud: Penal Law 190.65.(1)(a)
From on or about January 11, 2019, to on or about December 31, 2019, Bannon and We Build the Wall, Inc., engaged in a scheme constituting an systematic ongoing course of conduct with intent to defraud ten and more persons and to obtain property from ten and more persons by false and fraudulent pretenses, representations, and promises, and so obtained property from one and more of such persons.
The Penalties: Incarceration & Fines
Second Degree Money Laundering
A class “C” felony punishable by no imprisonment to as long as five to fifteen years. This means that on the high end, Bannon would be eligible for parole at around five years but should he not be released, Bannon could remain in custody for up to the maximum or anywhere in between.
In addition to the possibility of being imprisoned, should prosecutors secure a conviction, New York Penal Law 470.25(1) allows a judge to fine Bannon up to but no greater than two times the value of the monetary instruments which are the proceeds of specified criminal activity, subject to certain factors set forth in the statute.
First Degree Scheme to Defraud & Fourth Degree Conspiracy
Class “E” felonies, these two offenses are punishable by no imprisonment to as long as one and a third to four years. Like the above calculations, Bannon would be eligible for parole at around sixteen months but could remain incarcerated the full four years.
Setting aside the class “E” felonies as well as the class “A” misdemeanor of Fifth Degree Conspiracy, Bannon’s real concern should be the Second Degree Money Laundering charges in terms of potential time “upstate” and fines.
Indicting a Corporation: Fines & Penal Law 80.10
Since an entity such as corporation or organization cannot be incarcerated, why would the District Attorney secure an indictment against We Build the Wall, Inc.? The answer is quite simple. The entity can plea or be found guilty of criminal wrongdoing and, therefore, face fines and financial sanctions.
New York Penal Law 80.10
Penal Law 80.10 allows courts to fine corporations up to $10,000.00 or, far more significantly, any greater amount as long as as it does not exceed twice the amount of the entity’s ill gotten gains from the commission of the crime. Here, according to the indictment and statements by DA Bragg, despite no charges of Grand Larceny, We Build the Wall, Inc., by way of First Degree Scheme to Defraud, peddled its lies to a tune of $15 million.
What’s Next: Time Motions & More
Whether this case ever gets to trial or not, before it reaches that stage in the criminal justice process Bannon’s counsel will file a motion to dismiss questioning the evidence presented to the Grand Jury. Further, it would come as no surprise if he tries to challenge the indictment on, among other things, double jeopardy grounds.
The case is next on October 4, 2022.
A blog entry drafted prior to the indictment’s unsealing and addressing Conspiracy and Scheme to Defraud, among other offenses that Bannon was not charged with, is available for additional information on the applicable crimes.
Jeremy Saland is a New York criminal lawyer and former Manhattan prosecutor representing clients throughout the New York City and lower Hudson Valley region.