Geoffrey S. Berman, the United States Attorney for the Southern District of New York, announced criminal charges against U.S. Bancorp (“USB”) consisting of two felony violations of the Bank Secrecy Act (“BSA”) by its subsidiary, U.S. Bank National Association (the “Bank”), the fifth largest bank in the United States, for willfully failing to have an adequate anti-money laundering program (“AML”) and willfully failing to file a suspicious activity report (“SAR”). The case is assigned to United States District Judge Lewis A. Kaplan. 

Mr. Berman also announced an agreement (the “Agreement”) under which USB agreed to accept responsibility for its conduct by stipulating to the accuracy of an extensive Statement of Facts, pay a $528 million penalty, and continue reforms of its BSA/AML compliance program. Assuming USB’s continued compliance with the Agreement, the Government has agreed to defer prosecution for a period of two years, after which time the Government will seek to dismiss the charges.  The Agreement is pending review by the Court.  The penalty shall be collected through the Bank’s forfeiture to the United States of $453 million in a civil forfeiture action also filed today, with the remaining $75 million satisfied by the Bank’s payment of a civil money penalty assessed by the Office of the Comptroller of the Currency (the “OCC”).

U.S. Attorney Geoffrey S. Berman stated:  “U.S. Bank’s AML program was highly inadequate.  The Bank operated the program ‘on the cheap’ by restricting headcount and other compliance resources, and then imposed hard caps on the number of transactions subject to AML review in order to create the appearance that the program was operating properly.  The Bank also concealed its wrongful approach from the OCC.  As a result, U.S Bank failed to detect and investigate large numbers of suspicious transactions.  With today’s resolution, the Bank has accepted responsibility for its criminal conduct and committed to completing the reform of its AML program.”

The OCC, the Financial Crimes Enforcement Network (“FinCEN”), and the Board of Governors of the Federal Reserve System (”FRB”) have also reached agreements with the Bank to resolve related regulatory actions.  For purposes of its action, which was also filed today, FinCEN is represented by this Office’s Civil Division.  FinCEN’s agreement with the Bank requires the Bank to pay an additional $70 million for civil violations of the BSA, and it includes further admissions by the Bank, including that the Bank filed more than 5,000 currency transaction reports with incomplete and inaccurate information, which impeded law enforcement’s ability to identify and track potentially unlawful behavior.  FinCEN’s agreement with the Bank is pending review by the Court.

According to the documents filed today in Manhattan federal court:

USB’s Failure to Maintain an Adequate AML Program

From 2009 and continuing until 2014, USB willfully failed to establish, implement, and maintain an adequate AML program.  Among other things, USB capped the number of alerts generated by its transaction monitoring systems, basing the number of such alerts on staffing levels and resources, rather than setting thresholds for such alerts that corresponded to a transaction’s level of risk.  The Bank deliberately concealed this from the OCC, the Bank’s primary regulator. 

USB was well aware that these practices were improper, were resulting in the Bank missing substantial numbers of suspicious transactions, and were placing the Bank at risk of regulatory action.  Bank documentation from as early as 2005 acknowledged that alert limits were based on staffing levels and, as a result, a risk item for the bank.  For example, in a December 1, 2009,F memo from the Bank’s then AML Officer (the “AMLO”) to the then Chief Compliance Officer (the “CCO), the AMLO explained that while the Bank was experiencing significant increases in SAR volumes, the Bank’s staff was “stretched dangerously thin” and warned that a “regulator could very easily argue that this testing should lead to an increase in the number of queries worked.”  The Bank conducted below-threshold testing (“BTT”), which consisted of investigating a limited number of transactions that fell outside alert limits to see if thresholds should be adjusted so that more alerts would be investigated.  The Bank’s BTT regularly found that SARs should have been filed on more than 25 percent, and as much as 80 percent, of the tested transactions.  Rather than increase resources and lower thresholds to detect such suspicious activity, as repeatedly requested by the responsible AML employees, the Bank instead decided to stop conducting BTT altogether.

An OCC examiner assigned to the Bank repeatedly warned USB officials, including the AMLO, of the impropriety of managing the Bank’s monitoring programs based on the size of its staff and other resources.  Knowing that the OCC would find USB’s resource-driven alert limits to be improper, Bank officials, including the CCO, deliberately concealed these practices from the OCC.  For example, a Bank employee deliberately excluded references to resource limitations from the minutes of an internal Bank meeting for fear that the OCC would disapprove of the Bank’s practices, and in order to protect himself and his supervisor from adverse consequences.  Indeed, the AMLO described USB’s AML program to another senior manager as an effort to use “smoke and mirrors” to “pull the wool over the eyes” of the OCC.

USB also failed to monitor Western Union (“WU”) transactions involving non-customers of the Bank that took place at Bank branches.  The Bank processed WU transactions involving non-customers even though they would not be subject to the Bank’s transaction monitoring systems.  Even when Bank employees flagged specific non-customer transactions raising AML-related concerns, the transactions went uninvestigated.  It was not until July 1, 2014, that the Bank implemented a new policy that prohibited WU transactions by non-customers.

In the course of this investigation, the Bank analyzed the impact of its deficient monitoring practices.  For just the six months prior to taking steps to remedy the practices, the Bank’s analysis resulted in the generation of an additional 24,179 alerts and the filing of 2,121 SARs.

USB’s Failure to Timely File Suspicious Activity Reports Relating to Scott Tucker

From October 2011 through November 2013, the Bank willfully failed to timely report suspicious banking activities of Scott Tucker, its longtime customer, despite being on notice that Tucker had been using the Bank to launder proceeds from an illegal and fraudulent payday lending scheme using a series of sham bank accounts opened under the name of companies nominally owned by various Native American tribes (the “Tribal Companies”).  From 2008 through 2012, Tucker’s companies extended approximately five million loans to customers across the country, while generating more than $2 billion in revenues and hundreds of millions of dollars in profits.  Most of this money flowed through accounts that Tucker maintained at the Bank.

USB employees responsible for servicing Tucker’s ongoing account activity disregarded numerous red flags that Tucker was using the tribes to conceal his ownership of the accounts.  For example, Tucker spent large sums of monies from accounts in the names of Tribal Companies on personal items, including tens of millions of dollars on a vacation home in Aspen and on Tucker’s professional Ferrari racing team.  USB also received subpoenas from regulators investigating Tucker’s businesses.  In September 2011, after news organizations published reports examining Tucker’s history and questionable business practices, the Bank reviewed Tucker’s accounts, and an AML investigator reported to supervisors, among other things, that “it looks as though Mr. Tucker is quite the slippery individual” who “really does hide behind a bunch of shell companies.”  Based on its findings, the Bank closed the accounts in the names of the Tribal Companies but failed to file a SAR.

The Bank also left open Tucker’s non-tribal accounts and opened new ones, allowing over $176 million more from his illegal payday business to flow into the Bank.  Despite also learning of an April 2012 Federal Trade Commission lawsuit against Tucker and the Tribal Companies, the Bank did not file a SAR regarding Tucker until served with a subpoena by this Office in November 2013.

On October 13, 2017, Tucker was convicted in the United States District Court for the Southern District of New York of various offenses arising from his payday lending scheme.  The Government intends to recommend that the amounts forfeited by USB be distributed to victims of Tucker’s scheme, consistent with the applicable Department of Justice regulations, through the ongoing remission process.

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Mr. Berman praised the outstanding investigative work of the Special Agents at the United States Attorney’s Office and thanked the OCC for its assistance with the investigation.  Mr. Berman also thanked FinCEN for its partnership with this Office.

The prosecution is being handled by the Office’s Money Laundering and Asset Forfeiture Unit.  Assistant U.S. Attorneys Niketh Velamoor and Jonathan Cohen are in charge of the prosecution.  The Office’s Civil Frauds Unit is handling the regulatory action on behalf of FinCEN.  Assistant U.S. Attorneys Christopher Harwood and Caleb Hayes-Deats are in charge of the matter.