Defense counsel in
U.S. v. Rodriguez & Hill (the Samourai Wallet case) has just filed a
Brady letter disclosing that, six months before the 2024 Samourai indictment, prosecutors asked FinCEN whether Samourai’s non-custodial wallet and coinjoin software constituted “money transmission.”
FinCEN’s reply was an emphatic “no,” but prosecutors in the Southern District of New York nevertheless charged Keonne Rodriguez and William Hill with “Conspiracy to Operate an Unlicensed Money Transmitting Business,” subjecting the software developers to the prospect of years in prison. According to one of the prosecutors in the Samourai Wallet case, “[FinCEN guidance has generally focused on custody of cryptocurrency in the question of determining whether an entity is acting as a [MSB]. Because Samourai does not take ‘custody’ of the cryptocurrency by possessing the private keys to any addresses where the cryptocurrency is stored, that would strongly suggest that Samourai is NOT (emphasis in the original) acting as an MSB.”