UNITED STATES of America, Plaintiff-Appellee, v. Don Bruce DUNCAN, Defendant-Appellant.
No. 80-1459.
United States Court of Appeals, Ninth Circuit.
Dec. 3, 1982.
Argued and Submitted April 7, 1981.
693 F.2d 971
Robert Mann, Mark Green, P.C., Los Angeles, Cal., for defendant-appellant.
Before FLETCHER and ALARCON, Circuit Judges and BURNS*, District Judge.
ALARCON, Circuit Judge:
Don Bruce Duncan, appellant, was convicted in a jury trial of making a false statement to Customs agents, in violation of
FACTS
At approximately 11:00 P.M. on April 3, 1980, United States Customs Special Agents Darryl M. Henry, Donald K. Shruhan, Jr. and C.K. Lauridsen were on assignment at Los Angeles International Airport. They were to survey and, if necessary, search departing passengers to ensure the compliance of international travelers with federal currency laws.
While observing passengers in the boarding area of Braniff Airlines Flight 923, to Bogota, Colombia, Agent Henry noticed Duncan. The agent, in his declaration submitted in opposition to Duncan‘s suppression motion, stated that Duncan did not “have the same demeanor as the other passengers and did not appear ... to be someone looking forward to a trip оut of the United States.” Henry also noticed that Duncan was traveling alone, not talking to others in the lounge, and that he appeared to be looking for someone. Agent Henry had eight years’ experience with Customs. He believed that appellant Duncan met the narcotics/currency violator profile used by Customs to identify potential offenders.
Henry pointed Duncan out to Lauridsen, who had also noticed Duncan‘s suspicious behavior. The agents decided to question Duncan before he boarded the plane.
When Lauridsen asked if Duncan had anything to report to Customs prior to his departure, Duncan said “No“. In response to inquiries about currency or monetary instruments, Duncan stated that “I know I have to report anything over $5,000, but I have only $5,000.” Lauridsen asked Duncan if he had any more currency and Duncan said “No.”
Lauridsen asked if he could examine Duncan‘s shoulder bag, and Duncan agreed. When the search produced nothing, Lauridsen asked to see the $5,000. Duncan produced the $5,000 from his jacket. He said that he was carrying no more currency. Agent Henry stated in his declaration that he “then asked Mr. Duncan if [he] could pat him down to check for additional currency, [Duncan] replied affirmatively.”
During the superficial pat-down search, Henry felt a hard object in Duncan‘s right rear pocket, which turned out to be an additional $5,000 in $100 bills.
At this point, the agents believed that Duncan had violated the Bank Secrecy Act,
When Henry asked Duncan why he had not reported the extra money to Customs, Duncan said he had recently filed his 1979 income tax return without reporting the $10,000 and that he was afraid of the Internal Revenue Service. Agent Henry then “asked Mr. Duncan if he wished me to retrieve his baggage from the aircraft. [Duncan] stated that he did and gave [Henry] his baggage claim checks....”
Agents Shruhan and Lauridsen accompanied Duncan to the Customs Office on the lower level of the airport. Lauridsen processed the seizure of Duncan‘s money. As he was checking Duncan‘s identification, he discovered approximately $1,200 in Duncan‘s wallet. Duncan said that he had forgotten about the extra money in his wallet.
When Henry returned with Duncan‘s suitcase, he asked Duncan if it was alright to search his luggage for additional currency or other merchandise. [Duncan] stated that it was. Henry found nothing in the suitcase. He then asked Duncan to remove his sweater and undershirt. Duncan did so, and surrenderеd a blue plastic money belt containing $10,000 to Henry.
Over $21,000 was recovered from Duncan. Three and one-half hours after the detention had begun, Duncan was given his Miranda warnings. He then made no further statements.
ISSUES
Duncan contends that there are several errors that require reversal of his conviction. He first contends that his conviction under
18 U.S.C. § 1001 COUNT
Duncan claims that his false statement to customs officials—that he knew the reporting requirement but was carrying only $5,000—cannot form the basis of an
1. Narrowly Drawn Statute
Duncan contends that
There is no reason that Duncan cannot be charged and convicted under
2. Materiality of Duncan‘s Response
Duncan contends that his statement—“I know I have to report anything over $5,000, but I have only $5,000“—is not material within the meaning of
Appellant‘s claim that his oral answer “No” was not a material statement is meritless. The test for determining the materiality of the falsification is whether it is: (1) one that could affect or influence the exercise of governmental functions; (2) does it have the natural tendency to influence or is it capable of influencing agency decision? ... Beyond question, the statement “No” could very well affect the exercise of governmental functions and agency decisions since it would have a tendency to prevent Customs from fulfilling their administrative duty to require persons entering the United States to file a currency reporting form in accordance with
31 U.S.C. § 1101 .” Id. at 561-62 (citations omitted.)
Carrier is not distinguishable from the instant case. The only difference in the two cases is that while Carrier was entering the United States, Duncan was leaving.5 In both instances Customs has a duty to enforce reporting laws, and in both instances, a false answer could impair Customs’ ability to function. We therefore find Duncan‘s statement to be material within the meaning of
3. “Exculpatory No” Exception
Duncan contends that his false statement that he had only $5,000 cannot be used to convict him under
STOP AND SEARCH
Duncan filed a pretrial suppression motion challenging the actions of customs officers at the airport on fourth and fifth amendment grounds. The trial court denied the suppression motion.
On appeal, Duncan argues that the stop and search as he was preparing to board his plane violates his fourth amendment rights because customs agents had no warrant and no probable cause.6 We find the search was valid as a border search.7
In this era of air travel, it is unreasonable to expect that persons can be searched at the exact moment they cross an international border. One will board a plane at a place within the interior borders of one country and not touch ground again until within the interior borders of a second country. Because of this, courts have recognized the validity of border searches at what are referred to as the “functional equivalent” of a border. See Almeida-Sanchez v. United States, 413 U.S. 266, 273, 93 S.Ct. 2535, 2539, 37 L.Ed.2d 596 (1973) (“a search of the passengers and cargo of an airplane arriving at a St. Louis airport after a nonstop flight from Mexico City would clearly be the functional equivalent of a border search“). See also United States v. Moore, 638 F.2d 1171, 1173 (9th Cir.1980).
Here Duncan was stopped while he was proceeding up the ramp to board a plane bound for Bogota, Colombia. We think that the point at which he was stopped was the “functional equivalent of a border.” See United States v. Cutaia, 511 F.Supp. 619, 625 (E.D.N.Y.1981) (search of passengers while waiting to board aircraft for international flight is a search at the border). To require that a passenger board a plane before allowing a customs stop is unreasonable. It is enough that the passenger manifest a definite commitment to leave the United States and that the search occur in reasonable temporal and spatial proximity to the departure. See id. Duncan, by checking his luggage, passing through the airline checkpoint, obtaining a boarding pass, and proceeding up the ramp had manifested a definite commitment to leave the country.
Since this was a search at a “border“, of a person leaving the country, there is no need for probable cause, warrants or even suspicion. United States v. Stanley, 545 F.2d at 665. See also United States v. Ajlouny, 629 F.2d 830, 834 n. 3 (2d Cir.1980), cert. denied, 449 U.S. 1111, 101 S.Ct. 920, 66 L.Ed.2d 840 (1981). Rather, the search comports with the fourth amendment unless it violates “reasonableness“. See United States v. Guadalupe-Garza, 421 F.2d 876, 878 (9th Cir.1970). Reasonableness, when used in the context of a border search, is “incapable of comprehensive definition or of mechanical aрplication....” Id. The scope of the intrusion, the manner of its conduct, and the justification for its initiation must all be considered in determining whether a search comports with reasonableness.
Moreover, there is no indication that the manner in which this search was conducted was unreasonable. The length of the search was no longer than necessary to ensure no laws were violated—although the stop eventually stretched to over three hours, most of this time was after agents had evidence Duncan had violated the law, and thus had cause to detain him. The search was conducted out of the public view, initially on a deserted boarding ramp and later in a room, thus ensuring that Duncan would not be embarrassed by the stop and search.
Duncan argues, however, that this search as he was leaving the United States is not reasonable because he did not have any notice that he was subject to a border search. He notes that searches while exiting the United States are not expected by travelers, and that the percentage of persons searched exiting is less than those searched entering. These searches, he claims, are particularly disruptive because of their novel and unexpected character. Duncan, however, has cited no authority to support his contention that notice is necessary. Even if notice is necessary, this court has held that a person exiting the United States has constructive notice that he or she is subject to search. In United States v. Stanley, 545 F.2d 661 (9th Cir.1976), this court upheld a border search of a boat leaving the United States. The Stanley court wrote, in upholding exiting searches, that “[a] person leaving the country belongs to a class whose members sometimes violate certain laws in leaving. On crossing a border, he is on notice that a search may be made....” Id. at 667 (emphasis added) (footnote omitted). We think it reasonable to conclude that a person, about to board a plane for a non-stop trip to a foreign country, is on notice that he or she is at the functional equivalent of an international border. It is at or before this point that a person is required to declare to customs that he or she is transporting certain items out of the United States, not at the point of actual border crossing.
Finally, we do not find any merit in Duncan‘s claim that the search is unreasonable because he was the only passenger stopped. As we noted above, customs agents have the power to make searches of exiting persons. However, the existenсe of this power does not require that it be exercised on all persons leaving the United States. There are many reasons, fiscal, administrative and others, why customs might not search all exiting individuals. Duncan does not argue that he was singled out for impermissible reasons.
MIRANDA
Duncan contends that admitting his statements to customs agents made after he was stopped and before he was given Miranda warnings constitutes reversible error.
Duncan‘s suppression claim centers on two statements. The first statement “I know I have to report anything over $5,000, but I have only $5,000” was made in response to an inquiry of whether Duncan had anything to report to customs. At the time this statement was made, the agents had no evidence that Duncan had committed a crime, nor any probable cause to arrest him for any crime.
The second statement, that Duncan had concealed the money to avoid problems with the IRS, was made after the agents discovered the second $5,000. The agents, at the time the second statement was made, had evidence of a crime,9 and probable cause to arrest for that crime.
This court has often considered the problem of Miranda warnings in the context of border searches. It is the rule of this Circuit “that Miranda warnings need not be given in border crossing situation ‘unless and until the questioning agents have probable cause to believe that the person questioned has committed an offense.‘” United States v. Estrada-Lucas, 651 F.2d 1261, 1265 (9th Cir.1980) (quoting Chavez-Martinez v. United States, 407 F.2d 535 (9th Cir.), cert. denied, 396 U.S. 858, 90 S.Ct. 124, 24 L.Ed.2d 109 (1969). See also United States v. Espericueta-Reyes, 631 F.2d 616, 621-22 (9th Cir.1980).
As we noted above, the agents here had no probable cause to believe Duncan committed an offense when he made the first statement, that he knew the reporting requirements but had only $5,000. Thus, there was no need for Miranda warnings at that time. It was not until later that the second $5,000, which provided the basis for the probable cause, was discovered.
When Duncan made the second statement, however, the agents had recovered $10,000 from Duncan, and they therefore had probable cause to believe Duncan had committed at least one offense. At the time the second $5,000 was recovеred, the officers were required by Miranda to advise Duncan of his constitutional rights.
We, however, will not reverse a conviction because of erroneous admission of statements made in violation of the defendant‘s Miranda rights if the admission of the statement was harmless beyond a reasonable doubt. United States v. Casimiro-Benitez, 533 F.2d 1121, 1124-25 (9th Cir.), cert. denied, 429 U.S. 926, 97 S.Ct. 329, 50 L.Ed.2d 295 (1976).
The admission of the statement referring to the IRS was harmless beyond a reasonable doubt. Duncan‘s false statement that he was carrying only $5,000, was properly admitted. That statement, combined with physical evidence obtained in the search of Duncan, provided sufficient independent evidence of guilt beyond a reasonable doubt.
REMAINING CONTENTIONS
Duncan‘s remaining contentions, that he was erroneously denied discovery, that the trial court erred in instructing the jury, that there was error in admitting prior consistent statements of agent Lauridsen, and that the court erred in restricting Duncan‘s presentation of evidence are without merit.
A. Discovery
Duncan contends that the trial court committed reversible error in denying his motions for discovery of the customs narcotics/currency violator profile and the customs enforcement standards. Duncan cites no authority to support his contentions and we have found none. We will not reverse a district court‘s discovery ruling unless there is a showing that the court abused its discretion, resulting in prejudice to the defendant‘s substantial rights. United States v. Arguelles, 594 F.2d 109, 112 (5th Cir.), cert. denied, 444 U.S. 860, 100 S.Ct. 124, 62 L.Ed.2d 81 (1979). Duncan has made no such showing.
B. Jury Instructions
The trial court instructed the jury that until proven otherwise everyone is presumed to know the requirements of the law. Duncan claims that the giving of this instruction was reversible error. We disagree.
On appeal, jury instructions must be reviewed as a whole to determine their legal sufficiency. United States v. Ponticelli, 622 F.2d 985, 990 (9th Cir.), cert. denied, 449 U.S. 1016, 101 S.Ct. 578, 66 L.Ed.2d 476 (1980). Here, the jury was instructed that Duncan had to knowingly and willfully make a false statement to government officials before they could find him in violation of
C. Agent Lauridsen‘s Prior Statements
Duncan claims that the court improperly admitted into evidence three “prior consistent statements” made by Agent Lauridsen. Lauridsen testified that Duncan had admitted knowing that he had to report currency in excess of $5,000 to Customs before leaving the country. The notes which Lauridsen made during his first official interview with Duncan did not include this admission. The government introduced Lauridsen‘s prior consistent statements to rebut the implication by Duncan‘s attorney on cross-examination that Lauridsen had fabricated Duncan‘s admission after the initial interview. Duncan argues that the statements were not exceptions to the hearsay rule because they did not meet the requirements of
The trial court has broad discretion regarding the admission of prior consistent statements. United States v. Mock, 640 F.2d 629, 632 (5th Cir.1981). In the present case, the government offered Lauridsen‘s prior consistent statements in an attempt to rehabilitate him as a witness. Under the circumstances, the admission of prior consistent statements was entirely appropriate. See United States v. Allen, 579 F.2d 531, 533 (9th Cir.), cert. denied, subnom. Mitchell v. United States, 439 U.S. 933, 99 S.Ct. 326, 58 L.Ed.2d 329 (1978). We find no error in the court‘s ruling.
D. Evidentiary Ruling
Similarly, the trial court has broad discretion in conducting a trial, including the exаmination of witnesses. See United States v. Salsedo, 607 F.2d 318, 321 (9th Cir.1979). See
The judgment is AFFIRMED.
FLETCHER, Circuit Judge, dissenting:
Because I disagree with two important aspects of the majority‘s opinion, I must respectfully dissent.
I. Legality of the Stop and Search of Duncan.
I find the majority‘s approach to the question of the legality of the stop and seizure in this case flawed in several respects.
In United States v. Williams, 617 F.2d 1063, 1074 (5th Cir.1980) (en banc), the Fifth Circuit discussed the correct procedure for inquiry concerning a search by federal officials. The court concluded that a search carried out by such officials in the absence of authority is unconstitutional per se. “[I]f the Government can point to no authority for a challenged search or seizure, a court must conclude, without any further consideration, that the search and seizure was unconstitutional.” Id.
The majority fails to acknowledge the need for some grant of authority before any federal search can be legal, and does not identify any authority for the search undertaken here. Although it correctly cites Williams for the proposition that “the source of authority for a seizure or search need not be statutory,” at 977 n. 7, the majority is wrong in reading the statement to mean that no authority is required. Williams was a case that involved a question concerning the propriety of the Cоast Guard‘s warrantless search of a Panamanian-registered vessel in international waters. 617 F.2d at 1070-71. The statement quoted by the majority was plainly premised upon Supreme Court dicta in Ramsey to the effect that under some circumstances, authority for searches may be derived from inherent Executive authority. The factual context of Williams reveals that the type of Executive authority referred to was the President‘s plenary power to conduct foreign affairs.1 The status of the Executive as the nation‘s sole representative in foreign affairs has long been held to justify Executive action where international relations are concerned even without statutory authority. See United States v. Curtiss-Wright Corp., 299 U.S. 304, 320, 57 S.Ct. 216, 221, 81 L.Ed. 255 (1936). Under the facts of the present case, involving a search of an American citizen as he leaves the United States, there can be no plausible claim that the Customs Service acted pursuant to the Executive‘s authority over international affairs, nor does the majority attempt any such justification.2
Any power to conduct the search involved in the present case must be derived from
If the Secretary [of the Treasury] has reason to believe that monetary instruments are in the process of transportation and with respect to which a report filed under section 1101 of this title [requiring disclosure of currency in excess of $5,000] has not been filed or contains material omissions or misstatements, he may apply to any court of competent jurisdiction for a search warrant. Upon a showing of probable cause, the court may issue a warrant authorizing the search of—
(1) One or more designated persons.
On its face, this provision plainly requires federal officials, including Customs agents, to obtain a warrant based on probable cause prior to conducting any seаrch of a suspected currency carrier. It is arguable that section 1105(b), which states that “[t]his section is not in derogation of the authority of the Secretary under any other law,” may affect this conclusion. However, as noted above, there is no “other law” that specifically authorizes the Customs Service to search outgoing travelers upon less than probable cause.4 In the absence of such specific statutory authority, a section 1105(a) warrant is required in order to search an outbound traveler for the purpose of discovering undeclared currency.
The bill considered by the committee contained a provision, the enforcement of which would have required the opening of mail and searсhes of individuals leaving the United States. The committee wisely amended this provision to require that a search warrant be secured before any search could take place, thus protecting tourists and other travelers from unnecessary invasion of personal privacy. S.Rep. No. 1139, 91st Cong., 2d Sess. 19 (1970) (supplemental views of Senators Bennett, Tower, Goodell, and Packwood).6
This passage demonstrates that the senators who drafted section 1105 did not believe that persons leaving the country could be subjected to random warrantless searches under existing law, and intended to require search warrants for searches of outgoing travelers suspected of currency violations. The majority therefore commits a serious error when it concludes that the Customs Service is authorized to search departing travelers.7
The border search exception is founded upon certain peculiar attributes of such searches. As noted above, the Supreme Court has explained that warrantless border searches may lawfully be made “pursuant to the longstanding right of the sovereign to protect itself by stopping and examining persons and property crossing into this country.” United States v. Ramsey, 431 U.S. 606, 616, 97 S.Ct. 1972, 1978, 52 L.Ed.2d 617 (1977). Warrantless searches conducted at established customs search areas and border checkpoints are also deemed consistent with the fourth amendment in part because travelers have notice of the checkpoint and its location; the stops and searches have the appearance of being regular and authorized; officers in the field are not exercising unfettered discretion in deciding who is to be stopped; and the element of embarrassment and humiliation present in random individual stops is absent. Compare United States v. Martinez-Fuerte, 428 U.S. 543, 549, 96 S.Ct. 3074, 3079, 49 L.Ed.2d 1116 (1976) (stops at fixed checkpoints require no cause) with United States v. Brignoni-Ponce, 422 U.S. 873, 881-82, 95 S.Ct. 2574, 2580-81, 45 L.Ed.2d 607 (1975) (reasonable and articulable suspicion required to justify “roving patrol” stops near border). See also Delaware v. Prouse, 440 U.S. 648, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979) (random stops of motorists without cause violate fourth amendment); International Ladies’ Garment Workers v. Sureck, 681 F.2d 624, 640-41 (9th Cir.1982) (discussing similar issue).
None of these considerations underlying the constitutionality of warrantless border searches applies to the search involved in the present case. As the court in Ramsey itself recognized, the sovereign prerogative of defense applies only to justify scrutiny of incoming travelers, not of departing ones. Further, there was no limit on the discretion of the Customs agents as to when and where they might perform the currency search involved here. Nothing in the record of this case indicates that such stops are routine or expected. Duncan was singled out solely on the basis of his supposedly suspicious appearance, and there was no visible or regularized checkpoint at which he could know he might be stopped. Thus, the argument that a warrantless search is permissible at a border or its “functional equivalent” because a traveler has notice that he may be searched certainly does not apply to the present case. I need not decide whether or under what circumstances departing travelers can be searched upon less than probable cause, to conclude that the search method chosen by the Customs Service in this case is inconsistent with the fourth amendment.8 On both statutory and constitutional grounds, I would rule that the stop of Duncan was illegal and that the statements obtained from him as a fruit of that stop should have been suppressed.
18 U.S.C. § 1001 .
I also disagree with the majority‘s conclusion that
The statute was not intended to embrace oral, unsworn statements, unrelated to any claim of the declarant to a privilege from the United States or to a claim against the United States, given in response to inquiries initiated by a federal agency or department, except, perhaps where such a statement will substantially impair the basic functions entrusted by law to that agency....
Therefore, Bedore‘s false statement of identity given to [the federal officer] is outside the scope of section 1001. 455 F.2d at 1111 (citations omitted).
Bedore requires a more thorough examination of the applicability of section 1001 than the majority has undertaken.
Plainly, the statements used to convict Duncan in this case did not threaten to “substantially impair the basic functions entrusted by law” to the Customs Service. The Customs Service did not rely in any way upon the contents of the statements in question. Cf. Bedore, 455 F.2d at 1111 (“Typical of the kind of statements that are within the purview of section 1001 are false reports that may engender groundless federal investigations.“). Rather, Duncan‘s statements were elicited in response to formal questions preceding a search that the agents evidently intended to perform no matter what the response.
The structure of the Currency Reporting Act strongly suggests that Congress did not believe or intend that section 1001 apply to punish false declarations regarding currency.
The only conceivable, but basically implausible, reason why Congress might have created the lesser penalty and still intended some play for section 1001, would be that Congress intended to distinguish between a simple failure to report and a currency reporting violation that is accompanied by affirmative misrepresentations, allowing punishment of the latter much more harshly than a “mere” failure to report.11 This hypothesis finds no support in the legislative history, however, and is conclusively refuted by the existence of
Legislation had been sought by the Secretary of the Interior to aid the enforcement of laws relating to the functions of the Department of the Interior and, in particular, to the enforcement of regulations under § 9(c) of the National Industrial Recovery Act of 1933 with respect to the transportation of ‘hot oil.’ The Secretary‘s effort was due, as he stated, to the lack of a law under which prosecutions might be had ‘for the presentation of false papers.’
312 U.S. at 93-94, 61 S.Ct. at 522-23.
In the present case, by contrast, Congress cannot be said to have intended section 1001 as a sanction for the currency reporting statutes. Also, it is important that the false statements at issue in Gilliland were contained in written documents filed with the Government, unlikе the oral, unsworn statements involved in Bedore and the present case. The Gilliland decision was premised on the view that section 1001 is basically intended to apply only to “false and fraudulent papers,” including “affidavits, documents, etc.” 312 U.S. at 95, 96, 61 S.Ct. at 523, 524. Gilliland therefore is not inconsistent with the view I take in the present case, based on Bedore, that the oral statements of the appellant relating to excess undeclared currency are not within the purview of
Given this background—a statute that is not unambiguous in its terms and that if applied here would render a wide range of conduct violative of federal law, a legislative history that fails to evidence congressional awareness of the statute‘s claimed scope, and a subject matter that traditionally has been regulated by state law—we believe that a narrow interpretation of 1014 would be consistent with our usual approach to criminal statutes.
I believe a similar interpretive approach should be taken in the present case.
ALARCON
CIRCUIT JUDGE