UNITED STATES of America, Plaintiff-Appellant, v. Luis CARIBALLO-TAMAYO, Defendant-Appellee.
No. 87-5995
United States Court of Appeals, Eleventh Circuit
Feb. 16th, 1989
Rehearing and Rehearing In Banc Denied March 27, 1989.
865 F.2d 1179
We must note, however, that Gephart‘s defense of nonresponsibility failed, not as a matter of law, but as one of fact. The court in Gephart outlined matters of fact to be relied on in determining who is a responsible person:
Among the specific facts which courts have relied upon in determining whether individuals were persons responsible for the payment of taxes withheld from the wages of employees are: (1) the duties of the officer as outlined by the corporate by-laws; (2) the ability of the individual to sign checks of the corporation; (3) the identity of the officers, directors, and shareholders of the corporation; (4) the identity of the individuals who hired and fired employees; (5) the identity of the individuals who were in control of the financial affairs of the corporation.
Applying the foregoing principles to the present case, the Government has not established its case as a matter of law. Unlike the circumstances presented in Roth and Howard, taxpayer Jay did not manage the day-to-day affairs of the corporation, nor did he serve as an officer. His authority to pay bills was circumscribed by Helmuth. This is not a case where the taxpayer necessarily possessed authority as a treasurer to pay all bills, as in Howard; nor did Jay receive generalized instructions on priorities, as in Roth. Here, the president and general manager of the corporation specifically told Jay to pay other creditors, not the United States.
Although it appears from the record that Jay functioned as the office manager of the company and could write checks, the evidence indicates that he carried out these responsibilities subject to the executive committee‘s instructions and restrictions on which creditors he should pay.
We do not hold that Jay is absolved of liability. However, the record before us does not establish Jay‘s liability as a matter of law. Rather, we remand the case for a trial on the merits. The issues of liability are for the trier of fact to determine, upon all the evidence, taking into account questions of credibility and those reasonable inferences flowing from the evidence which may establish, or fail to establish, that Jay possessed a sufficient degree of authority over corporate decisionmaking so as to make him a responsible person within section 6672 of the Code. See Howard, supra; Roth, supra; Gephart, supra; Kizzier v. United States, 598 F.2d 1128 (8th Cir.1979); Hartman v. United States, 538 F.2d 1336 (8th Cir.1976).
III. CONCLUSION
We reverse and remand this case for further proceedings in accordance with this opinion.
McWILLIAMS, Senior Circuit Judge, dissenting.
I respectfully dissent. I believe that the district court was correct in ruling as a matter of law that Jay was a “responsible person” for payment of the withholding taxes under section 6672. The present case comes within the rationale of Roth v. United States, 779 F.2d 1567 (11th Cir.1986) and Howard v. United States, 711 F.2d 729 (5th Cir.1983), to which rationale I subscribe.
Theodore J. Sakowitz, Federal Public Defender, Dave Lee Brannon, Asst. Federal Public Defender, Miami, Fla., for defendant-appellee.
KRAVITCH, Circuit Judge:
The power of the Customs Service to board and search vessels outside the customs waters is the focus of this appeal. The indictment charged appellee with possession of more than five kilograms of cocaine with intent to distribute, a violation of
I.
In an effort to combat the illegal importation of drugs into the United States, Congress authorized the establishment of the joint United States-Bahamas Drug Interdiction Task Force in the Anti-Drug Abuse Act of 1986,
Suspecting that the Hobo II was engaged in the smuggling of drugs into the United States, the Customs officials decided to intercept the vessel. When the Customs vessel came within forty yards, with blue light flashing, the Hobo II halted abruptly. One of the Customs officers asked appellee, the captain of the Hobo II, his point of origin. Appellee‘s response appeared inconsistent with the officer‘s previous sighting of the Hobo II at Cat Cay some four days earlier. The Customs officials asked for permission to board the vessel to examine the vessel‘s registration, and appellee consented. Appellee also consented to a later request for permission to conduct a search of the vessel, and helped with the search. The Customs officials noticed that the boat had been altered in such a way that spaces had been created for which there was no access. The officers also noticed the odor of fresh fiberglass and areas where the paint on the deck of the boat was still tacky, observations inconsistent with appellee‘s statement that no one had done any remodeling of the boat recently. Subsequent investigation revealed hidden compartments, one of which contained almost six kilograms of cocaine.
II.
As the decisions of this circuit have made clear, the jurisdictions of the Coast Guard and Customs are distinct. United States v. Sarmiento, 750 F.2d 1506 (11th Cir.1985); see also United States v. Ceballos, 706 F.2d 1198 (11th Cir.1983); United States v. Williams, 617 F.2d 1063 (5th Cir.1980)2 (in banc). This may at times lead us to the frustrating examination of the jurisdiction of one service when it is undisputed the actions taken would be within the jurisdiction of the other.3 We fully share Con-
A.
We note at the outset that although Congress made the Customs Service a part of the joint United States-Bahamas Drug Interdiction Task Force, Congress did not in any way expand the jurisdiction of Customs when it gave Customs this role. The relevant provision of the Act is as follows:
(1)(B) The Secretary of State, the Commandant of the Coast Guard, the Commissioner of Customs, the Attorney General, and the head of the National Narcotics Border Interdiction System (NNBIS), shall upon enactment of this Act, immediately commence negotiations with the Government of the Bahamas to enter into a detailed agreement for the establishment and operation of a new drug interdiction task force....
Anti-Drug Abuse Act of 1986,
B.
[a]ny officer of the customs may at any time go on board of any vessel or vehicle at any place in the United States or within the customs waters or, as he may be authorized, within a customs-enforcement area established under the Anti-Smuggling Act, or at any other authorized place, without as well as within his district, and examine the manifest and other documents and papers and examine, inspect, and search the vessel or vehicle and every part thereof and any person, trunk, package, or cargo on board, and to this end may hail and stop such vessel or vehicle, and use all necessary force to compel compliance.
The customs waters are in turn defined in
Section 1701(a) grants the President the authority to declare an area to be a customs-enforcement area.4 We do not doubt that the area Customs was patrolling in this case was the type of area that Congress intended to be within the mean-
In Sarmiento the government sought to use the language of section 1581(a) permitting Customs to board vessels “at any other authorized place” to permit the boarding of any vessel on the high seas. We rejected the government‘s attempt to use this limiting language to bootstrap virtually limitless jurisdiction into the statute. Thus, in ruling that section 1581(a) did not give the Customs Service jurisdiction to board and search a vessel on the high seas, we observed that “the plain language of the statute prohibits customs officers from boarding and searching vessels on the high seas.” Sarmiento, 750 F.2d at 1506. We continue to adhere to our decision in Sarmiento. Yet Sarmiento did not strike the language “at any other authorized place” from the statute. Instead, Sarmiento—and we acknowledge a certain opacity in the opinion—held that section 1581(a) prohibits customs from boarding a vessel on the high seas unless that boarding is “at any other authorized place.” An “authorized place” may be on the high seas, but the high seas is not per se an “authorized place” for the purposes of section 1581(a).7
C.
Congress has specified in section 1587(a) that Customs may stop and search a vessel outside the customs waters if that vessel is a hovering vessel.8 Section 1587(a) expressly directs us to section 1581. Viewing the statutory scheme as a coherent whole, we see that section 1587(a) thus authorizes a stop and search “at any other authorized place” within the meaning of section 1581(a) when the vessel is a “hovering vessel.” If the Hobo II falls within the
Before proceeding, one further observation is appropriate. Congress did not intend to give Customs unlimited jurisdiction when it granted Customs the power to stop and search hovering vessels. Rather, Customs may act outside the customs waters or a customs-enforcement area only in the very narrow circumstances defined by the statute.10 Any contrary view would render the section 1587(a) limited grant of jurisdiction to Customs meaningless, and “would do violence to the Coast Guard‘s authority contained in
III.
With this in mind, we now turn to the case at hand. The government argued that the Hobo II was a hovering vessel under the meaning of section 1401(k)(l). The definition of hovering vessel appears in section 1401(k)(l):
The term “hovering vessel” means any vessel which is found or kept off the coast of the United States within or without the customs waters, if, from the history, conduct, character, or location of the vessel, it is reasonable to believe that such vessel is being used or may be used to introduce or promote or facilitate the introduction or attempted introduction of merchandise into the United States in violation of the laws respecting the revenue.
The transcript of the evidentiary hearing reveals that Customs officers gave undisputed testimony that the history, conduct, character, and location of the Hobo II all supported the reasonable belief that the Hobo II was being used to introduce contraband into the United States. The location of the vessel was in an area between Bimini and Miami—the so-called “hovering vessel staging area“—notorious for smugglers. Its mid-day time of departure from Bimini was conduct consistent with the favored time of departure for smugglers who would try to mix in with the legitimate fishing vessels returning to Miami. The character of the boat was also particularly suspicious. The officers testified that smugglers favored the Sea Ray class of vessel because it was wide beamed, and thus could easily be altered to accommodate hidden compartments. In addition, the Customs officials noticed that a large tool cabinet was fastened above-deck, whereas such cabinets are customarily below-deck. Furthermore, green indoor-outdoor carpeting covered the deck, preventing access to the hatch covers leading below. Both the above-deck tool cabinet and the green carpeting covering the deck suggested to the Customs officers that the Hobo II was carrying contraband. The history of the vessel further reinforced the suspicions of the Customs officers. The vessel had been seen four days earlier at Cat Cay, even though appellee appeared to deny this when he said that he had left Miami the day before.
Although the district court concluded that Sarmiento prohibited the Customs Service from boarding any vessel on the high seas, the court made it clear that the government had shown that the Hobo II
We share with the district court the concern that any vessel may appear to be suspicious after the fact. A vessel that stops abruptly when it spots customs, or one that tries to speed away, or one that tries to act naturally may each appear suspicious in its own way. Thus we must stress that our holding here is not meant to suggest that any vessel anywhere on the high seas is a hovering vessel. Nor do we suggest that every vessel between Bimini and Miami will fall within the section 1401(k)(l) definition of hovering vessel. In this case, as the district court noted, the history, conduct, character, and particularly location of the vessel all made the suspicion that the vessel was involved in smuggling objectively reasonable. In each case the court will have to inquire whether the suspicion of the Customs officials was objectively reasonable.
Thus, because the Hobo II was a hovering vessel under section 1587(a), the boarding was authorized by, and within the scope of, section 1581(a). The decision of the district court dismissing the indictment against appellee is accordingly REVERSED.
WALTER E. HOFFMAN, District Judge, dissenting:
The central issue on this appeal is the power of the United States Customs Service to board and search vessels outside the United States customs waters. This issue has previously been addressed by this court in United States v. Sarmiento, 750 F.2d 1506 (11th Cir.1985), where the panel, in a per curiam opinion, stated that “the plain language of the statute [
I.
The majority opinion in this case attempts to distinguish the present fact situation from the holding in Sarmiento through use of the statutory scheme authorizing customs jurisdiction. See ante pages 1182-1184. See generally
II.
Sarmiento involved the authority of customs officers to board a vessel on the high seas and seize marijuana found on board. Sarmiento, 750 F.2d at 1506.1 The government argued that the boarding and search were within the statutory authority of customs officers2 to board and search “at any other authorized place” because the other place where a vessel could be located (within customs waters) is included within the language of the statute. Id. The court broadly rejected this contention by asserting that the plain language of the statute prohibited customs officers from boarding and searching vessels on the high seas.
In support of this holding, the court said that acceptance of the government‘s interpretation “would make customs and coast guard jurisdiction almost concurrent, and would do violence to the coast guard‘s authority contained in
Notes
any officer of the Bureau of Customs of the Treasury Department (also hereinafter referred to as the “Customs Service“) or any commissioned, warrant, or petty officer of the Coast Guard, or any agent or other person authorized by law or designated by the Secretary of the Treasury to perform any duties of an officer of the Customs Service.
Whenever the President finds and declares that at any place or within any area on the high seas adjacent to but outside customs waters any vessel or vessels hover or are being kept off the coast of the United States and that, by virtue of the presence of any such vessel or vessels at such place or within such area, the unlawful introduction or removal into or from the United States of any merchandise or person is being or may be occasioned, promoted, or threatened, the place or area so found and declared shall constitute a customs-enforcement area for the purposes of this Act. Only such waters on the high seas shall be within a customs-enforcement area as the President finds and declares are in such proximity to such vessel or vessels that such unlawful introduction or removal of persons may be carried on by or to or from such vessel or vessels. No customs-enforcement area shall include any waters more that one hundred nautical miles from the place or immediate area where the President declares such vessel or vessels are hovering or are being kept and, notwithstanding the foregoing provision, shall not include any waters more than fifty nautical miles outward from the outer limit of customs waters....
Such a result appears to have been the intention of Congress in passing section 1587, although the evil contemplated during passage of the Anti-Smuggling Act of 1935 was illegal importation of alcohol rather than the current problem imposed by drug importation. See generally S.Rep. No. 1036, 74th Cong., 1st Sess. (1935); H.Rep. No. 868, 74th Cong., 1st Sess. (1935). The Senate report accompanying the hovering vessel statute stated that section 587 (19 U.S.C. § 1587) of the 1935 act—
[s]ubjects to customs examination in some cases outside of customs waters, vessels which are displaying particularly suspicious indicia of smuggling activity, such as failing to stop when properly required by customs officers, hovering suspiciously off the coast, or failing to display proper lights.
S.Rep. No. 1035, 74th Cong., 1st Sess. at 13 (1935).
This interpretation is further supported by reviewing the legislative history behind the 1936 enactment of Coast Guard authority to board American vessels on the high seas. See
Should this issue come before this circuit for en banc review, recognition should be given to the authority of customs officers to board and search vessels either outside the customs waters if they meet the requirement of
(a) Any hovering vessel, or any vessel which fails (except for unavoidable cause), at any place within the customs waters or within a customs-enforcement area established under the Anti-Smuggling Act, to display lights as required by law, or which has become subject to pursuit as provided in section 1581 of this title, or which, being a foreign vessel to which subsection (h) of section 1581 of this title applies, is permitted by special arrangement with a foreign government to be so examined without the customs waters of the United States, may at any time be boarded and examined by any officer of the customs, and the provisions of said section 1581 shall apply thereto, as well without as within his district, ...
The district court was reluctant to call the Hobo II a hovering vessel because it questioned whether a vessel that was not hovering at some stationary point outside the customs waters could be considered a hovering vessel. Indeed, the paradigm of a hovering vessel is that of the mother ship staying outside the customs waters while smaller ships bring the illegal cargo, be it rum or cocaine, into the United States. Yet, as our analysis here shows, we do not find that Congress‘s definition is limited only to these mother ships. Not only does the § 1401(k)(l) definition not contain any such limitation, but the definition expressly includes the vessel that is directly introducing the contraband into the United States. Therefore, in what is not the first example of statutory lexigraphic irony, we note that a hovering vessel need not be one that hovers, though of course such conduct would be a factor to be considered in determining whether a vessel was suspicious.