U.S. v. Rodriguez-Rios, RODRIGUEZ-RIO

• Citation: 14 F.3d 1040
• Decision Date: 11 February 1994
• Docket Number: D,No. 92-8257,RODRIGUEZ-RIO,92-8257
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Zacariasefendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

Page 1040

14 F.3d 1040

62 USLW 2579

UNITED STATES of America, Plaintiff-Appellee, v. Zacarias RODRIGUEZ-RIOS, Defendant-Appellant.

No. 92-8257.

United States Court of Appeals, Fifth Circuit.

Feb. 11, 1994.

Salvador C. Ramirez, Robert R. Harris, El Paso, TX, for defendant-appellant.

Nina S. Goodman, Crim. Div., Appellate Sec., Dept. of Justice, Washington, DC, Richard L. Durbin, Jr., Margaret Feuille Leachman, Diane D. Kirstein, Asst. U.S. Attys., Ronald F. Ederer, U.S. Atty., San Antonio, TX, for plaintiff-appellee.

Appeal from the United States District Court for the Western District of Texas.

Before POLITZ, Chief Judge, KING, GARWOOD, JOLLY, HIGGINBOTHAM, DAVIS, JONES, SMITH, DUHE, WIENER, BARKSDALE, EMILIO M. GARZA, and DeMOSS, Circuit Judges.

JERRY E. SMITH, Circuit Judge:

Today we overrule the "exculpatory no" exception to 18 U.S.C. Sec. 1001 as the law in this circuit. We therefore affirm the conviction of Zacarias Rodriguez-Rios ("Rodriguez") of one count of making a false, fictitious, or fraudulent representation of a material fact in violation of Sec. 1001.

I.

We take the following facts from the panel opinion, United States v. Rodriguez-Rios, 991 F.2d 167 (5th Cir.1993). Rodriguez was viewed by a United States customs agent as he was exiting an airplane at the airport in Santa Teresa, New Mexico. Rodriguez placed a suitcase in the trunk of an automobile sporting a paper license plate in its rear window and driven by a young woman. Rodriguez then entered the passenger side of the vehicle and proceeded to the Bridge of the Americas Port of Entry, which divides El Paso, Texas, from Juarez, Mexico.

Customs agents followed Rodriguez from the airport to the bridge and stopped him just before he could cross the border. Agent McCarthy informed Rodriguez that he was conducting a routine export examination and asked, among other things, how much money Rodriguez had with him. Rodriguez responded, "About a thousand dollars," and removed what turned out to be $1,400 from his pocket.

McCarthy continued to question Rodriguez, asking him whether anything in the trunk belonged to him. His suspicions apparently aroused, Rodriguez inquired as to the agent's purpose, whereupon McCarthy repeated that it was a routine export examination. McCarthy next asked Rodriguez where he had flown from before arriving in Santa Teresa, and Rodriguez replied that he had left Springfield, Illinois, for Santa Teresa in a private aircraft and that he was a personal assistant to the mayor of Juarez.

When McCarthy again asked Rodriguez how much money he was carrying, he made no reply. When asked whether anything in the trunk belonged to him, Rodriguez stated, "That depends on why you are asking." McCarthy again asked how much money he had, but this time Rodriguez answered that he did not know.

Rodriguez was taken inside the customs office and advised in Spanish by customs inspector Vega of the currency reporting requirement--that it is not illegal to leave the country with more than $10,000, but that he must complete a Customs Form 4790 Currency Monetary Instrument Report declaring any sum in excess of that amount. Vega then asked Rodriguez whether he had more than $10,000 with him and whether he had filled out the required form. Rodriguez did not respond to these questions, and Vega testified that his body mannerisms were evasive. When McCarthy again asked whether any of the suitcases in the trunk were his, and Rodriguez reiterated that "[i]t depends on why you are asking," the vehicle was moved into a secondary inspection area, and Rodriguez and the car's driver were taken inside the customs office.

Two narcotics dogs were brought to inspect the car; the first alerted to its exterior, and the second sniffed the packages in the open trunk and alerted to the suitcase and a shoebox wrapped with duct tape. Both were opened and found to be filled with U.S. currency in the cumulative approximate sum of $598,000.

Meanwhile, back in the customs office, Rodriguez was asked to fill out a Form 4790. Acknowledging that the money was his, Rodriguez began to fill out the report with agent Straba's assistance. Straba restated the currency reporting requirements, again assuring Rodriguez that he could take any sum out of the country so long as he declared it in writing. Apparently finished, Rodriguez placed the form on the counter, but when Straba picked it up, Rodriguez took the form from him and folded it into his pocket, saying he did not wish to give it to Straba. Nonetheless, Straba had seen enough of the form to notice that it declared an amount of $530,000.

When informed that large amounts of cash had been discovered in the trunk, Straba proceeded to arrest Rodriguez, who refused to speak to the agents until he could consult with an attorney. Later, Rodriguez changed his mind and agreed to talk. He requested a second opportunity to complete a reporting form, was provided one, and stated thereon that he was exporting $500,000.

II.

A federal grand jury returned a two-count indictment charging Rodriguez with failing to file the prescribed report for the transportation of currency and monetary instruments of more than $10,000 in violation of 31 U.S.C. Secs. 5316(a)(1)(A) and 5322(a) (first count), and making a false, fictitious, or fraudulent statement or representation in violation of 18 U.S.C. Sec. 1001 (second count). After a bench trial, the court dismissed the first count for insufficient evidence but found Rodriguez guilty on the second.

Rodriguez appealed, arguing that he was protected by the "exculpatory no" exception to Sec. 1001, which provides that "a generally negative and exculpatory response made by a subject of a criminal investigation in reply to questions directed to him by investigating officers is not a crime under Sec. 1001." United States v. Krause, 507 F.2d 113, 117 (5th Cir.1975). A panel of this court, acknowledging that it was bound by circuit precedent, agreed and reversed the conviction, holding that Rodriguez could not be prosecuted under Sec. 1001 for his initial statement that he was carrying no more than $1,000. United States v. Rodriguez-Rios, 991 F.2d 167, 170 (5th Cir.1993). ¹ We granted a rehearing en banc, id. at 171, in order to re-examine the "exculpatory no" exception, as suggested by one of the panel members, see id. at 170-71 (Higginbotham, J., concurring).

III.

Section 1001 provides,

Whoever, in any matter within the jurisdiction of any department or agency of the United States knowingly and willfully ... makes any false, fictitious or fraudulent statements or representations, ... shall be fined not more than $10,000 or imprisoned not more than five years, or both.

18 U.S.C. Sec. 1001. Since 1962, this circuit has held that a brief denial of guilt to an investigating federal officer is not punishable under Sec. 1001. ²

In Paternostro, we held that a policeman's denial that he had received graft money was not punishable under Sec. 1001, because

[t]he appellant in the case at bar made no statement relating to any claim on his behalf against the United States or an agency thereof; he was not seeking to obtain or retain any official position or employment in any agency or department of the Federal Government; and he did not aggressively and deliberately initiate any positive or affirmative statement calculated to pervert the legitimate functions of Government.

311 F.2d at 305. Thus, we examined whether any of the three purposes of Sec. 1001 would be vindicated in the case at hand. Concluding that they would not, we held that the "exculpatory no" exception applied.

Subsequent cases have not involved persons lodging claims against or seeking employment with the government, and therefore the perversion-of-function rationale has been paramount. ³ In addition to the purposes of Sec. 1001, we have relied upon yet another justification for the exception, reasoning that a literal interpretation would come "uncomfortably close to the Fifth Amendment." Lambert, 501 F.2d at 946 n. 4; see also Bush, 503 F.2d at 818-19.

Seven other circuits have embraced the "exculpatory no" exception in one form or another. ⁴ Some circuits have neither adopted nor rejected the doctrine. ⁵ One circuit has eschewed the exception. ⁶

Of the approaches adopted by the other courts, that of the Ninth Circuit is especially noteworthy. That court held that a false statement does not violate Sec. 1001 if five requirements are satisfied: (1) the false statement must be unrelated to a claim to a privilege or a claim against the government; (2) the declarant must be responding to inquiries initiated by a federal agency or department; (3) the false statement must not impair the basic functions entrusted by law to the agency; (4) the government's inquiries must not constitute a routine exercise of administrative responsibility; and (5) a truthful answer would have incriminated the declarant. United States v. Equihua-Juarez, 851 F.2d 1222, 1224 (9th Cir.1988) (citing Medina de Perez, 799 F.2d at 544 n. 5). ⁷

IV.

The "exculpatory no" exception cannot be found in the plain language of Sec. 1001, which prohibits three possible acts: concealing a material fact, making a false statement, and using a false writing. Although it cannot be discerned immediately from the statute, the "knowingly and willfully" requirement applies to all three types of conduct. See United States v. Lange, 528 F.2d 1280, 1287 (5th Cir.1976); United States v. Mekjian, 505 F.2d 1320, 1324 (5th Cir.1975).

The instant case and the "exculpatory no" exception concern the "false statement" portion of Sec. 1001. Thus, the relevant language of Sec. 1001 is this: "Whoever, in any matter within the jurisdiction of any department or agency of the United States knowingly and willfully ... makes any false, fictitious or fraudulent statements or representations...."

A literal interpretation of the statute does not countenance the "exculpatory no" exception. Some court...