U.S. v. Fitzgibbon

• Decision Date: 22 April 1980
• Docket Number: No. 79-1281,79-1281
• Citation: 619 F.2d 874
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Kenneth C. FITZGIBBON, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 874

619 F.2d 874

UNITED STATES of America, Plaintiff-Appellee, v. Kenneth C. FITZGIBBON, Defendant-Appellant.

No. 79-1281.

United States Court of Appeals, Tenth Circuit.

Submitted March 11, 1980.

Decided April 22, 1980.

Joseph F. Dolan, U. S. Atty., and Rod W. Snow, Asst. U. S. Atty., Denver, Colo., for plaintiff-appellee.

Richard S. Henderson, San Diego, Cal., for defendant-appellant.

Before SETH, Chief Judge, McWILLIAMS and BARRETT, Circuit Judges.

BARRETT, Circuit Judge.

Kenneth C. Fitzgibbon (Fitzgibbon) appeals from a judgment denying his motion to vacate sentence imposed pursuant to 28 U.S.C. § 2255.

Background

Fitzgibbon is presently incarcerated following his conviction by a jury of knowingly and willfully making a false statement in violation of 18 U.S.C. § 1001, in connection with carrying on his person foreign currency in excess of $5,000.00 through United States Customs. This court affirmed. See: United States v. Fitzgibbon, 576 F.2d 279 (10th Cir. 1978), cert. denied, 439 U.S. 910, 99 S.Ct. 279, 58 L.Ed.2d 256 (1978).

The facts, in summary, leading to Fitzgibbon's conviction and sentence in the United States District Court for the District of Colorado are: Fitzgibbon entered the United States on a flight from Canada and, upon arrival in Denver on March 31, 1977, he tendered to a U. S. Customs official Customs Form 6059-B entitled "Customs Declaration" given to all incoming passengers; the form asks whether the person responding or anyone in his or her party is carrying over $5,000.00 in coin, currency or monetary instruments; Fitzgibbon checked a "no" response to that question, and, in addition, he gave a similar oral response to a Customs official following his arrival at Stapleton International Airport in Denver, Colorado; nothing on Form 6059-B advised Fitzgibbon of the reporting requirements of the Bank Secrecy Act of 1970, Pub.L. No. 91-508, 84 Stat. 1114 (1970) (codified in scattered sections of 12, 31 U.S.C.); Customs Officer Lockhart, after inquiring of Fitzgibbon orally, received a negative verbal response to the identical question posed on Form 6059-B relative to possession of currency in excess of $5,000.00, together with Fitzgibbon's explanation that he had been in Canada overnight and had not acquired anything during the trip; Lockhart observed that Fitzgibbon was hesitant and nervous, and thus decided that a secondary examination was required; after Fitzgibbon was taken to a separate room, currency in excess of $10,000.00 was found in Fitzgibbon's boots when he removed them; after receiving Miranda warnings, Fitzgibbon stated that he had acquired the money in Canada and that he did not want to "hassle" with Internal Revenue over it because a "portion" of it was not his, but rather belonged to an individual residing in New Jersey.

The indictment upon which Fitzgibbon was convicted and subsequently sentenced relied solely upon the charge that he knowingly and willfully made a false statement in completing Customs Form 6059-B relative to the currency inquiry.

Fitzgibbon's direct appeal to this Court from his initial conviction was anchored to two primary contentions: First, that the indictment was defective because it did not specifically cite the federal regulation defining the term "monetary instruments" contained in the statute as including Canadian currency, and, second, that the Customs form referred to was a "baggage declaration" and, thus, not a proper form. These contentions were held to be without merit. See: United States v. Fitzgibbon, supra.

Following our affirmance of Fitzgibbon's conviction, he was incarcerated in the federal prison at Lompoc, California. On November 13, 1978, Fitzgibbon filed his motion pursuant to the federal habeas corpus statute, 28 U.S.C. § 2255, to vacate and set aside his sentence. The District Court denied Fitzgibbon's motion in a Memorandum Opinion and Order.

On appeal, Fitzgibbon contends that the District Court erred in failing to grant his motion in that: (1) he was denied effective assistance of counsel at trial, inasmuch as his attorney failed to raise the so-called "exculpatory no" defense to the 18 U.S.C. § 1001 charge, and (2) the "farce, sham or mockery of justice" test should not have been applied in determining whether his effective assistance of counsel claim was valid.

I.

Fitzgibbon contends that, "Because of the 'exculpatory no' defense, the checking of the box 'no' and the oral 'no' to the inquiry as to whether a traveler brings more than $5,000.00 from abroad into the United States is outside the scope of the offense of making a false statement in violation of 18 U.S.C. Sec. 1001 and, standing alone, these facts could not bottom a finding beyond a reasonable doubt that Fitzgibbon had knowingly and willfully violated that Section as a matter of law. The failure to raise the defense (i. e., the "exculpatory no" defense), ipso facto, demonstrates lack of effective assistance of counsel." (Opening brief of appellant at p. 3).

We first observe, as did the District Court (R., Vol. I, p. 66), that the "exculpatory no" defense was raised by counsel for Fitzgibbon before the trial court in a motion to dismiss for failure to charge an offense; on appeal to this Court; and in a petition for writ of certiorari denied by the Supreme Court. Thus, a serious question exists as to whether Fitzgibbon is estopped from raising the same issue in this habeas corpus posture. We elect to reach the issue both because it was apparently not properly articulated in the prior proceedings and because it is an issue which has not been previously decided by this Court directly in the context of the facts of this case.

18 U.S.C. § 1001 provides that:

Whoever, in any matter within the jurisdiction of any department or agency of the United States knowingly and willfully falsifies, conceals or covers up by any trick, scheme, or device a material fact, or makes any false, fictitious or fraudulent statements or representations, or makes or uses any false writing or document knowing the same to contain any false, fictitious or fraudulent statement or entry, shall be fined not more than $10,000 or imprisoned not more than five years, or both.

The "Exculpatory No" Exception

The predicate of the "exculpatory no" defense is simply that a negative response cannot serve as proof of the requisite knowledge and willfulness required to convict under 18 U.S.C. § 1001, absent affirmative steps taken by the government to make the reporting requirements of the law known.

A confession is a species of admissions. It is an acknowledgment in express words, by the accused in a criminal case, of the truth of the guilty fact charged or of some essential part of it. Exculpatory statements, denying guilt, are not confessions. Wigmore on Evidence, 3rd Ed., Vol. 3, § 821. A "confession" leaves nothing to be determined. It is a defendant's acknowledgment of his intentional participation in the criminal act. An "admission", on the other hand, constitutes a mere recital of facts which tend to establish guilt. Thus, an "exculpatory statement" has been described as a statement which tends to justify, excuse or clear a defendant from alleged fault or guilt.

Fitzgibbon's primary reliance on the "exculpatory no" defense is the decision rendered by the Fifth Circuit in United States v. Schnaiderman, 568 F.2d 1208 (5th Cir. 1978). The court there held that the "exculpatory no" defense applied in a prosecution almost identical to Fitzgibbon's; Schnaiderman's conviction was reversed. The facts in Schnaiderman are: Schnaiderman, a Venezuelan resident, arrived at Miami International Airport and entered the United States Customs line; he presented Customs Declaration Form 6059-B, which he had not completed; the Customs Inspector directed Schnaiderman to complete and sign the form, which he did; when Schnaiderman reappeared in the line, he handed the inspector Form 6059-B completed and signed; on the form, Schnaiderman checked the "no" answer to the inquiry relative to whether he was carrying cash or negotiable instruments in excess of $5,000.00; and, in addition, he orally responded "no" when Customs Inspector Randall verbally inquired as to whether he was carrying more than $5,000.00; when Schnaiderman passed on to Customs Inspector Deeley in the line, it was observed that Schnaiderman's pockets were bulging and that he was nervous; Schnaiderman was asked to empty his pockets and thereupon $8,086.00 was found on his person; when Inspector Deeley inquired of Schnaiderman whether he understood United States currency laws, Schnaiderman responded that he was aware of the laws but that he was not going to spend the money in the United States.

Schnaiderman was charged with violating 18 U.S.C. §§ 1001 and 1058. On appeal, he asserted that there was insufficient evidence, as a matter of law, to prove that he intentionally violated these statutes. He argued that the "exculpatory no" exception applied to the negative response to the question posed on Form 6059-B and the identical oral response he made to Customs Inspector Randall. The Court agreed, reasoning that since 18 U.S.C. § 1001 requires "knowing" transportation and since 31 U.S.C. § 1058 requires a "willful" violation, there must be proof of the defendant's knowledge of the reporting requirement and his specific intent to commit the crime. The Court cited to its prior opinion in United States v. Granda, 565 F.2d 922 (5th Cir. 1978) which followed United States v. San Juan, 545 F.2d 314 (2nd Cir. 1976).

In Granda, the Court, in disposing of the Government's argument that the question on Form 6059-B relative to currency in excess of $5,000.00 put the traveler on notice that he must file the report on Form 4790, stated:

. . . The failure of the government to make known the requirements of the statute is fatal to their case. The isolated act of bringing money in excess of $5,000 into the country is not illegal or even immoral....