U.S. v. Duncan

• Decision Date: 03 December 1982
• Docket Number: No. 80-1459,80-1459
• Citation: 693 F.2d 971
• Parties: 12 Fed. R. Evid. Serv. 82 UNITED STATES of America, Plaintiff-Appellee, v. Don Bruce DUNCAN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 971

693 F.2d 971

12 Fed. R. Evid. Serv. 82

UNITED STATES of America, Plaintiff-Appellee, v. Don Bruce DUNCAN, Defendant-Appellant.

No. 80-1459.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted April 7, 1981.

Decided Dec. 3, 1982.

Robert Mann, Mark Green, P.C., Los Angeles, Cal., for defendant-appellant.

George L. O'Connell, Asst. U.S. Atty., Los Angeles, Cal., argued, for plaintiff-appellee; Charles Pereyra, Asst. U.S. Atty., Los Angeles, Cal., on brief.

Appeal from the United States District Court for the Central District of California.

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 18 U.S.C. Sec. 1001. We affirm.

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 out 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.

At 11:00 P.M., passengers began to board Flight 923. Duncan had passed through the airline checkpoint and was proceeding on the boarding ramp when Henry and Lauridsen stopped him. In his declaration in opposition to Duncan's suppression motion, Officer Henry stated that "At that point, we identified ourselves as United States Customs Special Agents and asked Mr. Duncan if we could ask him a few questions away from the view of the other passengers. Mr. Duncan replied affirmatively. We then went with Mr. Duncan to the upper portion of the boarding ramp which was not being used."

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, 31 U.S.C. Sec. 1101(b), because he had failed to report to Customs that he was taking over $5,000 out of the country. Lauridsen advised Duncan that they were going to seize his $10,000 because of the 1101(b) violation, and said "Looks like you'll be missing your flight." Duncan had not yet received Miranda warnings.

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 surrendered 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. Sec. 1001 is invalid because his "false statement" to customs agents cannot form the basis of an 18 U.S.C. Sec. 1001 charge. Second, he contends that the stop and search violated the fourth amendment, and therefore all evidence derived from that search is inadmissible. Third, he contends that his statements are inadmissible because they were made during custodial interrogation but before Miranda warnings were given. Finally, he contends the trial court's rulings on discovery, jury instructions and the court's evidentiary rulings were in error, and require reversal.

18 U.S.C. Sec. 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 18 U.S.C. Sec. 1001 conviction because: (1) there is a more narrowly drawn statute which specifically prohibits his conduct; (2) Duncan's statement was not material within the meaning of Sec. 1001; and (3) Duncan's statement fell within the "exculpatory no" exception to Sec. 1001. We find no merit in any of these contentions. ¹

1. Narrowly Drawn Statute

Duncan contends that 18 U.S.C. Sec. 1001 is a "catch-all" false statement statute which cannot be applied to a defendant's conduct if a more specific, narrowly drawn statute prohibits the same conduct. Duncan claims that the currency reporting statutes, 31 U.S.C. Secs. 1058 and 1101 ², are applicable in this case, and therefore preclude application of 18 U.S.C. Sec. 1001. We disagree.

There is no reason that Duncan cannot be charged and convicted under 18 U.S.C. Sec. 1001 simply because another statute is also applicable. ³ Often a course of criminal conduct will entail the violation of several statutes. In those cases, if the statutes are not redundant, ⁴ the prosecutor may charge the defendant with violating one or all of the statutes, and the defendant can be convicted of violating more than one statute. See United States v. Moore, 638 F.2d 1171 (9th Cir.1980) (defendant convicted of violating both 18 U.S.C. Sec. 1001 and 31 U.S.C. Sec. 1101.) Thus, the 18 U.S.C. Sec. 1001 count was proper.

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 Sec. 1001, and therefore cannot constitute the basis of an 18 U.S.C. Sec. 1001 conviction. We disagree. This court has held that a statement satisfies the materiality requirement of 18 U.S.C. Sec. 1001 if "the false statements [could] have affected or influenced the exercise of a governmental function." United States v. Goldfine, 538 F.2d 815, 820 (9th Cir.1976).

In United States v. Carrier, 654 F.2d 559 (9th Cir.1981), this court held that a response of "no" to a customs inquiry of whether a person was bringing over $5,000 into the United States was material within the meaning of 18 U.S.C. Sec. 1001. The Carrier court stated:

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. Sec. 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 18 U.S.C. Sec. 1001.

3. "Exculpatory No" Exception

Duncan contends that his false statement that he had only $5,000 cannot be used to convict him under Sec. 1001 because a "yes" response to the inquiry of Custom's agents would have tended to incriminate him; Duncan contends he was therefore entitled to respond with an "exculpatory no." Duncan is mistaken. In United States v. Moore, 638 F.2d 1171, 1175-76 (9th Cir.1980), this court explicitly held that any affirmative statement in response to a Customs agent's inquiry can form the basis of a Sec. 1001 conviction. In response to the "exculpatory no" argument, the Moor...