706 F.2d 1092 (11th Cir. 1983), 82-5490, United States v. Tobon-Builes

Docket Nº:82-5490.
Citation:706 F.2d 1092
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Oscar de J. TOBON-BUILES, Defendant-Appellant.
Case Date:June 06, 1983
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit
 
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706 F.2d 1092 (11th Cir. 1983)

UNITED STATES of America, Plaintiff-Appellee,

v.

Oscar de J. TOBON-BUILES, Defendant-Appellant.

No. 82-5490.

United States Court of Appeals, Eleventh Circuit

June 6, 1983

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[Copyrighted Material Omitted]

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Lawrence J. Arnkoff, Coral Gables, Fla., for defendant-appellant.

Michael T. Simpson, Asst. U.S. Atty., Tallahassee, Fla., for plaintiff-appellee.

Appeal from the United States District Court for the Northern District of Florida.

Before RONEY and CLARK, Circuit Judges, and GIBSON [*], Senior Circuit Judge.

FLOYD R. GIBSON, Senior Circuit Judge:

Oscar de J. Tobon-Builes was convicted by a jury on a one-count indictment charging Tobon with using a trick, scheme, or device to conceal and coverup and to cause to be concealed and covered up material facts in a matter within the jurisdiction of the Department of Treasury of the United States, in violation of 18 U.S.C. Sec. 1001 (1976). The indictment specifically alleged that Tobon concealed and caused to be concealed the existence, source, and transfer of approximately $185,200 in cash by purchasing approximately twenty-one cashier's checks in amounts less than $10,000 from eleven different financial institutions, using a variety of names, including false names, as payees and remitters for the purpose of avoiding the financial institutions' filing of Currency Transaction Reports ("CTRs") required by 31 U.S.C. Sec. 1081 (1976) and 31 C.F.R. Sec. 103.22 (1982). In this appeal, Tobon contends that: (1) he did not commit the offense of concealment under Sec. 1001 because he was under no legal duty to disclose the existence, source, and transfer of the $185,200; (2) the trial court erred in denying his motion to suppress evidence and statements derived from an alleged illegal arrest; (3) the trial court erred in admitting a gun seized at the time of Tobon's arrest and thereby denied Tobon his right to a fair trial; (4) the prosecutor's closing remark that defense counsel could not logically explain the evidence constituted an improper comment on Tobon's failure to testify. For the reasons set forth herein we reject all of Tobon's contentions and affirm his conviction.

I. Factual Background

The undisputed evidence presented at trial indicated that over a six-hour period Tobon and his female companion, Theresa Roman, went to ten banks in Northern Florida and at each bank made virtually simultaneous pairs of cash purchases of cashier's checks, each pair totaling around $18,000, yet each individual check for less than $10,000, thereby escaping the bank's required filing of a Currency Transaction Report for cash transactions exceeding $10,000. 31 C.F.R. 103.22(a). The couple used a variety of false names in identifying themselves to the banks and attempted to conceal the fact that they were together by entering the banks separately and going to different tellers. Testimony of these banking transactions was provided by bank tellers who sold the cashier's checks to Tobon and Roman. Testimony regarding the events leading up to the couple's arrest was provided by surveillance police officers who observed the couple's activities during their cashier-check purchasing spree. This testimony revealed the following scenario.

On December 30, 1981, Tallahassee police officers observed Tobon and Roman each purchasing $9,000 in cashier's checks from separate tellers at the Barnett Bank in

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downtown Tallahassee. Tobon and Roman were Hispanic and had difficulty communicating with the tellers in English. The couple left the bank in the same car, a 1979 Cadillac. Investigator Slovenkay was notified of this suspicious banking transaction and established a surveillance of the couple at about 1:00 p.m. The surveillance team later observed the couple repeating the same transaction at the Florida Federal Savings and Loan Association, each again purchasing $9,000 cashier's checks with cash. Tobon and Roman then drove to the Sun Federal Savings and Loan Association and unsuccessfully attempted to repeat the transaction. They next drove to the Tallahassee Federal Savings and Loan Association where Roman paid cash for another $9,000 cashier's check and Tobon unsuccessfully attempted to purchase $9,000 in traveler's checks. They then went to a K-Mart store where Tobon spent half an hour consulting the yellow pages under the listing of financial institutions. Thereafter, each purchased $9,000 cashier's checks at two more Tallahassee banks, the Ellis National Bank and the Florida State Bank, and then returned to the Barnett Bank, where Roman changed coats and attempted to purchase yet another $9,000 cashier's check. When bank officials, following a police request, asked for identification, Roman said she would have to retrieve it from her car. Roman went back to the Cadillac where Tobon was waiting and the two drove away. The couple went to a local restaurant to eat dinner. After dinner, approximately 6:30 p.m., they drove north through Tallahassee, stopped for fuel and asked directions to Pensacola, Florida, via Interstate 10. They then drove north on Highway 27 continuing some twenty miles north of the well-marked I-10 cutoff until they were within a mile of the Georgia state line. They again stopped and requested directions to I-10, then returned south on Highway 27 and eventually turned west onto I-10.

By the time Tobon and Roman entered I-10, the surveillance team knew that the two had purchased between nine and eleven cashier's checks for $9,000 each using a variety of different Hispanic names as payees. Investigator Slovenkay had been advised by banking and customs officials that banks were required to file reports for currency transactions of $10,000 or more. Slovenkay concluded that Tobon and Roman were involved in a scheme to circumvent those reporting requirements. Slovenkay also believed that the cashier's check purchases were related to illegal drug trafficking and efforts to launder drug money. The surveillance team, which at this point consisted of twelve officers, stopped the Cadillac on a bridge approximately one mile after it had turned west on I-10. Slovenkay and one other officer had their weapons drawn. Tobon exited the car and was patted down. Tobon produced a Columbian driver's license but did not have his passport on him. The vice squad's Spanish speaking secretary, Leslie Ave, attempted to advise the couple of their rights, but could not communicate with either of them. At this point, it was 8:00 p.m., dark, cold, windy, rainy, and traffic on the interstate was heavy. Slovenkay therefore decided to transport Tobon and Roman back to the police station.

At the station, Ave gave Tobon and Roman full Miranda warnings in Spanish. Both said they fully understood their rights. Later, Customs Patrol Officer David Cota, who was bilingual, gave Tobon the Miranda warnings. Tobon waived his rights and stated that he had won a lot of money gambling but that it was not in the Cadillac. Cota also advised Roman of her Miranda rights. Roman understood and waived those rights. She claimed ownership of the Cadillac and consented to a search of it. Shortly later, Tallahassee Officer Donna Campbell, who was bilingual, again advised Tobon of Miranda rights. Tobon said he understood his rights and signed a written waiver of such rights. The waiver was written in Spanish. Tobon was relaxed, cooperative, and spoke freely and openly. He told Officer Campbell that he won over $100,000 playing poker and was purchasing cashier's checks in amounts less than $10,000 to avoid bank reporting requirements because he did not want to pay

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federal taxes on his winnings. Campbell then interviewed Roman after she had executed a written waiver of her Miranda rights in Spanish. Roman again claimed ownership and consented to search of the Cadillac. Campbell then returned to Tobon who granted permission to look through luggage and property of his in the Cadillac. The search of the car revealed the following items: eleven $9,000 cashier's checks purchased in Tallahassee on December 30, 1981, with numerous different Hispanic names, including Roman but not Tobon as remitters and payees; torn customer receipt copies of ten cashier's checks purchased December 29, 1981, in Orlando, seven for $9,000, two for $9,100, and one for $5,000; $12,000 in U.S. currency; the return portion of a round-trip airline ticket from Medellin, Columbia--Miami, Florida; and a loaded .38 revolver. All of these items were introduced into evidence over Tobon's objections. Tobon sought to suppress all evidence and statements derived from the allegedly illegal warrantless arrest. The court found that the police officers, specifically Investigator Slovenkay, had probable cause to believe Tobon violated currency laws; "exigent circumstances" justified the warrantless arrest because the police officers reasonably believed the automobile contained evidence that could be easily destroyed or concealed. The court also found that Tobon voluntarily consented to the search of the car. Finally, Tobon's statements were voluntarily given after Tobon knowingly and intelligently waived his right to counsel and to remain silent.

II. 18 U.S.C. Sec. 1001: Concealment

The indictment charged Tobon with violating Sec. 1001 by knowingly and willfully concealing and causing to be concealed, by trick, scheme, or device, material facts within the jurisdiction of the Department of Treasury of the United States. The material facts concealed were the existence, origin, and transfer of approximately $185,200 in cash. Tobon, by his own admission, sought to prevent banks from filing Currency Transaction Reports by structuring his cash purchases of $185,200 in cashier's checks as a number of smaller cash purchases, each being less than $10,000. Tobon's purpose for doing this was to prevent the Internal Revenue Service from learning about...

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