U.S. v. One Hundred Twenty-Two Thousand Forty-Three Dollars ($122,043.00) In U.S. Currency

• Decision Date: 09 September 1986
• Docket Number: TWENTY-TWO,No. 84-6379,FORTY-THREE,84-6379
• Citation: 792 F.2d 1470
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. ONE HUNDREDTHOUSANDDOLLARS ($122,043.00) IN UNITED STATES CURRENCY, Defendant, Cynthia Johnson Meixner, Claimant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1470

792 F.2d 1470

UNITED STATES of America, Plaintiff-Appellee, v. ONE HUNDRED TWENTY-TWO THOUSAND FORTY-THREE DOLLARS ($122,043.00) IN UNITED STATES CURRENCY, Defendant Cynthia Johnson Meixner, Claimant-Appellant.

No. 84-6379.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Sept. 5, 1985.

Decided July 1, 1986.

As Amended Sept. 9, 1986.

Stephen D. Petersen, Asst. U.S. Atty., Los Angeles, Cal., for plaintiff-appellee.

William Genego, Los Angeles, Cal., for claimant-appellant.

On Appeal From the United States District Court for the Central District of California.

Before CANBY, BEEZER and HALL, Circuit Judges.

CYNTHIA HOLCOMB HALL, Circuit Judge:

The government filed a complaint for civil forfeiture against the defendant currency, alleging a violation of the currency reporting requirement for transporting more than $5,000 in monetary instruments outside the United States. Cynthia Johnson Meixner, claimant of the currency, timely appeals from the district court's order granting summary judgment for the government, 28 U.S.C. Sec. 1291. We affirm.

I

On April 25, 1983, Cynthia Johnson Meixner arrived at Los Angeles International Airport uniquely attired for international travel. She was wearing a blouse and pants that concealed the leotards and tights she wore underneath. Inside the tights were six sewn pockets, and inside the pockets were secreted stacks of one-hundred dollar bills. Meixner entered the airport that day literally wearing $60,000 in United States Currency.

Meixner had her passport and a one-way, first-class airline ticket to Lima, Peru aboard Varig flight 833. ¹ The ticket had been purchased with cash. She also had with her luggage, containing $60,600 in United States Currency, and her handbag, containing another $1,443. Meixner checked her luggage before she headed for the departure area.

About ten minutes before flight 833 began boarding, Customs Patrol Officer ("CPO") Burbach made an announcement over the public address system advising departing passengers of the currency reporting requirement. The announcement was made in both English and Spanish and could be heard in the ticketing area, on the departure level, and inside the connecting concourse. Meixner claims that she arrived late for her flight and did not hear the announcement.

Customs officers also had posted notices of the reporting requirement on the wall next to the gate from which flight 833 was scheduled to depart as well as throughout the departure level of the airport. The notice stated:

If you transport, mail, ship or receive more than $5,000 in currency of the U.S. or any other country, or monetary instruments (such as travelers checks, negotiable instruments in bearer form, or money orders) into or out of the United States, you must file a report with the U.S. Customs Service.

Ask a Customs Officer for a currency report form.

Failure to report can result in forfeitures of the monies and civil and criminal penalties (31 U.S.C. 1101, et seq.).

Department of the Treasury, U.S. Customs Service.

Meixner passed through the security checkpoint on the departure level. She walked past the notices on the walls on that level. She handed a portion of her boarding pass to the Varig employee at the gate for flight 833, and she walked past the notice located at the gate. At no time before she entered the jetway did Meixner ever attempt to complete a currency report form.

Three Customs Patrol Officers were stationed at the gate for flight 833. They moved onto the jetway after the announcement of the reporting requirement was made over the public address system. At about 1:00 p.m., passengers for flight 833 began to enter the jetway. Meixner stepped onto the jetway at 1:25 p.m.

When Meixner entered the jetway, CPO Johnson stopped Meixner, and the following colloquy commenced:

CPO JOHNSON: Excuse me ma'am, I'm a Customs Officer, are you taking more than $5,000 out of the country?

MEIXNER: No.

CPO JOHNSON: Do you understand that the transportation of money is legal but you have to report it?

MEIXNER: Yes.

CPO JOHNSON: Do you have more than $5,000?

MEIXNER: No--about $3,000. ²

CPO JOHNSON: Okay.

Meixner then proceeded up the jetway toward the plane. Two other Customs Officers were located close to the entrance of flight 833. They too stopped Meixner. CPO Burbach identified herself as a United States Customs Officer and asked Meixner for her passport. After Burbach examined the passport, Burbach asked Meixner again if she understood that the transportation of currency was legal but had to be reported. Meixner replied affirmatively. Meixner added that she had about $3,000 of her own money and that, in addition, she had $95,000 of her husband's money in her checked luggage. Burbach asked for the baggage claim check so that the agents could make an exact computation of the money in the suitcase.

Meixner handed Burbach the airline ticket and the appended claim check. CPO Fuller then asked CPO Johnson to bring Meixner a claim form. Johnson handed the claim form to Meixner and the following conversation ensued:

MEIXNER: I didn't understand because it's not my money, so I don't know why I need to fill this out. Am I going to miss my flight, I'll fill out the form but I didn't know I needed to if it wasn't my money.

JOHNSON: How much money do you have?

MEIXNER: About $3,000--I don't know--are you going to make me miss my flight--I'll fill out the form. ²

JOHNSON: Before I check your take-on luggage and purse, are you sure that you only have $3,000?

MEIXNER: I have about $10,000.

JOHNSON: Where is it?

Meixner pointed to her right thigh. CPO Johnson could see a bulge on her left thigh which appeared to be the same shape and size as the bulge on her right.

Meixner was taken to the Customs Inspection Area where she was searched. Sixty-thousand dollars in $100 bills were found on her person; another $60,600 were found in her luggage, and $1,443 were concealed within her purse. Meixner attempted to explain the large sum of money stating that it was to be used by her husband in the cultivation of his jojoba plantation.

The government filed a complaint alleging two counts of civil forfeiture as to the defendant currency. ³ This appeal arises from the district court's grant of summary judgment in favor of the government based upon the government's claim under 31 U.S.C. Sec. 5317 (the currency reporting requirement). The district court held that Meixner's duty to file attached at the time of the first stop on the jetway and that her belated efforts to comply with the reporting requirements did not negate her earlier failure to file.

II

The district court's entry of summary judgment is reviewable de novo. Allen v. A.H. Robins Co., 752 F.2d 1365, 1368 (9th Cir.1985).

In order to have standing to challenge a forfeiture action, a claimant must claim " 'to own the article or merchandise or to have an interest therein.' " United States v. 1982 Sanger 24' Spectra Boat, 738 F.2d 1043, 1046 (9th Cir.1984), quoting United States v. $15,500 in United States Currency, 558 F.2d 1359, 1360 (9th Cir.1977).

The district court correctly found that Meixner had a possessory interest in the currency she asserted she was carrying for her husband. However, the district court held that an individual must have an ownership interest in seized property to have standing to contest its forfeiture. This ruling directly conflicts with our decision in 1982 Sanger, which specifically held that a lesser property interest such as possession is sufficient to grant standing to a claimant in a forfeiture proceeding. ⁴ 738 F.2d at 1046.

Meixner had and has continually asserted a possessory interest in the defendant currency. Under 1982 Sanger, she has standing to challenge its forfeiture. ⁵ The district court therefore erred in finding that Meixner lacked standing to contest the instant forfeiture proceedings.

III

The government seeks forfeiture of the currency under 31 U.S.C. Sec. 5317(b) (1982), which provides for the seizure and forfeiture of currency transported in violation of the reporting requirement, 31 U.S.C. Sec. 5316 (1982). Section 5316(a) requires an individual, his agent or bailee to file a report "when the person, agent, or bailee knowingly--(1) transports or has transported monetary instruments of more than $5,000 at one time--(A) from a place in the United States to or through a place outside the United States...." (Emphasis added.)

Meixner points to the "knowingly" language in this statute and argues that an element of a section 5316 violation is that the person transporting the currency know that he or she is doing so in violation of the reporting requirement. Meixner argues that the government's case consequently must fail as she did not know she was required to report currency which, although in her possession, belonged to her husband.

The plain language of the statutory provisions, 31 U.S.C. Secs. 5316-5317, does not include knowledge of the reporting requirement as an element for forfeiture. The only knowledge requirement is that the person know that he or she is transporting more than $5,000 ⁶ out of the country.

Meixner's argument concerning knowledge of the reporting requirement is based on cases which construe the criminal provisions of the Currency and Foreign Transactions Reporting Act. E.g., United States v. Chen, 605 F.2d 433, 434 (9th Cir.1979) (issue was whether defendant willfully violated currency reporting requirement as prohibited by what is now 31 U.S.C. Sec. 5322). The forfeiture provision of section 5317(b) contains no similar willfulness requirement.

As the Second Circuit has recently noted, the decisions are not unanimous is holding that proof of knowledge of the reporting requirement is not required for forfeiture. See United States v. $26,600 in U.S. Currency, 777 F.2d 111, 112 (2d Cir.1985) (per curiam). The Eleventh Circuit has recently required a showing of knowledge. In United States...