Delgado v. U.S., Slip Op. 07-177.

CourtU.S. Court of International Trade
Writing for the CourtR. Kenton Musgrave
Citation536 F.Supp.2d 1328
Docket NumberCourt No. 06-00030.,Slip Op. 07-177.
Decision Date11 December 2007
PartiesMiguel A. DELGADO, Plaintiff, v. UNITED STATES, Defendant.
536 F.Supp.2d 1328
Miguel A. DELGADO, Plaintiff,
Slip Op. 07-177.
Court No. 06-00030.
United States Court of International Trade.
December 11, 2007.

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The Mooney Law Firm (Neil B. Mooney), Tallahassee, FL, for plaintiff.

Jeffrey S. Bucholtz, Acting Assistant Attorney General; Barbara S. Williams, Attorney In Charge, International Trade Field Office, Commercial Litigation Branch, United States Department of Justice (Marcella Powell); Ilena Pattie, Office

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of the Associate Chief Counsel, United States Customs and Border Protection, of counsel, for defendant.



Before the court is a Motion for Judgment on the Agency Record pursuant to USCIT Rule 56.1, wherein plaintiff Michael A. Delgado challenges a decision by the Secretary of the U.S. Department of Homeland Security1 ("DHS" or "the Secretary") to revoke his customs broker's license ("License"). This matter was previously before the court on May 11, 2007, at which point the court remanded the matter to DHS with instructions that a proper notification letter be provided to Mr. Delgado. See Delgado v. United States, 31 CIT ___, 491 F.Supp.2d 1252 (2007). In response to that remand order, the Government has issued to Mr. Delgado a revised notification letter purporting to conform to the requirements of 19 U.S.C. § 1641 and the matter is again before the Court, The court has jurisdiction over this case under Section 641(e) of the Tariff Act of 1930, 19 U.S.C. § 1641(e)(1)2 and 28 U.S.C. § 1581(g) (granting the Court of International Trade exclusive jurisdiction of any civil action to review the revocation of a Customs broker's License by the Secretary of DHS). For the reasons set forth below, the court will again remand the matter to DHS for further consideration consistent with this opinion.

I. Background

The facts in this case were extensively summarized in Delgado, and need not be fully repeated here. Mr. Delgado received his customs brokerage license in September 1989, and opened a customs brokerage firm known as Lancer International in 1990. See Transcript of Proceedings ("Tr.") at 161. On August 24, 2000, a federal grand jury in the Southern District of Florida indicted Mr. Delgado on several felony charges stemming from his alleged involvement in a scheme to introduce liquor into United States commerce without the payment of excise taxes. See Indictment, United States v. Deepak Kumar, et al., Ct. No. 00-0682 (S.D.Fla., Aug. 2000), R. at 173. The indictment charged Mr. Delgado with a total of twenty-nine violations: Fourteen violations of 26 U.S.C. § 5601(a)(11) ("knowingly receiv[ing] distilled spirits knowing and having reasonable grounds to believe that any tax due on such spirits had not been paid,"); fourteen violations of 26 U.S.C. § 5601(a)(12) ("knowingly removing, other than authorized bylaw, distilled spirits on which the tax had not been paid, from the place of storage and from an instrument of transportation"); and one count of conspiracy to commit offenses against the United States in connection with the above violations (18 U.S.C. § 371). Id.

Mr. Delgado was convicted by a jury on twenty-eight of the twenty-nine counts in the indictment. See Judgment, United States v. Miguel Delgado, Ct. No. 00-0682, (S. Dist Fla., Sept. 6, 2001) ("Judgment") R. at 165. The Judgment of the U.S. District Court for the Southern District of Florida ("District Court") was issued without particularized findings or a written opinion, and the jury's verdict was conveyed by a general verdict. Hence, although the conspiracy charge contained seven allegations of "overt acts" committed

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in furtherance of the conspiracy, the jury did not indicate which of the alleged acts were found to have been committed, or by whom. See Indictment, R. at 177-79. At no point in that proceeding was Delgado or any of his alleged co-conspirators accused, indicted, or convicted of violating any law or regulation enforced by Customs. Delgado was sentenced to twenty-seven months in prison and ordered to pay restitution. Judgment, R. at 168-69, 171.

Delgado timely appealed the decision to the U.S. Court of Appeals for the 11th Circuit ("11th Circuit"), where he alleged, inter alia, that the government had not presented sufficient evidence to prove that he committed the substantive acts in the indictment or that he was part of a conspiracy.3 See 11th Cir. Appellate Br. at 10-11, 2002 WL 32144608; United States v. Delgado, et al, 321 F.3d 1338, 1346 (11th Cir.2003) ("Delgado II"). Upon review, the 11th Circuit found that the evidence presented, "when viewed in a light most favorable to the government," was sufficient to support the jury's verdict and affirmed the District Court's decision. Id.

After his release, Mr. Delgado was permitted to continue working in the customs field with the knowledge and oversight of the District Court. R. at 113. In January 2003, Mr. Delgado Med with the agency now known as U.S. Customs and Border Protection ("CBP" or "Customs") his "Customs Broker Triennial Status Report," as required by 19 C.F.R. § 111.30(d). One of the questions in the Triennial Status Report inquired as to whether the broker had "engaged in any conduct that could constitute grounds for suspension or revocation under Title 111.53? [sic] (i.e. convicted of a felony)." R at 272. Mr. Delgado checked the "yes" response to this question, but noted that he was appealing the decision. Id. Further, sometime during mid-2003, "concerns" were raised with CBP in regard to Mr. Delgado's continuing active involvement in the customs field, and an investigation ensued. See R. at 240, 241.

In March 2004, CBP notified Mr. Delgado that he was being charged with several violations of Customs regulations, any one of which constituted grounds for revocation of his Brokers License. Specifically, the notice stated that Mr. Delgado was being charged with violating (1) 19 C.F.R. §§ 111.53(c) and 111.32 (violating Customs law or regulation by Ming false documentation); (2) 19 C.F.R. § 111.53(b) (having been convicted of a felony either involving importation or exportation of merchandise or "arising out of' customs business); and (3) 19 C.F.R. § 111.53(d) (aiding and abetting violation of Customs law). See Notice and Statement of Charges, R. at 153-54.

After several rounds of briefing on the matter, Mr. Delgado was afforded a formal hearing before an Administrative Law Judge ("ALP) on May 18, 2004. See generally, Tr., Vols. I & On December 17, 2004 the ALJ issued a decision recommending license revocation. Recommended Decision ("Rec. Dec.") R. at 34. This recommendation was reviewed by the Secretary, and a decision revoking Delgado's license was issued to Mr. Delgado on December 3, 2005 in the form of a formal notification letter. See Compl. at Ex. A ("Notification Letter").

Delgado filed a timely appeal to this court. Upon initial review of that decision, the court found that, because the Secretary's Notification Letter Decision had provided neither findings of fact nor reasoning on which the decision was based, the decision failed to, meet the statutory

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requirements set forth in 19 U.S.C § 1641. Delgado, 491 F.Supp.2d at 1260. The court remanded the matter to DHS with instructions, inter alia, to issue to Mr. Delgado a new decision properly setting forth the findings of fact and reasoning used therein. Id.

In response to the court's remand, DHS (through Customs) issued to Mr. Delgado, and filed with the court, a revised Notification Letter on June 20, 2007. The revised Notification Letter states that "the Secretary's decision was based solely on the record," and that "the findings of fact and reasons for the decision" are set forth in two DHS action memos, copies of which are included with the letter. Revised Notification Letter at 1. The government asserts that the revised Notification Letter complies with the statutory notification requirements.

Before the court, the plaintiff now contends that the revised Notification Letter is "insufficient," but presents little argument to support that assertion. Instead, the plaintiff alleges several substantive errors both in the ALJ's Recommended Decision as well as in the Secretary's revised Notification Letter. Specifically, he asserts that the Secretary's decision is contrary to law because it is based in part on "banned dicta, erroneous chronology' and other wildly mistaken `facts' as described in the [11th Circuit] Appellate opinion." Pl.'s Resp. to June 20, 2007 Revised Revocation Letter at 2. Mr. Delgado presents a similar argument as to the ALJ's decision, contending that he was wrongfully precluded from litigating relevant facts at the Administrative Hearing because the ALJ improperly applied the doctrine of collateral estoppel to dicta contained in the 11th Circuit's opinion. Mem. in Support of Pl.'s Rule 56 Mot. at 5-6. Mr. Delgado contends further that, inter alia, the. ALJ erroneously concluded (1) that he had violated a customs statute or regulation by making false or misleading statements, and (2) he had been convicted of a felony that involved the "importation" or "exportation" of merchandise and that arose out of the "conduct of his customs business." Id. at 7, 9-11.

In response to Mr. Delgado's arguments, the government asserts that Mr. Delgado "greatly overstates the Secretary's reliance on the appellate decision," and that the, argument is predicated "on a single sentence in the `Background' section of the Memorandum to Elaine Dezenski." Def.'s Mem. Addressing Pl.'s Resp. to June 20, 2007 Revised Revocation Letter at 2. As to Delgado's collateral estoppel arguments, the Government contends that the ALJ's application of collateral estoppel to the Appellate court's recitation of facts was not improper, and that the decision was supported by substantial evidence of record. I...

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  • Delgado v. U.S., Slip Op. 08-103. Court No. 06-00030.
    • United States
    • U.S. Court of International Trade
    • September 29, 2008
    ...of Homeland Security ("the Secretary" or "DHS") pursuant to the Court's order in Slip Op. 07-177, Delgado v. United States, 31 CIT ___, 536 F.Supp.2d 1328 (2007). On May 15, 2008, the Secretary reissued its decision to revoke plaintiff Miguel A. Delgado's Customs broker's license on the gro......
1 cases
  • Delgado v. U.S., Slip Op. 08-103. Court No. 06-00030.
    • United States
    • U.S. Court of International Trade
    • September 29, 2008
    ...("the Secretary" or "DHS") pursuant to the Court's order in Slip Op. 07-177, Delgado v. United States, 31 CIT ___, 536 F.Supp.2d 1328 (2007). On May 15, 2008, the Secretary reissued its decision to revoke plaintiff Miguel A. Delgado's Customs broker's license on the grou......

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