U.S. v. Ackerman, 81-1571

• Decision Date: 02 May 1983
• Docket Number: No. 81-1571,81-1571
• Citation: 704 F.2d 1344
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Herman ACKERMAN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1344

704 F.2d 1344

UNITED STATES of America, Plaintiff-Appellee, v. Herman ACKERMAN, Defendant-Appellant.

No. 81-1571.

United States Court of Appeals, Fifth Circuit.

May 2, 1983.

Linda Broocks, Houston, Tex., for defendant-appellant.

Ronald C.H. Eddins, Asst. U.S. Atty., Fort Worth, Tex., for plaintiff-appellee.

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

Before BROWN, GOLDBERG and HIGGINBOTHAM, Circuit Judges.

JOHN R. BROWN, Circuit Judge:

This case began with a foolish decision and ends, we hope, with a wise one. Herman Ackerman presented a false declaration form to U.S. Customs officials while attempting to bring some imported jewelry into the United States. In September of 1981, he was convicted by a jury of having violated 18 U.S.C. Sec. 542 ¹ and was sentenced to a three-year period of probation. Ackerman now appeals his conviction, contending that the district court erred (1) by instructing the jury that the false statements on his customs declaration form were material, (2) by admitting testimony concerning statements he made to a Customs official before he received Miranda warnings, (3) by misleading the jury by reading an edited version of the criminal statute, and (4) by giving the jury a supplemental instruction which discussed the meaning of the term "motive." We reject Ackerman's arguments and affirm the conviction.

On July 15, 1981, Ackerman, a jewelry importer, was returning from Mexico to New York City, his home, with newly purchased Mexican jewelry worth $11,341.88. Before landing at his first United States port of entry, Dallas/Fort Worth Regional Airport, he filled out one Customs declaration form showing the true value of the jewelry and another showing a value of $242. Ackerman had both the original and several blank invoices from Mexican merchants with whom he had done business. He filled out two invoices to substantiate the $242 figure.

At Customs, Ackerman deliberately made the wrong choice. He presented the false declaration form and produced the false invoices in support of the form. ² The Customs inspector, Terry Cromer, became suspicious and invited Ackerman to accompany him to a secondary inspection room, where he asked him to empty his pockets. At that point Ackerman stated, "These items are all free of duty." Ackerman objects to the admission of this statement at trial.

After Ackerman emptied his pockets, Cromer discovered the truthful declaration form, the authentic Mexican invoices, and the remaining blank invoices. He then explained to Ackerman the civil penalties concomitant to the presentation of a false declaration. ³ 3] Ackerman replied by words to the effect of "Can't we take care of this problem?" Ackerman objects also to the admission of this second statement at trial.

Approximately one hour later, special agents ⁴ with Customs arrived. One of these agents advised Ackerman of his rights, in accordance with Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Ackerman chose to answer the agents' questions and admitted having presented a false declaration. Ackerman does not object to the introduction at trial of these statements made after he was informed of his rights.

The Court's Instruction as to Materiality

In U.S. v. Ven-Fuel, 602 F.2d 747 (5th Cir.1979), cert. denied, 447 U.S. 905, 100 S.Ct. 2987, 64 L.Ed.2d 854 (1980), this Court reversed a corporation's conviction for violations of 18 U.S.C. Sec. 542, the statutory section under which Ackerman was convicted. In Ven-Fuel we wrote, with one eye cocked toward the Norton Anthology of American Literature,

We think it likely that fraud took place,

But materiality was not shown in this case.

So while the Government will no doubt be annoyed,

We declare the conviction null and void.

602 F.2d at 749.

Although 18 U.S.C. Sec. 542 does not expressly require that a fraudulent or false statement be material, we recognized in Ven-Fuel "that for the statute to make sense, materiality must be read into it." 602 F.2d at 752. We set out the four essential elements which the government must prove in order to secure a conviction under 18 U.S.C. Sec. 542: (1) the defendant made a false statement, (2) which was material and which (3) he knew to be false, by which (4) he introduced or attempted to introduce imported goods into interstate commerce. 602 F.2d at 752-53.

In this case, the court instructed the jury that Ackerman's false statements were material. The court stated,

The making of a false declaration or statement to U.S. Customs is not an offense unless the declaration or statement made is a material declaration or statement. The issue of materiality, however, is not submitted to you for your decision but rather is a matter for the decision of the Court. You are instructed that the declaration charged in the indictment is a material declaration.

Ackerman contends that the instruction impermissibly directed a verdict against him on an element of the charged offense. We certainly agree with Ackerman that "[n]o fact, not even an undisputed fact, may be determined by the Judge." Roe v. U.S., 287 F.2d 435, 440 (5th Cir.), cert. denied, 368 U.S. 824, 82 S.Ct. 43, 7 L.Ed.2d 29 (1961). We hold, however, that the materiality requirement of Sec. 542 involves a legal issue to be decided by the court. This interpretation of the statute conforms to that given to 18 U.S.C. Sec. 1001, which proscribes the making of false statements to government agencies. As with Sec. 542, the courts have read a requirement of materiality into Sec. 1001, the test being whether a statement "has a natural tendency to influence, or was capable of influencing, the decision of the tribunal in making a determination required to be made." U.S. v. Krause, 507 F.2d 113, 118 (5th Cir.1975). Under Sec. 1001, "[t]he materiality of a statement rests upon a factual evidentiary showing but the ultimate decision is a legal one." U.S. v. Beer, 518 F.2d 168, 172 (5th Cir.1975). Likewise, under Sec. 542, the ultimate decision as to whether a false statement is material is a legal rather than a factual issue. Ven-Fuel, 602 F.2d at 753. Cf. United States v. Johnson, 700 F.2d 163 (5th Cir.1983) (now pending on rehearing en banc) (in criminal conviction for interstate transportation of a falsely made security and for causing interstate telephone calls to be made pursuant to a scheme of securities fraud, court properly determined that documents in question were securities as a matter of law.)

The trial court was correct in concluding that the false statement in Ackerman's declaration was indeed material. Ackerman deliberately undervalued his jewelry by over $11,000. His false statement was deliberately designed to change the way in which his goods were handled at Customs. It was capable of influencing and had a natural tendency to influence the Customs agent. If successful in his deception, Ackerman would have evaded the requirement that he produce certificates of origin for his imported goods or else place those goods in bond. The statement is not rendered immaterial by the fact that the goods were duty-free, moreover, for Sec. 542 can be violated "whether or not the United States shall or may be deprived of lawful duties." 18 U.S.C. Sec. 542.

Statements Made Prior to Miranda Warnings

Miranda requires that prior to custodial interrogation an accused must be advised of his constitutional rights to remain silent, to consult with counsel and to have a lawyer appointed if he is financially or otherwise unable to obtain one. Any waiver of these rights must be made intelligently and knowingly. Statements obtained in violation of those requirements are not admissible in court.

Miranda applies only to statements elicited in the course of custodial interrogation. Miranda, 384 U.S. at 444, 86 S.Ct. at 1612, 16 L.Ed.2d at 706; Rhode Island v. Innis, 446 U.S. 291, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980). In Innis, the Supreme Court stated that

the special procedural safeguards outlined in Miranda are required not where a suspect is simply taken into custody, but rather where a suspect in custody is subjected to interrogation.

446 U.S. at 300, 100 S.Ct. at 1689, 64 L.Ed.2d at 307.

Ackerman objects to the use at trial of two statements made by him before he was given the Miranda warnings.

He first complains of the use of his statement to Inspector Cromer, "These items are duty-free." This comment was made almost immediately after Ackerman, Cromer and Lupe Ybarra, a second Customs inspector, had entered the secondary inspection room, just after Cromer had asked Ackerman to empty his pockets. We conclude that at that time Ackerman was not in custody within the compass of Miranda.

The second statement, testified to by Cromer, was to the effect of "Can't we take care of this?" ⁵ Ackerman made the statement after Cromer had searched his pockets and had found the true Mexican invoices, the accurate declaration form, and the blank invoices. Recognizing the great latitude which customs officers have in conducting border investigations, we are inclined to doubt Ackerman's claim that he was in custody at the moment the second statement was made. We do not reach that question, however. Even if Ackerman was in custody at that time, and even if the statement was made in reply to interrogation or its "functional equivalent," Innis, 446 U.S. at 301, 100 S.Ct. at 1689, 64 L.Ed.2d at 308, its admission clearly was harmless error.

In United States v. Salinas, 439 F.2d 376 (5th Cir.1971), this Court held that being subjected to a routine Customs inspection and border search does not place an individual in custody for Miranda purposes.

Thousands of persons enter the country daily and are subject to some degree of detention while their luggage is searched and they are asked routine questions concerning citizenship, destination, whether they have items to declare, questions regarding contraband, and the like. To hold that...