U.S. v. Alzate-Restreppo

• Decision Date: 13 November 1989
• Docket Number: ALZATE-RESTREPP,D
• Citation: 890 F.2d 1061
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Jairoefendant-Appellant. NO. 88-5080.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1061

890 F.2d 1061

UNITED STATES of America, Plaintiff-Appellee, v. Jairo ALZATE-RESTREPPO, Defendant-Appellant.

NO. 88-5080.

United States Court of Appeals Ninth Circuit.

Argued and Submitted June 30, 1989.

Decided Nov. 13, 1989.

Elsa Leyva, O'Neill & Lysaght, Santa Monica, Cal., for defendant-appellant.

Gary S. Lincenberg, Asst. U.S. Atty., Los Angeles, Cal., for plaintiff-appellee.

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

Before ALARCON and NELSON, Circuit Judges, and PATEL, ^* District Judge.

ALARCON, Circuit Judge:

Jairo Alzate-Restreppo appeals from the judgment entered upon his conviction after a bench trial for failure to report an attempt to transport more than $10,000 out of the United States in violation of 31 U.S.C. Secs. 5316(a)(1)(A) and 5322(A), and making a false statement to an officer of the United States Customs Service in violation of 18 U.S.C. Sec. 1001 (1982). He seeks reversal on the following grounds:

One. The conviction for failing to report his attempt to export more than $10,000 out of the United States must be reversed because the trial judge believed his testimony that he did not know that he was required to make a report.

Two. A false statement to a customs officer who is engaged in a criminal investigation that has focused on the defendant falls within the "exculpatory no" exception to section 1001. Because we have concluded that the evidence was sufficient to show a violation of each statute and that the "exculpatory no" defense is inapplicable under these facts, we affirm.

I PERTINENT FACTS

On October 23, 1987, Alzate-Restreppo checked in at the Avianca ticket counter at 8:15 p.m. He had a ticket on flight No. 081. That flight was scheduled to depart to Bogota, Colombia, at 9:20 p.m. Alzate-Restreppo was observed pulling a suitcase toward the ticket counter by Senior Special Agent Robert Czyrklis of the United States Customs Service. Alzate-Restreppo was bent over at the waist. Czyrklis noticed an "abnormally large bulge" in Alzate-Restreppo's waist area. Czyrklis testified that Alzate-Restreppo removed his airline ticket and a three-quarters of an inch wad of currency from an inside pocket of his jacket "with some difficulty and awkwardly" without unbuttoning his jacket.

A notice in English and Spanish advising passengers of currency transportation reporting requirements was posted at the Avianca check-in counter. At approximately nine o'clock two additional notices were placed in the boarding area by Peter David Thompson, a Criminal Investigator for the United States Customs Service. Investigator Thompson also made an announcement in English and Spanish of the currency reporting requirements over the public address system in the boarding area. Alzate-Restreppo was in the boarding area when the announcement was made over the public address system. Alzate-Restreppo continued talking with others when the announcement was made in English, but appeared to be listening during the Spanish language version. At approximately 9:05 p.m., passengers began to board Avianca Flight No. 081. At this time Czyrklis entered the jetway. Investigators Thompson and Smith stationed themselves about ten feet away in the jetway.

Alzate-Restreppo entered the jetway at approximately 9:15. Investigator Smith identified himself and informed Alzate-Restreppo that the customs officers were "routinely advising passengers leaving the country of the law concerning the taking of money out of the country." Alzate-Restreppo attempted to brush past Smith and Thompson. Investigator Thompson asked Alzate-Restreppo if he had heard the announcement. Alzate-Restreppo responded that he had heard it. Investigator Thompson asked him how much money he was taking out of the United States. Alzate-Restreppo replied that he did not know how much money he had.

Investigator Thompson asked him to show the money to the customs officer. Alzate-Restreppo pulled out two folded over bundles of money from his pockets. The money in the two bundles totaled $2200. Alzate-Restreppo was asked if he was carrying any additional currency. Alzate-Restreppo replied "No, that's all the money I have."

Investigator Smith then patted down Alzate-Restreppo. He found two lumps. One was in the groin area, the other in the right front pants packet. A package was removed from Alzate-Restreppo's pants. It contained $20,900. Investigator Smith found $4300 in Alzate-Restreppo's right front pants pocket.

Alzate-Restreppo testified that he did not see any signs that advised passengers that transportation of more than $10,000 out of the United States must be reported. He also stated he did not pay attention to the announcement over the public address system. Alzate-Restreppo also testified that he did not understand that he had to make a report if he was taking more than $10,000 out of the United States.

Alzate-Restreppo admitted that he told the officers he did not have more than $2,200. He testified that he lied about the amount of money he was carrying because he thought it was illegal to transport more than $10,000. He did not know that it was illegal not to declare it. He stated that he had the money on his person because he was afraid that corrupt Colombian customs officers would take it away from him.

II SUFFICIENCY OF THE EVIDENCE OF KNOWLEDGE OF THE REPORTING REQUIREMENT

Alzate-Restreppo argues that the government failed to meet its burden of persuading the trial court beyond a reasonable doubt that he had knowledge of the reporting requirements of sections 5316(a)(1)(A) and 5322(a) because the court expressly found that his testimony was credible except for his explanation of the reason he secreted a "wad of money in his pants."

In reviewing a claim that the evidence was insufficient, we are required to view the record in the light most favorable to the government and determine whether a rational trier of fact could find the elements of crime beyond a reasonable doubt. United States v. Dadanian, 818 F.2d 1443, 1446 (9th Cir.1987), modified on other grounds, 856 F.2d 1391 (1988). We must also assume that the district court resolved all evidentiary conflicts in favor of the judgment. United States v. Endicott, 803 F.2d 506, 515 (9th Cir.1986).

Section 5316(a)(1)(A) provides in pertinent part: "[A] person ... shall file a report ... when a person knowingly ... transports, is about to transport ... monetary instruments of more than $10,000 at one time ... from a place in the United States to or through a place outside the United States...." We have previously held that in a prosecution under section 5316(a)(1)(A), the government must prove that the defendant had knowledge that (1) he was transporting funds in excess of $10,000 and (2) the law required him to submit a report. United States v. Ibarra-Alcarez, 830 F.2d 968, 974 (9th Cir.1987).

Alzate-Restreppo does not contend that the proof presented by the government was insufficient to persuade a rational trier of fact beyond a reasonable doubt that he had knowledge of his duty to report an attempt to transport more than $10,000 out of the United States. The government presented substantial evidence of the defendant's knowledge of his duty to report that he was attempting to transport more than $10,000 out of the United States. An announcement in English and Spanish was made on the public address system explaining the currency reporting requirements to all passengers in the boarding area. When questioned by the custom's officer, Alzate-Restreppo admitted that he heard the announcement over the public address system that the transportation of more than $10,000 out of the United States must be reported.

Posters advising passengers of the reporting requirement were placed at Avianca at the check-in counter. Alzate-Restreppo checked in at the Avianca counter. Additional posters were placed in front of the entrance to the jetway.

Alzate-Restreppo signed a custom's declaration when he entered the United States on June 14, 1987 which explained in English and Spanish that transporting more than $10,000 in or out of the United States must be reported. The declaration asked passengers to indicate whether they were transporting more than $10,000. The "no" box in the form was checked. In United States v. Rodriquez, 592 F.2d 553 (9th Cir.1979), we held that the fact that appellant had signed a customs declaration form that set forth the reporting requirement was sufficient to prove that he had knowledge of the duty to make a report. Id. at 557.

After both sides rested, the district court granted Alzate-Restreppo's request to submit a motion for a judgment of acquittal. In his written motion, Alzate-Restreppo stated: "In order for Alzate to be found guilty of count one of the indictment the government must prove beyond a reasonable doubt that Alzate knew of the reporting requirement." In the government's response to the motion for a judgment of acquittal, the district court was reminded that knowledge of the reporting requirement was an essential element of a prosecution pursuant to section 5316(a)(1)(A). Thus, it is quite evident that the judge was made aware by both parties that Alzate-Restreppo could not be convicted of count one of the indictment unless the court was convinced beyond a reasonable doubt of the section 5316(a)(1)(A) reporting requirement.

After listening to counsel's argument, the district court stated: "Gentlemen, I do not have in mind a reasonable doubt at all that the defendant is guilty of both of the offenses charged."

Alzate-Restreppo testified that he did not understand that the law required that he report to the Customs Service the transportation of more than $10,000 out of the United States. Alzate-Restreppo argues that the conviction for a violation of section 5316(a)(1)(A) must be reversed because the district court commented as follows prior to finding him guilty:

For the record, for whatever purpose it...