U.S.A. v. Beras, 98-1787

• Decision Date: 07 July 1999
• Docket Number: No. 98-1787,98-1787
• Parties: (1st Cir. 1999) UNITED STATES, Appellee, v. FRANCISCO A. BERAS, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

Page 22

183 F.3d 22 (1st Cir. 1999)

UNITED STATES, Appellee, v. FRANCISCO A. BERAS, Defendant, Appellant.

No. 98-1787.

United States Court of Appeals for the First Circuit.

Submitted May 7, 1999.

Decided July 7, 1999.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO

Julio E. Gil De Lamadrid, Jose Neil Pena Senati, and Marisel Pena Senati on brief for appellant.

Camille Velez-Rive, Assistant United States Attorney, Jorge E. Vega-Pacheco, Assistant United States Attorney, and Guillermo Gil, United States Attorney, on brief for appellee.

Before Stahl, Circuit Judge, Kravitch,^* Senior Circuit Judge, and Lipez, Circuit Judge.

STAHL, Circuit Judge.

Defendant-appellant Francisco A. Beras was convicted by a jury for failing to report that he was transporting over $10,000 in currency out of the United States in violation of 18 U.S.C. § 2 and 31 U.S.C. §§ 5316(a)(1)(A) & 5322, and for making a false statement in violation of 18 U.S.C. §§ 2 & 1001. The district court sentenced Beras to twelve months' imprisonment and also ordered him to forfeit the $138,794 that he was transporting. On appeal, Beras challenges his convictions, the court's sentence, and its forfeiture order. After careful consideration of Beras's arguments, we affirm his convictions and the sentence, but reverse the forfeiture order and remand for further proceedings consistent with this opinion.

I. Background

In reviewing the court's denial of defendant's motion to suppress, we recite the facts as found by the district court to the extent they are not clearly erroneous. See United States v. McCarthy, 77 F.3d 522, 525 (1st Cir. 1996). On May 24, 1997, Beras and co-defendant Carmen Ortiz were stopped at the jetway in the Luis Munoz Marin International Airport in Carolina, Puerto Rico by United States Customs Agent Victor Ramos as they were attempting to board a flight destined for Santo Domingo, Dominican Republic. Ramos asked Beras and Ortiz for an interview and the two acquiesced. Ramos then identified himself as a customs officer and explained that passengers transporting more than $10,000 in currency are required to file a report. Both Beras and Ortiz indicated that they understood the requirement. Ramos asked whether either of them was carrying more than $10,000. Each answered no. Ramos next asked how much currency each passenger was transporting. Ortiz stated that she was transporting $3,000 and Beras stated that he was transporting $2,500. Ramos asked Ortiz to show him the currency she was transporting, and Ortiz produced an envelope that appeared to contain about $3,000. Ramos asked Beras to show him the currency that he was transporting, and Beras opened his wallet, showing cash totaling about $5,000.

During the interview, Ramos noticed a bulky area in the lower part of each passenger's legs. Ramos called a female agent and asked her to pat down Ortiz. The pat down revealed bundles of cash hidden inside each of Ortiz's socks. Ramos conducted a pat down of Beras and felt a bulge in Beras's lower leg. Ramos asked Beras to show him the contents of the bulge. Beras lifted up both his pant legs and removed money that he was carrying in his socks. Ramos placed Beras and Ortiz under arrest and escorted them to the Customs inspection area where the two were subsequently searched. The search revealed $138,794 in cash.

On June 11, 1997, a grand jury returned a three-count indictment against Beras and Ortiz. Count One charged that Beras and Ortiz had aided and abetted each other and were about to transport monetary instruments in excess of $10,000 from Puerto Rico to the Dominican Republic, without first filing a report. See 18 U.S.C. § 2 and 31 U.S.C. §§ 5316(a)(1)(A) & 5322. Count Two sought criminal forfeiture of the $138,794. See 18 U.S.C. § 982. Count Three charged Beras and Ortiz with aiding and abetting each other while making a false statement as to a material fact, see 18 U.S.C. §§ 2 & 1001, when defendants stated that they were carrying less than $10,000. Before trial, Ortiz pleaded guilty as to Count One and the government dismissed the other charges against her.

Beras moved to suppress the evidence that was obtained as a result of his exchange with Ramos, alleging that it was obtained in violation of his Fourth Amendment rights. Following a hearing, a magistrate judge issued a Report and Recommendation that the motion be denied under the border search exception to the Fourth Amendment. In the alternative, the magistrate found that the pat down of Beras's legs was supported by reasonable suspicion. The district court adopted the magistrate's Report and Recommendation and denied the suppression motion.

A jury trial began on February 10, 1998. During trial, Beras objected to the government's introduction into evidence of a blank United States Customs form 4790 and two posters, arguing that they had not been disclosed to him during discovery and therefore were inadmissible at trial.¹ The court overruled Beras's motion with respect to the customs form but granted the motion with respect to the posters. After a two-day trial, the jury returned a guilty verdict as to Counts One and Three.

Following the trial, the government moved for an order of forfeiture pursuant to Count Two of the indictment. The court granted the motion, ordering that Beras and Ortiz forfeit $138,794 as property used by them during the commission of the crime alleged in Count One of the indictment.

On May 26, 1998, the district court, after a hearing, sentenced Beras to twelve months and one day of imprisonment, three years of supervised release, and imposed a special fine of $100.

On appeal, Beras claims (1) that the district court erred in denying his motion to suppress; (2) abused its discretion in admitting evidence that had not been produced during discovery; (3) made a number of errors in calculating his sentence; and (4) that the forfeiture order violates the Eighth Amendment.

II. Discussion

A. Motion to Suppress

In his challenge to the district court's denial of his motion to suppress, Beras contends that the exchange between him and Ramos constituted a de facto arrest that was not supported by probable cause. We review the court's findings of fact for clear error and review de novo its conclusions of law and its rulings on the constitutionality of the government's conduct. See United States v. Acosta-Colon, 157 F.3d 9, 13-14 (1st Cir. 1998).

There is no question that Ramos's initial questioning of Beras did not infringe Beras's Fourth Amendment rights. See Florida v. Royer, 460 U.S. 491, 497 (1983) ("[L]aw enforcement officers do not violate the Fourth Amendment by merely approaching an individual . . . in [a] public place, by asking him if he is willing to answer some questions, by putting questions to him . . . or by offering in evidence in a criminal prosecution his voluntary answers to such questions.") (plurality opinion). Thus, the issue is whether Ramos was permitted to pat down Beras's legs. The government contends that the pat down was a routine border search that falls within the border search exception to the Fourth Amendment.

It is well established that "the Fourth Amendment's balance of reasonableness is qualitatively different at the international border than in the interior." United States v. Montoya de Hernandez, 473 U.S. 531, 538 (1985). Under the border search exception, "[r]outine searches of the persons and effects of entrants are not subject to any requirement of reasonable suspicion, probable cause, or warrant." Id. (emphasis added). The Supreme Court, however, has not yet addressed the issue of whether the border search exception applies to outgoing as well as incoming travelers. Nor has this circuit ruled on the issue. But see Acosta-Colon, 157 F.3d at 13 (suggesting, in dicta, that the border search exception would apply if "the bags or any of the suspects were required to pass through U.S. Customs, or were involved in any international border crossing"). Every other circuit to consider the issue, to our knowledge, has held that the border search exception applies to outgoing as well as incoming travelers.² See United States v. Ezeiruaku, 936 F.2d 136, 143 (3d Cir. 1991); United States v. Berisha, 925 F.2d 791, 795 (5th Cir. 1991); United States v. Udofot, 711 F.2d 831, 839-40 (8th Cir. 1983); United States v. Ajlouny, 629 F.2d 830, 834-35 (2d Cir. 1980); United States v. Stanley, 545 F.2d 661, 667 (9th Cir. 1976); cf. United States v. Hernandez-Salazar, 813 F.2d 1126, 1138 (11th Cir. 1987) (without deciding whether the border search exception "applies equally in all respects to incoming and outgoing searches," holding that the Fourth Amendment "permits warrantless searches of persons and property departing the United States on the basis of reasonable suspicion that a currency reporting violation is occurring"). These cases have drawn support from dicta in California Bankers Ass'n v. Shultz, 416 U.S. 21, 63 (1974), where the Supreme Court stated: "[T]hose entering and leaving the country may be examined as to their belongings and effects, all without violating the Fourth Amendment."

We join our sister circuits and conclude that the border search exception to the Fourth Amendment applies to outgoing travelers. In our view, there is a convincing policy justification for extending the exception. The border search exception arises from the "longstanding concern for the protection of the integrity of the border[, . . . a] concern [that] is, if anything, heightened by the veritable national crisis in law enforcement caused by smuggling of illicit narcotics." Montoya de Hernandez, 473 U.S. at 538. As the Third Circuit has recognized, this concern also arises with respect to outgoing travelers:

National interests in the flow of currency justify the diminished recognition of privacy inherent in crossing into and out of the borders of the United States . . . . Although there is not the slightest...