U.S. v. Berisha

• Citation: 925 F.2d 791
• Decision Date: 21 February 1991
• Docket Number: No. 90-1492,90-1492
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Gjon BERISHA, Defendant-Appellant. Summary Calendar.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 791

925 F.2d 791

UNITED STATES of America, Plaintiff-Appellee, v. Gjon BERISHA, Defendant-Appellant.

No. 90-1492

Summary Calendar.

United States Court of Appeals,

Fifth Circuit.

Feb. 21, 1991.

Rehearing and Rehearing En Banc

Denied April 1, 1991.

Bill Bratton, Dallas, Tex., for defendant-appellant.

Frank Able, Asst. U.S. Atty., Marvin Collins, U.S. Atty., Ft. Worth, Tex., for plaintiff-appellee.

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

Before KING, GARWOOD and DUHE, Circuit Judges.

KING, Circuit Judge:

Defendant-appellant Gjon Berisha (Berisha) appeals from his conviction for failure to file a currency and monetary instrument report, in violation of 31 U.S.C. Sec. 5316(a) and for making false statements in violation of 18 U.S.C. Sec. 1001. The relevant facts in this case are as follows: On February 8, 1989, Berisha proceeded to board an international flight at the Dallas-Fort Worth International Airport. A United States Customs inspector, conducting currency checks of departing passengers, stopped Berisha and asked him whether he was carrying more than $10,000. Berisha stated that he had only $8,000 in his possession and patted a bulge in his front pants pocket. The inspector informed Berisha that if he had more than $10,000 he was required to file a report. Berisha replied that he was aware of the reporting requirements but had only $8,000. The inspector, noticing a bulge in Berisha's other front pants pocket, decided to escort Berisha to a secondary inspection area to count the money. As they turned towards the other area, Berisha attempted to hand a roll of United States currency to his traveling companion. The inspector interceded and found that Berisha had been carrying two rolls of United States currency totalling over $17,000.

After being indicted for failure to file a currency and monetary instrument report and for making false statements, Berisha filed a motion before the district court to suppress what he deemed to be illegally obtained evidence. The district court overruled Berisha's motion to suppress. A jury trial ensued, and Berisha was found guilty on both counts of the indictment.

On appeal, Berisha argues that the district court erred in overruling his motion to suppress the evidence because the airport search violated his fourth amendment rights. He also argues that the evidence was insufficient as a matter of law to sustain a conviction as to Counts One and Two of the indictment. Finally, he argues that the district court erred by admitting into evidence oral statements made by him while under interrogation by a United States Customs officer because the interrogation was not conducted in accordance with his fifth amendment rights under Miranda v. Arizona. ¹

I.

Berisha first attempts to challenge the search as unconstitutional per se because it was based on less than reasonable suspicion and was conducted without a warrant. This court, following the pattern of the Supreme Court's analysis in United States v. Ramsey, 431 U.S. 606, 97 S.Ct. 1972, 52 L.Ed.2d 617 (1977), has adopted a two-part inquiry in order to determine the constitutionality of a warrantless search. See United States v. Williams, 617 F.2d 1063 (5th Cir.1980). First, the court must assess whether the search has been authorized. The search in this case was authorized by statute, namely 31 U.S.C. Sec. 5317(b). This statute states that "[f]or purposes of ensuring compliance with the requirements of section 5316, ² a customs officer may stop and search, at the border and without a search warrant ... any person entering or departing from the United States."

The inquiry that the court must then make is whether the search or seizure itself, as authorized, was reasonable within the meaning of the fourth amendment. The reasonableness of a warrantless, but authorized, search or seizure must be assessed through weighing the governmental policies served by the search or seizure against the personal interests that are adversely affected. Williams, 617 F.2d at 1074. In United States v. Montoya de Hernandez, the Supreme Court stated that "the Fourth Amendment's balance of reasonableness is qualitatively different at the international border than in the interior." 473 U.S. 531, 538, 105 S.Ct. 3304, 3309, 87 L.Ed.2d 381 (1985). In United States v. Ramsey, the Court stated that "searches made at the border, pursuant to the longstanding right of the sovereign to protect itself by stopping and examining persons and property crossing into this country, are reasonable simply by virtue of the fact that they occur at the border...." 431 U.S. 606, 616, 97 S.Ct. 1972, 1978, 52 L.Ed.2d 617 (1977).

This court has, therefore, construed the rationale applied to border searches under the fourth amendment to allow customs agents to make warrantless searches of people entering the country without reasonable suspicion, provided that those searches are routine. ³ See, e.g., United States v. Oyarzun, 760 F.2d 570 (5th Cir.1985); see also United States v. Safirstein, 827 F.2d 1380, 1383 (9th Cir.1987) ("temporary investigatory stop does not rise to the level of a 'seizure' within the meaning of the Fourth Amendment. Officers do not violate the Fourth Amendment by approaching an individual in a public place and putting questions to him if he is willing to answer.").

In the instant case, we agree with the district court's conclusion that the initial detention, including the Customs officer's request that Berisha accompany him to Secondary Customs, constituted a routine border procedure. The detention was neither coercive nor unduly intrusive, and therefore did not constitute a seizure for fourth amendment purposes. ⁴

Berisha argues, however, with respect to the initial detention, that even if under the relevant statute a similar detention of someone entering the United States would be constitutional, the constitutionality of "routine" searches and seizures of outgoing travelers based on no suspicion has not been established in this circuit. In United States v. Salinas-Garza, 803 F.2d 834, 836-37 (5th Cir.1986), this court recognized that some circuits have extended the rationale of the fourth amendment border policy--allowing searches of persons entering the United States without any suspicion of criminal activity--to persons exiting the country. ⁵ We specifically declined to decide the issue in that case because 31 U.S.C. Sec. 5317(b) at that time contained a "reasonable cause" requirement. ⁶ Our inquiry in that case was, therefore, limited to whether reasonable cause existed to justify the search. ⁷

Because we are no longer constrained by statute to find that reasonable cause must exist to support a routine border search of an outgoing traveler, we now turn to the policy considerations for applying the border search principle to exits. We note that both incoming and outgoing border searches have several features in common; for example, the government is interested in protecting some interest of United States citizens, there is a likelihood of smuggling attempts at the border, and the individual is on notice that his privacy may be invaded when he crosses the border. United States v. Stanley, 545 F.2d 661, 667 (9th Cir.1976), cert. denied, 436 U.S. 917, 98 S.Ct. 2261, 56 L.Ed.2d 757 (1978). We also note that the underlying purpose for the foreign transaction reporting requirements was to regulate the export of monetary instruments in order to prevent the use of international currency transactions to evade domestic criminal, tax, and regulatory laws. See California Bankers Ass'n v. Schultz, 416 U.S. 21, 27, 94 S.Ct. 1494, 1500, 39 L.Ed.2d 812 (1974).

Given the substantial national interest in regulating the exportation of domestic currency at the border and the similar features of incoming and outgoing border-crossing searches for fourth amendment purposes, we hold that in the context of a routine stop and search for currency, the rationale applied to border searches under the fourth amendment encompasses persons exiting as well as persons entering our borders. ⁸ We find, therefore, that the detention and inquiry in this case was permissible under the fourth amendment. ⁹

II.

Berisha next argues that the evidence was insufficient to sustain his conviction for violating the reporting requirements of 31 U.S.C. Sec. 5316(a). In order to establish guilt for failure to file a currency and monetary instrument report under 31 U.S.C. Sec. 5316(a), the government must show that the defendant had actual knowledge of the currency reporting requirement and voluntarily and intentionally violated that known legal duty. United States v. Salinas-Garza, 803 F.2d 834 (5th Cir.1986).

Berisha contends that he did not possess the requisite knowledge that a person acting as an "agent or bailee" shall file a report when such person knowingly transports a sum greater than $10,000 from a point within to a point without the United States. He argues that he believed that since he was carrying only $8,000 of his own money and $9,000 for his companion, he was not required under the statute to report the money to the authorities.

The district court concluded that the evidence established beyond a reasonable doubt that Berisha violated the reporting requirements of 31 U.S.C. Sec. 5316(a). In evaluating a challenge to the sufficiency of the evidence, a court must view the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found each element of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 326, 99 S.Ct. 2781, 2792, 61 L.Ed.2d 560 (1979); United States v. Molinar-Apodaca, 889 F.2d 1417, 1423 (5th Cir.1989).

We find ample evidence to support Berisha's conviction. The Customs inspectors took several affirmative steps to make the reporting requirements known to the defendant. ¹⁰ An announcement was played over the public address system and...