U.S. v. Dickinson, 537

• Decision Date: 21 April 1983
• Docket Number: D,No. 537,537
• Citation: 706 F.2d 88
• Parties: UNITED STATES of America, Appellee, v. John DICKINSON, Appellant. ocket 82-1230.
• Court: U.S. Court of Appeals — Second Circuit

Page 88

706 F.2d 88

UNITED STATES of America, Appellee, v. John DICKINSON, Appellant.

No. 537, Docket 82-1230.

United States Court of Appeals, Second Circuit.

Argued Nov. 23, 1982.

Decided April 21, 1983.

Michael H. Metzger, San Francisco, Cal. (Nina Wilder, Law Offices of Judd C. Iversen, P.C., San Francisco, Cal., of counsel), for appellant.

Peter A. Norling, Asst. U.S. Atty., E.D.N.Y., Brooklyn, N.Y. (Raymond J. Dearie, U.S. Atty., E.D.N.Y., Jane Simkin Smith, Asst. U.S. Atty., Brooklyn, N.Y., of counsel), for appellee.

Before PIERCE, WINTER and PRATT, Circuit Judges.

WINTER, Circuit Judge:

John Dickinson appeals from a judgment of conviction entered in the United States District Court for the Eastern District of New York after a four day jury trial before Judge Edward R. Neaher. Dickinson was found guilty of one count of wilfully failing to file a report of the transportation of currency outside the United States as part of a pattern of illegal activity, a felony under the enhancement provision of the Currency and Foreign Transactions Reporting Act, 31 U.S.C. Sec. 1059(2) (1976). He was also convicted on three counts of making false statements in a passport application, a violation of 18 U.S.C. Sec. 1542 (1976). Dickinson appeals only the conviction under section 1059(2). Since we believe that conviction was based on an erroneous interpretation of section 1059(2), we reverse. However, Dickinson's conviction on the predicate misdemeanor offense of failure to file a report of the transportation of currency outside the United States, in violation of 31 U.S.C. Sec. 1101 (1976), survives the reversal of his conviction on the felony charge and we therefore remand to the district court for entry of a judgment of conviction and resentencing.

BACKGROUND

On August 29, 1980, Dickinson, traveling under the assumed name "John Root," arrived at Heathrow Airport in England. In the course of a routine customs check, British officials discovered that "Root" was carrying $860,000 in United States currency and had minute traces of marijuana in his possession. In response to questioning, Dickinson gave his home address as 625 Post Street, San Francisco. He told British officials that he worked for "Sumo Petroleum Products," a San Francisco oil company, and that he was traveling through the Middle East and on to Hong Kong in order to secure oil contracts. Dickinson indicated that he had carried substantial sums of currency on previous business trips with similar itineraries.

Since Dickinson had violated no British laws, the agents at Heathrow allowed him to continue on his way. However, British authorities contacted the United States Embassy in London and told them that "Root" was carrying a large amount of United States currency and might also possess marijuana. The embassy in turn relayed this information to customs agent Wayne Yamashita in San Francisco, whose investigation revealed that Sumo Petroleum Products did not exist and that 625 Post Street was a mail drop. As a consequence, Yamashita placed a "look-out" description of "Root" into the Treasury Enforcement Computer Systems (TECS).

On September 3, 1980, Dickinson, still traveling under the name "Root," arrived at San Francisco International Airport on a flight from Hong Kong. Customs agents intercepted him and a pat down search disclosed that he was carrying several thousand dollars in cash.

After several evasive answers to questions posed by the inspectors, Dickinson invoked his Miranda rights and asked to contact his attorney, Michael Metzger. A customs agent also spoke to Metzger, and arrangements were made for the attorney to meet with Dickinson outside the customs area. The agent allowed Dickinson to go to the meeting with Metzger alone. The same customs agent was later informed by Metzger that he had in fact met with Dickinson outside the customs area and, after a discussion, Dickinson had left Metzger saying he would return and resolve the customs matter. However, Dickinson never returned to the customs area. A search of his luggage after his disappearance revealed documents indicating transactions with Hong Kong and Canadian banks and with an investment company in Macao.

A warrant was issued for Dickinson's arrest in the name of "John David Root," but he remained a fugitive for over a year. In October, 1981, customs agent Donald Grattan spotted "Root" in East Hampton, New York and approached him. Dickinson gave the name "William Parker" and produced a Florida driver's license in that name. After a few other identification questions, Grattan placed Dickinson under arrest. Customs agents seized the rental car which Dickinson had been driving, along with a black bag and suitcase which were in the car. Dickinson was found to be carrying identification documents in the names of "John Root III," "William Parker," and "Phillip Gerard Lavasseur." The black bag contained birth certificates, a driver's license, and a passport in the name of "Rene Lionel Levesque." The suitcase contained $50,000 in cash.

Dickinson was charged with and convicted of three misdemeanor counts of making false statements in a passport application in violation of 18 U.S.C. Sec. 1542. He does not appeal from those convictions. He was also charged with one felony count under 31 U.S.C. Sec. 1059(2), the so-called enhancement provision of the Currency and Foreign Transactions Reporting Act (the Act). Violations of the Act are, without more, misdemeanors. See, e.g., 31 U.S.C. Sec. 1058 (1976). Section 1059, however, enhances some violations to felony status and provides that:

Whoever wilfully violates any provision of this chapter where the violation is--

(1) committed in furtherance of the commission of any other violation of Federal law, or

(2) committed as part of a pattern of illegal activity involving transactions exceeding $100,000 in any twelve-month period, shall be fined not more than $500,000 or imprisoned not more than five years, or both.

The original felony complaint against Dickinson set forth what may be termed a multiple misdemeanor violation of section 1059(2); that is, the government offered to prove a violation of the enhancement provision through a pattern of violations of the Act. However, the indictment, the pretrial proceedings, and the government's opening statement all proceeded on a much more expansive theory. The prosecution's case amounted to: (i) a single violation of a reporting provision of the Act, 31 U.S.C. Sec. 1101, involving the transportation of more than $100,000 in currency; (ii) multiple violations of federal passport laws in the use of false passports in the Hong Kong banking transactions, those transactions also involving sums in excess of $100,000; and (iii) a variety of highly suspicious documents and activities suggesting a laundering of money in excess of $100,000, possibly derived from criminal activities.

In support, the government offered the evidence of Dickinson's encounter with authorities in London's Heathrow Airport to show that Dickinson had transported $860,000 from the United States to another country without reporting that fact to customs authorities, a violation of 31 U.S.C. Sec. 1101. It also showed transactions with the Nan Yang Bank in Hong Kong, made with the aid of false passports, violations of 18 U.S.C. Sec. 1542. These transactions included two deposits, of $90,000 and $20,000 respectively, into an account held jointly in the names of John David Root and Marie Lacle, (Dickinson's companion), and a credit in the amount of $49,308 in another account. Other evidence included: (i) the cash carried by Dickinson in San Francisco and East Hampton; (ii) a promissory note to "Root" for $307,357 from the Nan Sun Investment Company in Macao; (iii) two deposits made to the account of "John Root" in the Bank of Nova Scotia for $115,530 and $100,000, both on August 5, 1980; (iv) a yellow "total sheet" seized from his luggage in San Francisco which was partially in Dickinson's handwriting and appeared to show the prices of a commodity listed by samples of various weights measured in kilograms; (v) a number of documents found on Dickinson's person, such as birth certificates and drivers' licenses which bore a variety of identities; (vi) Dickinson's itinerary between August 29 and September 3, 1980, which included travel stops in cities noted for narcotics activity and (vii)

the lack of any record of Dickinson's having filed federal income tax returns between 1978 and 1980.

DISCUSSION

The Act establishes a scheme requiring various persons and financial institutions to keep records and to file reports concerning certain transactions, both domestic and foreign, involving the transfer of currency and monetary instruments. The violation of a specific provision of the Act or its concomitant regulations is a misdemeanor except in circumstances constituting a violation of section 1059, the enhancement provision quoted above. We are directed to only one other reported case involving a prosecution under section 1059(2), United States v. Beusch, 596 F.2d 871 (9th Cir.1979), which did not involve the same issue in the same context as is presented to us. The claims raised, therefore, are novel.

The government argues that the enhancement provision applies when it proves a single violation of the Act, at least one other illegal act, and a pattern of similar or related suspicious behavior, all of which involve more than an aggregate amount of $100,000. Dickinson contends, on the other hand, that the pattern of illegal activity must involve repeated violations of the Act itself, related to each other, and together involving more than $100,000. We believe the latter interpretation is correct, although we dispense with any pretense that the legislative history and other relevant criteria disclose a clearly marked trail.

While the language of section 1059(2) itself offers no conclusive answer, it is more supportive of Dickinson's...